The Enlarged Board of Appeal of the EPO has issued its long awaited order in case G1/15 regarding poisonous priorities (see here). The full decision has not been published yet. From the order, one is led to understand that a generic claim covering alternative subject-matters of which only part of the subject-matter has basis in the priority application always has a right to partial priority. This means that a publication of the priority application cannot destroy the novelty of such a claim. Logically, the same would have to apply to toxic divisionals: the filing of a divisional application could not lead to a novelty destroying publication for the parent application or another divisional application.

It appears that the Board of Appeal has buried the topic of poisonous priorities and toxic divisionals once and for all. We will have to wait for the full decision from the Enlarged Board of Appeal to fully understand the reasoning and the implications of this decision.

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