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  • Although normally the inventors and the businesses agreed that the precedence declare of the next PCT-application must be valid, disputes have arisen in the past in opposition proceedings earlier than the EPO when third parties questioned a formally legitimate switch of the priority right from the inventors as candidates of the precedence utility to the company as applicant of the next PCT software.
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On the other hand, this decision isn’t good news for events who wish to challenge the priority declare / the best to claim priority, as they now carry the burden of proof and must ‘demonstrate that specific details support severe doubts concerning the subsequent applicant’s entitlement to priority’, see paragraph a hundred and ten of the decision. Dr. Natalie Kirchhofer, patent lawyer at C&F provides, “it will be interesting to see how events will interpret and make use of the “rebuttable presumption” of entitlement to precedence, however the determination could be expected to improve the position of patent proprietors and enhances chances for the maintenance of property rights of innovative firms”. In its answer to the first referral question, the Enlarged Board of Attraction confirmed the EPO’s competence to assess entitlement to precedence and acknowledged a rebuttable presumption that applicants are entitled to assert precedence. Although often the inventors and the companies agreed that the priority declare of the next PCT-application must be legitimate, disputes have arisen up to now in opposition proceedings before the EPO when third events questioned a formally valid switch of the precedence right from the inventors as applicants of the priority utility to the company as applicant of the next PCT application.

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