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Case Law of the Boards of Appeal

 
 
3.4.5 Confidential prior art

In T 211/06 the original application was a PCT application. The examining division used as a starting point for the assessment of inventive step background art indicated in the application, which according to the applicant comprised confidential information. The board stated that such background art meant publicly available art at the priority date, and not some internal prior art known only within the company employing the inventors. Disclosure in the application as filed which turns out on the available evidence not to be prior art under Art. 54(2) EPC 1973 cannot be used as a starting point for assessing inventive step, nor can subjective "laboratory practice" put forward by the examining division without any objective evidence that this was knowledge available to the public be used as a starting point for assessing inventive step.