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Guidelines for Examination

 
 

5.6 Matters of doubt in the state of the art

Since decisions with respect to novelty are not the responsibility of the Search Divisions but of the Examining Divisions (see B‑III, 1.1), the Search Divisions should not discard highly relevant documents because of doubt as regards for example the exact date of publication or public availability (e.g. standards or standard preparatory documents, see G‑IV, 7.6), or the exact contents of an oral disclosure, exhibition, etc. to which such documents may refer. The Search Division should try to remove any doubt that may exist but should nevertheless always cite the documents concerned in the search report and also continue the search as though that document had not been found. Additional documents providing evidence in the matters in doubt may be cited (see B‑X, 9.2.8). The search opinion should contain details explaining the issue.

Any indication in a document of the date of its publication should be accepted as correct unless sound reasons for contesting this are given, e.g. by the Search Division, showing earlier publication, or in examination proceedings by the applicant, showing later publication. If the indicated date of publication is insufficiently precise (e.g. because only a month or year is given) to establish whether publication was before the reference date for the search, the Search Division should endeavour to establish the exact date with sufficient precision for the purpose. A date of receipt at the EPO stamped on the document, or a reference in another document, which must then be cited (see B‑X, 9.2.8), may be of assistance in this respect. In the preparation of the search opinion and during substantive examination, the public availability of a document may be investigated (see C‑IV, 1). Where, despite the endeavours of the Search Division, the date is not sufficiently precise to know whether or not the document was published before or after the priority or filing date, the examiner should cite the document as though it had been published on the earliest possible date. For instance, if only the month and year of publication are known, the examiner should cite it as being published on the first day of that month.