In January 2018, Mr X, who has his residence in Germany, filed the European patent application EP1 for subject-matter A without claiming priority. EP1 was withdrawn in May 2018. In November 2018 subject-matter A was disclosed in a scientific article.
Ms Y, who has her residence in Italy, recently learned about the filing of EP1. Ms Y can prove that Mr X has stolen her invention and that in fact she is entitled to the grant of a patent for subject-matter A. Ms Y wants to have patent protection for subject-matter A through the EPO.
Is it still possible? if so which steps must she take? and in which contracting states can she obtain protection?
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Yes ! Ms Y may obtain a protection for A.
First Ms Y has to obtain a decision recognizing her right to entitlement.
Therefore, the new application shall be deemed to have been filed on the date of filing of EP1 in January 2013.
This precedes the publication of the scientific article in July 2013. Hence, this publication will not be prior art under Article 54(2) EPC for subject-matter A.
According to Article 9 of the Protocol on Recognition, final decisions given in any Contracting State on the right to the grant of a European patent, shall be recognised in the other Contracting States. Therefore, the final decision of the German court shall be recognised in the other Contracting States.
This proposed reply is not a legal opinion and does not engage the responsibility of Cabinet Novitech and should not replace the consultation of a Patent Attorney.
For any questions concerning the EP or FR patent law you can contact the Cabinet Novitech:
or call us at : 00 33 1 48 710 007
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