Thoughts and Feedback since Original Publication of the “Poisonous Divisionals” Concept

Editorial Preface

Although it is the normal editorial policy that this Journal does not republish articles previously printed in journals which readers may well have already seen, I have consulted the Editorial Panel who have unanimously agreed that the points raised in this paper are of importance for strategy and claim drafting for European applications as well as overall IP risk management and should be given careful consideration. The current article further develops the previously proposed legal concept with references to additional case law, views and commentary. Nevertheless, it is appreciated that the views expressed may be seen by some as unproven, and that the views on strategy are not intended by the authors to be complete. It is therefore hoped that readers will feel it worthwhile to express their thoughts to me in letters or articles which can then be considered for future publication herein.

Avidity IP has identified and researched a highly significant anticipation threat to patent portfolios posed by the widely used strategy of filing EPC divisionals. Our proposition, based on a fusion of two legal principles not previously put together, points to a common, significant omission in strategic planning of divisional filings which may be responsible for mutual anticipation within an EPC family comprising a parent and all its divisionals.

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