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In T 6/80 (OJ 1981, 434) the board found that where a further functional attribute of an element of a device disclosed in a document was immediately apparent to a person skilled in the art reading the document, such attribute formed part of the state of the art with regard to that device.
In T 666/89 (OJ 1993, 495) the term "available" clearly went beyond literal or diagrammatical description, and implied the communication, express or implicit, of technical information by other means as well. One example of the available information content of a document extending beyond this literal descriptive or diagrammatical content was the case where the carrying out of a process, specifically or literally described in a prior art document, inevitably resulted in a product not so described. In such a case, the board stated, the prior art document would deprive a claim covering such a product of novelty. It was thus content, express and implied, rather than mere form, that was decisive for the issue of novelty in general, and "selection" novelty in particular (see T 793/93).
In T 518/91 the board held that the logical interpretation by a skilled person of technical facts explicitly stated in a prior document - in particular the definition beyond the explicit disclosure of the document of features of the prior art described in general terms - was not part of the technical teaching implicitly derivable from the document, which the skilled person would automatically infer, if it contradicted other explicit technical information in the otherwise consistent overall disclosure of the document.
In T 624/91 it was held that exact disclosures for alloy compositions in the state of the art had to be interpreted as average or nominal values within a small range in view of known fluctuations in reproducibility and in analytical results, unless there was evidence available to the contrary. The board pointed out that, whenever a metallurgist aimed at producing an alloy in accordance with a given nominal composition, the composition of the final product would deviate somewhat from this target or even be undefined within certain narrow limits. The metallurgical production process was not ideally reproducible and the actual composition of different batches aiming at the same nominal composition would be spread over a certain area around this target. Consequently, the nominal composition of a cited alloy not only disclosed the composition as a specific point which nobody would be able to realise in practice, but also a certain range around this average or nominal composition into which the majority of the analyses of those alloys fell which had been prepared aiming at the nominal composition and using the care usual in this art when producing and analysing an alloy.
In T 71/93 it was held that a feature not explicitly mentioned in a prior art document, even though generally known to help overcome a drawback usual in the same technical field, could not be considered implicitly disclosed if it were not directly derivable from the prior art document that the drawback was considered unacceptable and/or if other solutions were proposed for overcoming the drawback.
In T 572/88 and T 763/89 the boards warned against using the concept of "implicit prior description" in such a way that considerations relevant to the evaluation of inventive step were transferred to the assessment of novelty. A fair assessment of an invention's patentability called for a clear distinction between novelty and inventive step. In decision T 763/89, for example, the opponent could not claim "implicit prior description" for a material with exactly three layers, as claimed in the disputed patent, on the grounds that a skilled person, aware of the considerable outlay required for further sub-layers and the limited improvement in the quality of the image they bring, would have understood the wording of the claim, which set no upper limit for the number of layers, to be virtually synonymous with "two or three layers". To do so would be to adduce a typical criterion for the evaluation of inventive step.
In T 71/93 the board held that an "implicit prior description" of a feature could not be based on the grounds that a person skilled in the art would have been aware of some disadvantages and of the lack of other forms of improvement related to a feature, since this was a criterion for the evaluation of inventive step.