When exactly your own disclosures will be used as prior art against you?

Question

If I understand correctly USPTO is a "relative novelty" office. There is a grace period of 1 year. Whereas EPO is an "absolute novelty" office. Anything disclosed before filing will be used against you.

Let me explain with some scenarios.

USPTO:

• I file a provisional in Jan 1, 2020.
• I publicly disclose my ideas in Mar 1, 2020 by publishing a paper.
• I file a non-provisional by claiming priority to the provisional on Jun 1, 2020.
• USPTO publishes my application in Sep 1, 2020 due to early publication request.
• I file a continuation-in-part application which discloses some new content on Feb 1, 2021.
• I file another continuation-in-part application which discloses some new content on Apr 1, 2021.

If I understood correctly, the Mar 1, 2020 paper can be used as prior-art against my second CIP application. But not the first CIP due to the 1 year grace period.

How exactly continuation-in-part works in EPO since it's an "absolute novelty" office? Does that mean, it will be really hard to make minor tweaks once your idea is publicly disclosed?

Is there any way one can go for continuation-in-part in EPO with the help of PCT?

Answer 1

There are no continuations in part at the EPO. At the EPO you only have patent applications, and divisionals of patent applications. Divisionals have the same disclosure of the parent application or a more reduced disclosure, therefore they can be used to claim different embodiments that were initially disclosed, you cannot add any new matter.

Your disclosures will be used against your claimed invention, therefore the minor tweaks must be inventive over the prior art (including your disclosures) in order to get a European patent granted in the situation you describe. In fact, according to the particulars of your example, if the provisional, the paper and the US patent application all disclose A+B+C, and you file a European patent application the day after the US patent application has become public, the European patent application disclosing A+B+C and A+B+C+D, then A+B+C would be entitled to the priority date but not A+B+C+D, so if A+B+C+D is obvious in light of A+B+C (known from the prior art due to the US patent application), you would not be able to protect it.