20.05.2021: Asserting a priority claim / Filing of subsequent applications to patent
The claiming of a priority right is not effective if the subject matter of the later application can only be derived from the content of the earlier application on the basis of independent considerations of the person skilled in the art. In this respect it is irrelevant whether it was obvious to make such considerations.
Practical tip:
It is quite common for applicants to make "additions" to their international applications which were not disclosed in the first application.
Such additions are often new examples, more concrete feature characteristics or feature combinations or also facts which can be helpful for delimiting the prior art which has become known in the meantime.
The problem here is that (at least for these additions) there is a risk that the international subsequent applications will not be assigned the same seniority as the first application (priority), which can ultimately dangerously expand the prior art to be considered for patentability.
With regard to the question of whether the additions are already disclosed in the first application, it is true that the claims formulated there are not decisive, but rather the entirety of the application documents must be assessed. Nevertheless, the Federal Court of Justice makes it clear here that additions which are only suggested by the first application and cannot be "directly and unambiguously" taken as a possible embodiment of the invention there lead to a loss of seniority.