Solving the PCT Priority problem

The ‘joint applicants’ approach to PCT applications would provide an elegant solution to issues of who is entitled to priority claims in PCT applications, suggests Chiara Banas of EIP.

G1/22 and G2/22 are two pending referrals to the Enlarged Board of Appeal (EBA) regarding entitlement to priority. The two questions that were referred were:

1. Does the European Patent Convention (EPC) confer jurisdiction on the European Patent Office (EPO) to determine whether a party validly claims to be a successor in title referred to in Article 87(1)(b) EPC?
2. If question I is answered in the affirmative:

Can a party B validly rely on the priority right claimed in a PCT-application for the purpose of claiming priority rights under Article 87(1) EPC in the case where

1. a PCT-application designates party A as applicant for the US only and party B as applicant for other designated States including regional European patent protection and
2. the PCT-application claims priority from an earlier patent application that designates party A as the applicant and
3. the priority claimed in the PCT-application is in compliance with Article 4 of the Paris Convention?

Article 87(1) EPC states that: