Patents
Double Patenting at the EPO
July 23, 2021
The Enlarged Board of Appeal has decided that double patenting is not allowed, and as such a European patent application can be refused if it claims the same subject-matter as a European patent already granted to the same applicant.
The Enlarged Board of Appeal recently issued a decision on G4/19, which considers whether the European Patent Office is able to refuse a European patent application on the basis of double patenting.
Double patenting is the position which would result if an applicant obtains more than one granted European patent for the same subject matter. Generally double patenting can be avoided by adding a feature to the basic claimed definition of the invention to render the scope different from that previously granted.
The Enlarged Board of Appeal has decided that a European patent application can be refused under Article 97(2) EPC if it claims the same subject-matter as a European patent which was granted to the same applicant and does not form part of the state of the art pursuant to Article 54(2) and (3) EPC. Accordingly, double patenting is not allowed.