T 1110/03 of 04.10.2004

I. When evaluating evidence it is necessary to distinguish between a document which is alleged to be part of the state of the art within the meaning of Article 54(2) EPC - in the sense that the document itself is alleged to represent an instance of what has been made available to the public before the priority date of the opposed patent - and a document which is not itself part of the state of the art, but which is submitted as evidence of the state of the art or in substantiation of any other allegation of fact relevant to issues of novelty and inventive step.

II. In the first situation, a document is direct evidence of the state of the art; its status as state of the art cannot normally be challenged except on authenticity. In the second situation, a document is also evidence albeit indirect; it provides a basis for an inference about, eg the state of the art, common general knowledge in the art, issues of interpretation or technical prejudice etc - an inference which is subject to challenge as to its plausibility.

III. Only a document of the first kind can be disregarded on the sole ground that it is postpublished; documents of the second kind do not stand or fall by their publication date even on issues of novelty and inventive step.