Q: I have 2 issued U.S. utility patents and filed a 2nd CIP in Feb 2017.
Since the 2nd CIP is yet to be reviewed is it possible to file EU patents in the 90 days between being awarded the patent and the issuing of the 2nd CIP utility patent?
A: This is a fairly common question facing US clients wanting to file the subject matter of CIPs in Europe. Unfortunately, issued European patents off a CIP are rare.
In your case, you could file a EU application claiming priority to the 2nd CIP, since it has been filed less than 12 months. However, you could not claim priority to any of the earlier applications, because, firstly they are not within the 12-month window (hence not complying with Art 87(1), and only the immediately previous non-EU application can be claimed as a priority application, per Art 87(4). A situation such as yours is discussed in detail in Guidelines, F-VI-1.4, second paragraph.
What this means is that your two issued US patents will be considered prior art against your European application.
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