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End to ‘poisonous priority’

The Enlarged Board of Appeal of the European Patent Office (EPO) appears to have put an end to the issue of ‘poisonous priority’.

As a result, inventors can no longer be granted a generally broadened patent if they had a prior European patent application concerning a limited version of the invention. In the UK, for example, a patent on a Nespresso machine was declared invalid because it had broadened possible positions of the holder of the Nespresso capsule in respect of a prior patent application. There is an agreement that prohibits declaring patents invalid in this manner if the broadened patent claims partial priority of the prior patent application. The boards of appeal of the EPO, however, had set conditions for this that blocked partial priority in many cases. The Enlarged Board of Appeal has now decided that such conditions must not be set.

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Alexander van Loon

Alexander van Loon

  • European and Dutch Patent Attorney
  • Senior Associate
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