9.9. Equivalents

According to established board of appeal case law, equivalents which are not disclosed in a published document must not be considered in assessing novelty, as this properly belongs to the examination for inventive step (see T 167/84, OJ 1987, 369; T 446/88; T 517/90; see also Guidelines G‑VI, 2 – November 2018 version). In T 697/92 the board dealt with the concept of "equivalent means", according to which two means were equivalent if, despite having different embodiments, they fulfilled the same function with regard to the same result. Both means performed the same function if they shared the same basic idea, i.e. if they applied the same principle in the same way. The result was the totality of the technical effects produced by the means. In order to be considered as equivalents, the means had to achieve the same kind and quality of result. A means was thus not equivalent if, because of its different embodiment, it led to a result of the same kind but of a different quality or degree of effectiveness. The result did not necessarily even have to be better; it was sufficient for it to be different, since it was not the result itself which was patentable but the means by which it was achieved (see also T 818/93, T 929/02).

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