Priority right and prior rights
In connection with the discussion of novelty and prior rights, it has already been mentioned that prior rights are, in principle, only those patents and applications that are valid in the same country. This statement is correct in principle, but needs to be clarified somewhat by the priority right, since the effects of a patent application can also be backdated as a prior right.
A files a subsequent application in Germany in December 2025 based on his Austrian patent application filed in January 2025. In June 2025, a German applicant D files a patent application in Germany for the same invention without claiming priority. Both applications are published.
Looking at the validity of A's application in this situation, it can be seen that D's application has the effect of prior art (earlier right) from its filing date in June 2025. However, due to the priority right, A's application has a better priority date in January 2025, so that D's application cannot be prior art for A's application.
Looking at the validity of D's application in this situation, it becomes apparent that the prior art for this application is to be taken from the filing date in June 2025. Even though A's application was not filed with the German Patent Office until December 2025, the priority right also dates the application back to January 2025 with its prior art effects, so that A's application constitutes an earlier right for D's application.
It gets even more complex: Now let's consider the situation where both applications claim priority and are also published later. Each application can be backdated as far as the priority right allows. Since the priority right determines both the relevant date for the application itself and the effects of the application as an earlier right, in the case of identical inventions, priority is generally given to the person whose first application was filed earlier:
A submits a subsequent application in Germany in December 2025 based on his Austrian patent application filed in January 2025. In February 2025, another applicant, D, submits a patent application in Spain for the same invention. In November 2025, he submits a subsequent German application based on his Spanish patent application.
Looking at the validity of A's application in this situation, it can be seen that D's application has the effect of prior art (earlier right) from its Spanish priority date in February 2025. However, due to the priority right, A's application has a better priority date in January 2025, so that D's application cannot be prior art for A's application.
Looking at the validity of D's application in this situation, it becomes apparent that the prior art for this application is to be taken from the priority date of February 2025. Even though A's application was not filed with the German Patent Office until December 2025, the priority right dates the application and its prior art effects back to January 2025 (i.e., before February 2025), so that A's application constitutes an earlier right for D's application.
