The UK Patents Act provides that where two or more applications for a patent for the same invention having the same priority date are filed by the same applicant, the patent may be refused. An appeals board of the EPO has, in Boehringer Ingelheim Vetmedica GmbH, T 1423/07, held that this does not apply to applications for European patents.
The European Patent Convention does not deal with double patenting and the EPO Examination Guidelines have stated that where there are two or more European applications from the same applicant which have the same filing or priority date and relate to the same invention, the applicant should be told that he must either amend one or more of the applications in such a manner that they no longer claim the same invention, or choose which one of those applications he wishes to proceed to grant.
However, the appeals board held that as the European Patent Convention does not provide a basis for refusing a European application on the ground of double patenting, such an application cannot be refused on this basis. Note however that the EPO, which has been at war with divisional applications (applications which are split off an existing application, say to cover a different invention, or to obtain grant of clearly patentable subject matter while the office argues about the remainder), may not be so generous with double patenting divisionals.
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