G 4/19 - Double patenting prohibited under Art. 125 EPC

 Key points

• The decision in G 4/19 was given and the press release can be found here.
• The Enlarged Board “stated that the prohibition on double patenting constitutes a principle of procedural law within the meaning of Article 125 EPC and is generally recognised in the Contracting States.”
• Hence, an application can be refused under Article 125 EPC if it claims the same subject-matter as a European patent which has been granted to the same applicant  (and Article 54(2) and (3) do not apply).

The Enlarged Board of Appeal answered the referred questions as follows:

1. A European patent application can be refused under Articles 97(2) and 125 EPC if it claims the same subject-matter as a European patent which has been granted to the same applicant and does not form part of the state of the art pursuant to Article 54(2) and (3) EPC.
2.1 The application can be refused on that legal basis, irrespective of whether it

a) was filed on the same date as, or
b) is an earlier application or a divisional application (Article 76(1) EPC) in respect of, or
c) claims the same priority (Article 88 EPC) as

the European patent application leading to the European patent already granted.
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