Boards of Appeal

The reasoning of the Boards of Appeal does not change the general principles already applied by the European Patent Office. It is critical to keep track of applicants in a priority-founding application and applicants in a follow-up application claiming priority. It is clearly stated after the decision, T844/18. Here, the European patent, EP 2 771 468, was declared invalid for lack of novelty because priority was not valid. 

Priority

One of the inventors originally listed as an applicant in the priority-founding US patent application was not to be found as an applicant in the subsequent PCT application. This PCT application was later filed as a European patent application. This proved to be invalidating, since priority under Article 87 (1) of the European Patent Office can only be claimed with the same applicant(s) or with formally correct assignment of rights prior to filing. 

Typically, inventors are listed as applicants in U.S. patent applications. The decision is another reminder of the importance of keeping track of both inventors and applicants when filing national patent applications around the world. In this case, invalid priority was devastating, as there was novelty destroying material in the intervening period.