08/2018

T2563/11 –
EPO Decision by the Technical Board of Appeal 3.3.1

As you will know the issue of double patenting is not codified expressis verbis in the EPC. Some case law has dealt with this though (G 1/05 and G 1/06). I an recent interesting decision by the Technical Board of Appeal (3.3.1) the question was dealt with, whether two patents with identical claim sets but slightly different descriptions should be allowable (scope of protection (Art. 69) – versus – matter for which protection is sought (Art. 84)).

The Board stated that the double patenting prohibition was a matter relating to the subject matter for which protection is sought. Therefore, two patents with identical claim sets but different descriptions should not be allowed. While this short introduction slightly oversimplifies the issue at hand we recommend reading the decision.