EPO Board of Appeal seeks clarity on poisonous divisional applications/priorities

In the case T0557/13, the minutes of the oral proceedings of December 17, 2014 reveal that the Board of Appeal will refer questions to the Enlarged Board of Appeal. The written reasons and the questions are not yet available. However, that they relate to the problem of so-called poisonous priorities or poisonous divisional applications. In very broad terms, the problem can be described as follows: A claim under attack is not – at least not in its entirety – entitled to the claimed priority because it contains generalizations which are not clearly and unambiguously derivable from the priority application. According to the decision T0571/10, another application, for example a divisional application, which is in contrast to the parallel claim, entitled to the priority can form state of the art in accordance with Article 54 (3) EPC. The result can be that a claim lacks novelty due to a parallel application of the same family. A further problem belongs to the picture namely under which conditions one claim can enjoy several priorities. In any case, clarification by the Enlarged Board of Appeal is to be expected.