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Guidelines for Examination

 
 
Table of Contents - Guidelines for Examination
Part B Guidelines for Search
Chapter VI – The state of the art at the search stage
6. Contents of prior-art disclosures
6.3 Conflict between abstract and source document
6.3
Conflict between abstract and source document 

Where there is a problem with an abstract, either because it appears to conflict with the source document to which it relates or because it conflicts with other abstracts of the same source document, the examiner should proceed as follows:

(i)
where the source document is in an accessible language (in particular a language of an EPC contracting state) and either is directly available to the examiner or may be ordered, the examiner should cite the source document. 
(ii)
where the document is in an inaccessible language (for example Russian, Japanese or Chinese) and/or is difficult to obtain, the examiner should cite the abstract. Where more than one abstract is available, the examiner should cite the abstract most relevant to the claimed invention, regardless of any conflicts between that abstract and other abstracts or the source document.  

The source document will be present in the search report as the "&" document of the cited abstract. Where it is available but is in an inaccessible language such as Japanese, both the source document and the abstract will be printed and sent to the applicant and included in the file (see B-X, 9.1.2). The examiner should explain in the search opinion why he considers that there is a conflict.

Where an abstract conflicts with the source document to which it relates, to the extent that the abstract is incorrect it does not form part of the state of the art: the source document on which the abstract is based then forms the state of the art (T 77/87). However, for the purpose of the search report and opinion, an abstract is considered a true representation of the content of the original document, unless the disparity between the two is evident. Being provided with both the abstract and the source document, the applicant will be able to compare both disclosures and reach conclusions about the technical validity of the abstract. The opportunity to refute the above assumption remains available in examination (for example, by providing a translation of the original document).