T 0883/23 - Plausibility and priority

Key points

• In this appeal, the Board found the second medical use claim to be valid (novel and inventive and sufficiently disclosed in the patent). Still, the Board - obiter it seems - held that the priority was invalid because, whereas the application as filed contained the results of a clinical trial, the priority document contained only the protocol for that study (without the results).
• Hence, the 'plausibility' or credibility requirement of G 2/21 r. 74 and r.77 for second medical use claims, applies by analogy to the priority application.
• The Board's headnote formlates it differently: "The Enlarged Board of Appeal determined in G 2/98 that it is a condition for the compliance with the requirement of "the same invention" that the claimed subject-matter is directly and unambiguously derivable from the earlier application. However, the Enlarged Board did not conclude that the requirement of "the same invention" is necessarily satisfied if this condition is fulfilled, irrespective of any technical information associated with the claimed subject-matter, which is only described in the subsequent patent application."

EPO 

The link to the decision can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t230883eu1