4.11. Accidental disclosure

An anticipation is accidental if it is so unrelated to and remote from the claimed invention that the person skilled in the art would never have taken it into consideration when making the invention. When an anticipation is taken as accidental, this means that it appears from the outset that the anticipation has nothing to do with the invention (G 1/03 and G 2/03, OJ 2004, 413 and 448; T 134/01, T 1911/08). This concept is relevant primarily in relation to disclaimers, which under certain circumstances are allowable to restore novelty of an invention over an accidental disclosure (see chapter II.E.1.7. "Disclaimers" and in particular chapter II.E.1.7.3(a) "Accidental anticipation").

In accordance with Art. 54(2) EPC, all state of the art, and so also that disclosed accidentally, must be taken into consideration when assessing novelty (T 1170/19).

In T 161/82 (OJ 1984, 551) the board found that the prior art document was concerned with the solution of a problem totally different from that stated in the application at issue and concluded that in cases where an anticipation was of a chance nature, in that what was disclosed in a prior document could accidentally fall within the wording of a claim to be examined for novelty without there being a common technical problem, a particularly careful comparison had to be made between what could fairly be considered to fall within the wording of the claim and what was effectively shown in the document (see also T 986/91).