The research project focuses on the analysis of the right of priority based on the national legislations of a number of countries chosen, their judicial practise and the rule of the Boards of Appeal of the European Patent Office along with the relevant international agreements.
Last Update: 26.04.22
The right of priority is governed by many international legal acts such as the Paris Convention, the European Patent Convention, the Patent Cooperation Treaty, TRIPS and the majority of national jurisdictions. However, none of the international acts include provisions stipulating rules about the following issues of such a right: the legal nature; its transferability; the retroactive effect of such transfer.
Additionally, there are issues concerning the conflict-of-laws rules applicable to the transfer of the right of priority in relation to the EPC and the judicial practise of the Boards of Appeal of the European Patent Office (hereinafter “BoA”), when the priority right is claimed to/ from the European patent application. Although the priority right is regulated in the selected jurisdictions (Germany, Poland, the United States, the United Kingdom), the legal concepts concerning such a right are different resulting in different requirements for a transfer of priority among the countries chosen.
Moreover, the lack of provisions in both the international legal acts and the chosen national jurisdictions leads to many interpretation issues in the judicial practise of the BoA and that of national courts. The analysis of the issues stated above is being conducted by using doctrinal and comparative research methodology. The research will reveal the common grounds and differences of the legal nature of the priority right in national laws.
The project could have a valuable impact on the understanding of the right of priority in the EPC with regards to the chosen national jurisdictions. The study will provide legislators with an analysis of the different approaches to the right of priority, their advantages and disadvantages. This could serve as a basis for the common interpretation of provisions laid down in the EPC and in domestic laws.
The centre of the analysis is the European Patent Convention, as it is the only international legal act containing a wide, self-contained code of rules on claiming priority for a European patent application. The priority right under the BoA judicial practise is considered an independent, separable right from the right to apply for a patent, until it is invoked for one or more later applications to which it becomes an accessory. Regarding the assignment of priority right under the EPC occurring between different jurisdictions, the BoA has created the conflict-of-law rules similar to those from the private international law. The analysis clarifies the circumstances under which such rules were applied and pointed up the inconsistence of revealed approaches.
The research project aims to provide complex answers to the previously mentioned issues containing the interpretation of the EPC in conjunction with national laws and domestic approaches created according to them. This method will bring the most objective results being in coherence with the Vienna Convention on the interpretation of law of treaties.
Prof. Dr. Justyna Ożegalska-Trybalska
III.4 Interaktion von Rechtsordnungen
