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A pointer on poisonous priority?

12th Jan 2017

In my article of January 2015, I discussed partial priority and the potential issue of poisonous priority and reported referral of the issue to the Enlarged Board of Appeal in case G1/15. In my follow-up article of November 2015, I reported the specific questions that has were referred to the Enlarged Board of Appeal.

Towards the end of last year, the Enlarged Board issued its order on this case.

Under the EPC, entitlement to partial priority may not be refused for a claim encompassing alternative subject-matter by virtue of one or more generic expressions or otherwise (generic “OR”-claim) provided that said alternative subject-matter has been disclosed for the first time, directly, or at least implicitly, unambiguously and in an enabling manner in the priority document. No other substantive conditions or limitations apply in this respect.

This order was an answer to the first question referred to the Enlarged Board. Although there were five questions, the remainder did not need to be answered since the answer to the first question was negative.

The decision and accompanying reasoning has not yet been issued, but the order has led to much discussion. A number of commentators have interpreted the order to mean that the issue of poisonous priority had been eradicated because it suggests that it is possible for priority to be retained for subject-matter and embodiments encompassed by a claim, even if these are not explicitly identified in the claim.

We expect the decision to issue shortly, and we will report to you once this happens.

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.

Andrew Carridge
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