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Guidelines for Examination

 
 

5.1 State of the art pursuant to Art. 54(3)

The state of the art also comprises the content of other European applications filed or validly claiming a priority date earlier than – but published under Art. 93 on or after – the date of filing or valid date of priority of the application being examined. Such earlier applications are part of the state of the art only when considering novelty and not when considering inventive step. The "date of filing" referred to in Art. 54(2) and (3) is thus to be interpreted as meaning the date of priority in appropriate cases (see F‑VI, 1.2). By the "content" of a European application is meant the whole disclosure, i.e. the description, drawings and claims, including:

(i)
any matter explicitly disclaimed (with the exception of disclaimers for unworkable embodiments); 
(ii)
any matter for which an allowable reference (see F‑III, 8, penultimate paragraph) to other documents is made; and
(iii)
prior art insofar as explicitly described. 

However, the "content" does not include any priority document (the purpose of such document being merely to determine to what extent the priority date is valid for the disclosure of the European application (see F‑VI, 1.2)) nor, in view of Art. 85, the abstract (see F‑II, 2).

It is important to note that it is the content of the earlier application as filed which is to be considered when applying Art. 54(3). Where an application is filed in a non-official language as permitted by Art. 14(2) (see A‑VII, 1.1), it may happen that matter is erroneously omitted from the translation in the language of the proceedings and not published under Art. 93 in that language. Even in this case, it is the content of the original text which is relevant for the purposes of Art. 54(3).