Yesterday, in a high-profile case relating to CRISPR technology, the EPO confirmed its practice regarding the validity of priority claims.

The opposed patent EP2771468 was filed by applicant A and claimed priority from a patent application filed jointly by applicants A and B. There was no assignment of the priority right from B to A.

The priority claim was found to be invalid and the patent was revoked in light of intervening prior art. The Board of Appeal decided not to refer questions of law to the Enlarged Board of Appeal.

The case is an important reminder that, in Europe, priority is not related to ownership of the underlying inventions in the application. It is a stand-alone right which cannot be divided. Assuming that no assignments of the priority right have taken place, all applicants on an earlier application should be named on a later priority claiming application.

If you have any questions about priority claims please contact Nick Bennett or your usual Cleveland Scott York patent attorney.

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Nick Bennett

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