The enlarged board of appeal (EBA) of the European patent office effectively ended the possibility of poisonous priority. The EBA held that entitlement to partial priority may not be refused for a claim encompassing alternative subject-matter by virtue of generic expressions (generic “OR” claims) if the priority document discloses part of that subject matter in a way that could make it novelty damaging. The claim is de facto conceptually divided into two parts, the first corresponding to the invention disclosed directly and unambiguously in the priority document, for which the claim enjoys partial priority, and the remainder not enjoying this priority.
A full summary of this case has been published on Kluwer IP Law
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