Double patenting and European patents

Under the Patents Act 1977 where two or more patent applications are made for the same invention, with the same priority date and filed by the same applicant then the patent may be refused. A recent EPO appeal hearing has considered the same in relation to European patents.

Boehringer Ingelheim Vetmedica GmbH, T 1423/07 is the case in question. Under the EPO Examination Guidelines where two or more European applications from same applicant, with the same filing or priority date and for the same invention then applicant should be told that he must amend one or more of the applications so that they do not claim the same invention or to choose which one of the applications to proceed with. The appeal board held however that the EPC does not provide a basis for the refusal of a European application for ‘double patenting’.

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