T 0952/92 (Prior use) vom 17.08.1994

I. Whatever the means of disclosure (written description, oral description, use by sale, etc), availability in the sense of Article 54(2) EPC involves two separate stages: availability of the means of disclosure, and availability of information which is accessible and derivable from such means.

II. Information as to the composition or internal structure of a prior sold product is made available to the public and becomes part of the state of the art in the sense of Article 54(2) EPC if direct and unambiguous access to such information is possible by means of known analytical techniques which were available for use by a skilled person before the relevant filing date.

III. The likelihood or otherwise of a skilled person analysing such a prior sold product, and the degree of burden (i.e. the amount of work and time involved in carrying out such an analysis), is in principle irrelevant to the determination of what constitutes the state of the art.

IV. The novelty of a claimed invention is destroyed by the prior disclosure (by any means) of an embodiment which falls within the claim. The possibility of a complete analysis of a prior sold product is not necessary. The novelty of a claim is destroyed if an analysis of a prior sold product is such as to inform the skilled person of an embodiment of the product which falls within the claim.

V. The wording of a translation published in the Official Journal of the EPO of the official text of an opinion issued by the Enlarged Board of Appeal pursuant to Article 22(1)(b) EPC is legally irrelevant to the interpretation of such official text.