In this case, the Board goes very deep into the issue of the entitlement to claim priority by a successor in title. In particular: when does the actual transfer need to take place? Could the EPO recognize a retroactive transfer if a national law would allow that?
The answer: strict - the actual transfer must have been completed before the priority is claimed.
Catchword:
1. Continuation of the appeal proceedings after first oral proceedings before the board with the scheduling of second oral proceedings is not, as such, a reason for admitting new submissions filed after the first oral proceedings (see Reasons, point 2.3).
2. If the debate on a particular topic had been closed without announcement of a decision on the matter, the board has discretion over whether or not it re-opens the debate and over the extent to which it does so (see Reasons, point 3.1).
3. For a claimed priority to be valid pursuant to Article 87(1) EPC 1973, the applicant of a subsequent application claiming priority from an earlier application (priority application) who is not the person who filed the priority application must, when the subsequent application is filed, be that person's successor in title in respect of the priority application or of the right to claim priority. A succession in title that occurs after the filing date of the subsequent application is not sufficient to comply with the requirements of Article 87(1) EPC 1973 (see Reasons, point 6.5).
4. Where the applicant of the priority application and the applicant of the subsequent application contractually agree that (only) economic ownership ("economische eigendom" under Dutch law) of the priority application and the right to claim its priority is to be transferred to the subsequent applicant, this is not sufficient to consider the latter a successor in title within the meaning of Article 87(1) EPC 1973 (see Reasons, point 6.6.2).