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Valid Priority Claims

Valid Priority Claims


A recent UK High Court decision in Edwards Lifesciences v. Cook Biotech concerns the Paris Convention requirements for claiming priority from an earlier filed application.


In considering Art. 4 of the Paris Convention and having regard to UK and European precedents, the presiding judge Mr Justice Kitchin, decided that a person (natural or legal) who files a patent application (“the second application”) for an invention is afforded the privilege of claiming priority only if they themselves filed the earlier application (“the first application”) from which priority is claimed, or if, at the time of filing the second application, they are the successor in title to the person who filed the first application. If  not, then they are denied that privilege, i.e. and so the claim to priority is invalid. 


The judge dismissed an argument presented by the defendant that because Cook filed the second application claiming priority from the first application, that Cook must also be entitled to claim priority. Kitchin stated that the person is not entitled to the privilege simply because they filed a second application and made a claim to priority.


An appeal is pending which is scheduled to be heard early June 2010.