London Patent

Here, Hon. Justice Kitchin establishes that the test for acknowledging a priority claim is that the person claiming priority must be the same person who filed the priority application or his successor in title in the date of filing the application claiming the priority. Here is the relevant quote:

“In my judgment the effect of Article 4 of the Paris Convention and section 5 of the Act is clear. A person who files a patent application for an invention is afforded the privilege of claiming priority only if he himself filed the earlier application from which priority is claimed or if he is the successor in title to the person who filed that earlier application. If he is neither the person who filed the earlier application nor his successor in title then he is denied the privilege. Moreover, his position is not improved if he subsequently acquires title to the invention. It remains the case that he was not entitled to the privilege when he filed the later application and made his claim. Any other interpretation would introduce uncertainty and the risk of unfairness to third parties. In reaching this conclusion I derive a measure of comfort from the fact that the Board of Appeal of the EPO has adopted the same approach to the interpretation of Article 87 EPC in two cases: J 0019/87 and T 0062/05. “

The case was about an artificial heart valve rendered invalid as it was obvious in light of a few prior art references.

The priority application was a US provisional application.

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