News From The Epo

Darren Smyth of Marks & Clerk writes to inform the IPKat of a novel determination from the EPO:

Hot off the press as well as non fifty-fifty on the EPO website yet! It tin nevertheless last accessed via the EPO online file inspection.The EPO Board of Appeal caused much consternation alongside its determination T0998/99 (OJ EPO 4/2005, 240), stating that "Article 87(1) EPC does non render for the possibility of filing several applications inward honor of the same plain of report affair as well as hence of the same innovation inward i as well as the same province over the priority menstruum on the footing of a unmarried priority document" (headnote 1). Most observers idea that this concept of "exhaustion of priority" was against both the missive of the alphabet as well as the spirit of the priority provisions of the EPC as well as the Paris Convention.

Fortunately, a recent determination T 0015/01-3.3.4 (relating to EP 0587780), non yet published on the EPO website exactly available via online file inspection, restores sanity as well as states that:

"The board concludes that the priority organisation of the EPC allow patent applicants to claim as well as relish the same priority correct inward to a greater extent than than i European application. The doctrine of exhaustion of priority rights is to last rejected."

Influenza A virus subtype H5N1 referral to the Enlarged Board of Appeal was considered, exactly rejected for the rather strange argue that "the board is non aware that the doctrine of exhaustion of rights has always been applied or explicitly addressed inward the first-instance practise of the EPO, or, alongside the exception of the of determination T 998/99, inward the example police line of the boards of appeal". But I personally neglect to meet what this fact could mayhap accept to create alongside the query of whether a referral is required for ensuring uniform application of police line or settling an of import request of police line (which is the exam for a referral). Surely, the query at upshot must last considered an of import request of law. It is soundless possible for the President volition brand a referral to the EBoA. In the meantime, boards of appeal tin select which determination to follow.

says cheers Darren!