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 date or valid priority date of the application being examined. The priority date counts as the date of filing for both the European application being examined and conflicting European applications under Art. 54(3), on condition that the priority is valid (Art. 89). Such earlier applications are part of the state of the art only when considering novelty and not when considering inventive step. The "content" of a European application means 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

(iii)prior art in so far as it is 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)) or, 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 can happen that some content is erroneously omitted from the translation into the language of the proceedings and not published under Art. 93 in that language. Even then, it is the content of the original text which is relevant for the purposes of Art. 54(3).