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Wipo Lex, European Patent Organisation Epo, Consolidated Circumstances G 1 22 And G 2 22

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Further, some patentees and applicants could have been nervous that this referral may have resulted in them having to show the validity of the priority claim upon filing / declaring precedence. This is a significant departure from latest case law, where the burden of proof was with the patent proprietor to show that the precedence declare was legitimate when challenged. This implies that the EPO will assume that entitlement to priority is legitimate, offered the declaration of priority is made as required under Article 88(1) EPC. This implies that the entitlement to precedence is considered valid until proven otherwise.

This consolidated choice of the European Patent Workplace (EPO) Enlarged Board of Appeal represents a significant softening of the EPO’s historical stance on assessing formal entitlement to precedence. As well as the extent of the jurisdiction of the EPO, the questions referred to the Enlarged Board relate to eventualities by which a priority application was filed in the name of celebration A, but the subsequent PCT named celebration A… There is a rebuttable presumption under the autonomous regulation of the EPC that the applicant claiming precedence in accordance with Article 88(1) EPC and the corresponding Implementing Laws is entitled to claim precedence.

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