Editing Priority right (section)

==== European Patent Convention ====

{{EPC Article|87|1}} defines the priority right system under the EPC or more precisely recognise priority rights for first filings in or for States party to the Paris Convention or any Member of the [[World Trade Organization]] (WTO):<ref>Under the European Patent Convention (EPC), rights of priority may be obtained from the filing of patent applications in Members of the World Trade Organization which are not party to the Paris Convention since December 13, 2007, the date of entry into force of the [[EPC 2000]], the revised version of the EPC.</ref>

{{cquote|Any person who has duly filed, in or for

(a) any State party to the Paris Convention for the Protection of Industrial Property or

(b) any Member of the World Trade Organization,

an application for a patent, a utility model or a utility certificate, or his successor in title, shall enjoy, for the purpose of filing a European patent application in respect of the same invention, a right of priority during a period of twelve months from the date of filing of the first application.}}

{{EPC Article|89}} describes the effect of the priority right:

{{cquote|The right of priority shall have the effect that the date of priority shall count as the date of filing of the European patent application for the purposes of Article 54, paragraphs 2 and 3, and Article 60, paragraph 2.}}

As explained by the [[Appeal procedure before the European Patent Office|Enlarged Board of Appeal of the European Patent Office (EPO)]] in its decision [[G 3/93]] of August 16, 1994 (Reasons 4):

{{cquote|Articles 87 to 89 EPC provide a complete, self-contained code of rules of law on the subject of claiming priority for the purpose of filing a European patent application (cf. decision J 15/80, OJ EPO 1981, 213).

The Paris Convention also contains rules of law concerning priority. The Paris Convention is not formally binding upon the EPO. However, since the EPC - according to its Preamble - constitutes a special agreement within the meaning of Article 19 of the Paris Convention, the EPC is clearly intended not to contravene the basic principles concerning priority laid down in the Paris Convention (cf. decision T 301/87, OJ EPO 1990, 335, reasons point 7.5).<ref>[http://www.epo.org/law-practice/case-law-appeals/recent/g930003ep1.html Decision G3/93 of August 16, 1994 of the Enlarged Board of Appeal of the European Patent Office]</ref>}}

Regarding the critical question "What is 'the same invention'?" in {{EPC Article|87|1}}, opinion [[G 2/98]] prescribes a photographic approach to the assessment of priority.<ref>Hans-Rainer Jaenichen, Olaf Malek, [http://216.92.57.242/patentepi/data/epi_03_2008.pdf ''The Assessment of priority cannot demand more than science can deliver or: How to apply the photographic approach in consideration of the resolving of the pictures taken'']{{dead link|date=December 2017 |bot=InternetArchiveBot |fix-attempted=yes }}, [[epi Information]] 3/2008, pp. 91-102.</ref> According to Enlarged Board of Appeal opinion G 2/98, the requirement for claiming priority of "the same invention" means that priority of a previous application in respect of a claim in a European patent application is to be acknowledged only if the skilled person can derive the subject-matter of the claim directly and unambiguously, using [[common general knowledge]], from the previous application as a whole.<ref>European Patent Office, [http://www.epo.org/law-practice/case-law-appeals/recent/g980002ex1.html Opinion of the Enlarged Board of Appeal dated 31 May 2001, G 2/98], point 9: "It means that priority of a previous application in respect of a claim in a European patent application in accordance with Article 88 EPC is to be acknowledged only if the person skilled in the art can derive the subject-matter of the claim directly and unambiguously, using common general knowledge, from the previous application as a whole."</ref>