G 4/19 - Referral Double Patenting

Key points

• In pending case T0318/14, the Board has decided to refer questions to the Enlarged Board of Appeal about double patenting.

Questions
1. Can a European patent application be refused under Article 97(2) EPC if it claims the same subject-matter as a European patent granted to the same applicant which does not form part of the state of the art pursuant to Article 54(2) and (3) EPC.


2.1 If the answer to the first question is yes, what are the conditions for such a refusal and are different conditions to be applied where the European patent application was filed

• a) on the same date as, or
• b) as a European divisional application (Article 76(1) EPC) in respect of, or
• c) claiming the priority (Article 88 EPC) in respect of

a European patent application on the basis of which a European patent was granted to the same applicant?



2.2 In particular, in the latter case, does an applicant have a legitimate interest in the grant of the (subsequent) European patent application in view of the fact that the filing date and not the priority date is the relevant date for calculating the term of the European patent under Article 63(1) EPC?






Note 1: the referral number is of course not yet assigned. It is entirely possible that the application is withdrawn before the TBA actually refers the questions to the Enlarged Board.
Note 2: referral number changed  in view of T 0489/14 (28.02.2019)
Note 3: referral number changed  in view of T0831/17 (01.03.2019).
Note 4: referral number changed  in view of G3/19 (09.04.2019).



EPO G4/19 - G0004/19 - G 0004/19  (double patenting EPO)


File   EP2429542


source https://www.patentlitigation.ch/a-referral-to-the-enlarged-board-of-appeal-re-double-patenting-finally/