6.2 Matters to be determined as regards use 

When the ISA or the IPEA has gained knowledge of an object or process that has been used in such a way that it is comprised in the prior art (e.g. by a third party, see GL/PCT‑EPO E‑II, ISPE Guidelines 16.57 and PCT/AI section 801), the following details have to be determined:

(i)whether there is a written disclosure that was made available to the public earlier than the relevant date as defined by Rule 64.1(b) which confirms the use of the object or the process;

(ii)the date on which an alleged use occurred, i.e. whether there was any instance of use before the relevant date (prior use); 

(iii)what has been used, in order to determine the degree of similarity between the object used and the subject-matter of the application; and 

(iv)all the circumstances relating to the use, in order to determine whether and to what extent it was made available to the public, as for example the place of use and the form of use. These factors are important in that, for example, the details of a demonstration of a manufacturing process in a factory or of the delivery and sale of a product may well provide information as regards the possibility of the subject-matter having become available to the public.