Convention priority right The "Paris Convention priority right", also called "Convention priority right" or "Union priority right", is a "priority right" under a multilateral arrangement, defined by Article 4 of the
Paris Convention for the Protection of Industrial Property of 1883. The Convention priority right is probably the most widely known priority right. It is defined by its Article 4 A.(1): Article 4 B. of the Paris Convention describes the effects of the priority right: Article 2 paragraph 1 of the
WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) in conjunction with the Paris Convention provides a "derived" Convention priority right. That is, while WTO members need not ratify the Paris Convention, they should however comply with Articles 1 through 12, and Article 19, of the Paris Convention.
Priority rights under other multilateral arrangements Some priority rights are defined by a multilateral convention such as the
European Patent Convention (EPC) or the
Patent Cooperation Treaty (PCT). The Paris Convention does not cover priorities claimed in a European patent application or in an international application (or PCT application), as the EPC and the PCT have their own legal provisions regarding priority.
European Patent Convention defines the priority right system under the EPC or more precisely recognise priority rights for first filings in or for States party to the Paris Convention or any Member of the
World Trade Organization (WTO): describes the effect of the priority right: As explained by the
Enlarged Board of Appeal of the European Patent Office (EPO) in its decision
G 3/93 of August 16, 1994 (Reasons 4): Regarding the critical question "What is 'the same invention'?" in , opinion
G 2/98 prescribes a photographic approach to the assessment of priority. According to Enlarged Board of Appeal opinion G 2/98, the requirement for claiming priority of "the same invention" means that priority of a previous application in respect of a claim in a European patent application is to be acknowledged only if the skilled person can derive the subject-matter of the claim directly and unambiguously, using
common general knowledge, from the previous application as a whole.
Patent Cooperation Treaty The Patent Cooperation Treaty, in its Article 8(1), provides the possibility of claiming a right of priority for the filing of an international application (PCT application): goes on to mention that: However, Rule 4.10(a) as amended with effect from January 1, 2000 does not apply to all designated Offices. For instance, for the
European Patent Office as designated Office, the old Rule 4.10(a) still applied until December 12, 2007, that is, rights of priority of first applications made in a WTO member not party to the Paris Convention were not recognised. Now and more specifically for European patent applications filed on or after December 13, 2007 (the entry into force of the new version of the
European Patent Convention, the so-called
EPC 2000), the rights of priority of first applications made in a WTO member are recognized under the European Patent Convention.
Internal priority rights Some priority rights, called "internal priority rights", are defined by some national laws. Such internal priority right allows an applicant who filed a first application in a given country to claim the priority of the first application when filing a subsequent application in the same country. The Paris Convention does not cover internal priority rights. See, e.g.,
provisional application in the US.
Priority rights under bilateral agreements Some priority rights also exist on the basis of bilateral agreements. A bilateral agreement between a first and a second country may allow an applicant who filed an application in the first country to claim the priority of the first application when filing a second application in the second country. These kinds of bilateral agreements usually involve at least one country not party to the Paris Convention. == Special considerations ==