Insights: No More Poison – The Enlarged Board Take a Generous View of Partial Priority

Although the eagerly anticipated decision is not yet available, the order of the Enlarged Board of Appeal in referral G1/15 is now available on the European Patent Register. It reads:

“Under the EPC, entitlement to partial priority may not be refused for a claim encompassing alternative subject-matter by virtue of one or more generic expressions or otherwise (generic “OR”-claim) provided that said alternative subject-matter has been disclosed for the first time, directly, or at least implicitly, unambiguously and in an enabling manner in the priority document. No other substantive conditions or limitations apply in this respect.”

Although the impact cannot be fully understood until the reasoned decision is available, this order suggests that issues of self-collision based on a lack of partial priority (so-called “poisonous priority” and “poisonous divisional”) should no longer apply in EPO proceedings.

Further details to follow once the decision has been made available.