Translation of "Claim to priority" in German

6. Claim to priority (see also F?VI)

For these reasons, the claim to priority from India had been properly made in the PCT applications.

Claim to priority (see also F-VI)

An applicant who wishes to claim priority pursuant to paragraph 1 must file evidence of the display of the products in which the design is incorporated or to which it is applied under the conditions laid down in the implementing Regulation.

An applicant who wishes to claim priority pursuant to paragraph 1 must file evidence of the display of goods or services under the mark applied for under the conditions laid down in the Implementing Regulation.

An applicant or proprietor who does not file within the said period of three months shall lose the right to claim priority for the national trademark from the date of filing of the application or from the date of the Community trademark.

If the requirements for claiming priority are met, and if the applicant wishes to claim priority, he shall indicate in the appropriate box on which earlier application or exhibition the priority is based.

These stipulate that the right of priority shall be lost if the requirements concerning the claim to priority have not been satisfied.

On 24 March 1982, the Receiving Section of the EPO issued the decision under appeal, refusing the request for correction on the ground that at the time of filing the application there was no reference to a claim to priority.

The Board does not, however, accept the Respondent's submission that the inclusion of a "disclaimer" in comparison with the priority document does not ever require direct support in order successfully to claim priority.

Since Ms Waldstreicher was named as one of the inventors, prima facie her claim to legal priority was strong.

Generally speaking, in proceedings before the EPO, the validity of a claim to priority is only assessed if state of the art made available to the public on or after the priority date claimed is potentially novelty-destroying or relevant to inventive step for at least some of the subject-matter claimed.

The question therefore arises whether the general understanding of the effect of Article 4 Paris Convention is that the deposit of an industrial design clearly gives a right to claim priority when making a later patent application in respect of an invention disclosed by the deposited design.

In particular, in a number of decisions the words "provided that it gives rise to the claiming of a limited number of clearly defined alternative subject-matters" have been understood as a further test to be complied with for a claim to partial priority to be accepted.

Neither the PCT nor the Paris Convention ruled out that a claim to priority could be held invalid if the "same invention" criterion was not met.

Once you file an application in one country which is party to the Paris Convention for the Protection of Industrial Property, you are entitled to claim the priority of that filing, and the filing date of that first application is considered the “priority date”.

The appellant filed a European patent application claiming multiple priorities from four UK patent applications, filed on 4 September 1989 and 8 May 1990, but failed to claim priority from a fifth UK patent application, dated 26 March 1990.

Headnote: The TRIPS Agreement does not entitle the applicant for a European patent application to claim priority from a first filing in a state which was not at the relevant dates a member of the Paris Convention but was a member of the WTO/TRIPS Agreement.

This also applies if a claim to priority is invalid due to the fact that the priority document, and the subsequent European application, do not concern the same invention because the European application claims subject-matter not disclosed in the priority document.

An applicant wishing to claim priority must file a declaration of priority indicating:

The board is satisfied that the applicant intended to claim priority from the fifth UK patent application as well and that the document filed with the EPO, ie the application, did not express the true intention of the applicant (cf. case J 6/91, point 3 (1) of the grounds for the decision).

However, in a case such as the present, where a particular technical feature has been included in the claims of the European application as filed, which technical feature is a more specific embodiment of a feature which is more generally referred to in the priority document, contrary to what is suggested in the Guidelines such claims are entitled to claim priority from the priority document provided that the inclusion of such technical feature does not change the essential character and nature of the invention as such, and the claimed invention therefore remains "the same invention" as that which is disclosed in the priority document.

In its Decision the Opposition Division took the view that because the British application does not in terms disclose a numerical requirement of "... at least 5% fat...", the figure of 5% constituted added subject-matter and the claim to priority could not be upheld.

The claimed invention was therefore not in substance the same as the invention disclosed in the priority document, and the claim to priority could not be upheld.