The Enlarged Board of Appeal of the European Patent Office has issued decision G 4/19 (double patenting) in which it holds that a European patent application can be refused by reason of the prohibition on double patenting.

After some initial disappointment that not even the legitimate interest in a second EP application claiming the same priority (Article 88 EPC) of an earlier European application (headnote 2.1.c)) and thus providing a longer-lasting protection could overcome the prohibition there seem to be a few positive takeaways:

  1. The heavy legal analysis and adherence to original intentions of the legislator could mean that the Enlarged Board of Appeal is able to keep the EPO on its legal foundations.
  2. The scope of the prohibition is quite narrow (same subject-matter AND same applicant). As will be recalled, in the case leading to G4/19, the claims of the second EP application were identical to the claims of the earlier application (according to headnote 2.1.c)).
  3. If a potential desire for a longer-lasting protection cannot be ruled out, the priority-establishing (patent) application could be simply filed elsewhere, for example, with the national patent office of a contracting state.