13th February, 2017
On 1st February 2017 the Enlarged Board of Appeal of the EPO published the detailed reasoning supporting its earlier decision in case G1/15, which related to the manner in which partial priority applied to generic “OR”-claims.
The expression “generic “OR”-claim” was introduced by a Memorandum drafted by FICPI in 1973.
The FICPI Memorandum is of particular importance in decision G1/15, as the FICPI Memorandum is recognised as setting out the legislative intent underlying Articles 88(2) and 88(3) EPC, which govern multiple and partial priorities. The decision G1/15 now clarifies a situation where diverging case law had emerged before the Boards of Appeal of the EPO on how partial priority should be assessed for a generic claim. The decision should also bring an end to so-called “poisonous” priorities and "poisonous" divisional applications in Europe.
Importantly, this decision is fully in line with the position promoted by FICPI since 1973. The FICPI Memorandum is indeed confirmed by the decision as authoritative for assessing multiple and partial priorities, in particular for generic claims. The decision is also in full agreement with the amicus brief filed by FICPI on 29 February 2016 in this matter.
FICPI's report is available to download below.