This is the second of a two-part article on the rather topical issue of priority date assessment under EPC. The first part was published last month at page 379. To assist readers, the content of the two parts is set out below:
PART 1
0. Introduction and Overview
1. 2001: Enlarged Board of Appeal Decision G0002/98
2. 2003 to 2012: Development of a Strict Approach: T1127/00 to T0476/09
3. Mezzanine: The T0665/00 Approach to Split Priority
PART 2
4. Discussion of the Decade of Development 2003 to 2012
5. 2013: The T1222/11 Approach to Split Priority
6. Specific Embodiments as Priority Domains
7. Split Priorities – Practise
8. Applying the G0002/98 Conclusion to Priority Documents
4. Discussion of the decade of development 2003-2012
4.1 The position in terms of EPO appeal decisions as of late 2012, then, is that, viewed overall, EPO Boards of Appeal have looked for real signs of individualisation in the patent/ application in question to justify claim splitting; and there is evidence that, in some cases, boards have wanted basis for individualisation in the claim in question. T0665/00, supported by T0680/08, contrary to this strict line, takes a different approach which seems aberrant and unlikely to provide a secure basis for action. Based just on the number of boards that have taken the strict approach, there is likelihood that most cases, in the near future at least, will be determined on this basis. That must inform how risk is assessed by patentees/applicants and their opponents in contexts where patent validity hinges on considerations of multiple priority.
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