Novelty under the European Patent Convention

Under the European Patent Convention (EPC), European patents shall be granted for inventions which inter alia are new. The central legal provision explaining what this means, i.e. the central legal provision relating to the novelty under the EPC, is Article 54 EPC. Namely, "an invention can be patented only if it is new. An invention is considered to be new if it does not form part of the state of the art. The purpose of Article 54(1) EPC is to prevent the state of the art being patented again."

Since an invention is considered to be new if it does not form part of the state of the art, the legal concept of "state of the art" is critical for assessing whether an invention is new.

The state of the art is essentially defined in Article 54(2) EPC. Namely:

The state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application.

The state of the art under the EPC is therefore said to be absolute. Even the disclosure to a single person who is under no obligation to maintain secrecy is sufficient for a disclosure to be considered part of the state of the art. The absolute novelty also means that even the theoretical possibility of having unrestricted access to a certain information is regarded as rendering this information available to the public. In other words, as summarized in decision T 1081/01:

The case law (...) accepts that information is "available to the public" if only a single member of the public is in a position to gain access to it and understand it, and if there is no obligation to maintain secrecy.

Furthermore, Article 54(3) EPC extends the content of the state of the art by also including "the content of European patent applications as filed, the dates of filing of which are prior to the date referred to in paragraph 2 and which were published on or after that date". The purpose of this notional extension of the state of the art under the European Patent Convention is to address conflicting prior rights which might otherwise, without Article 54(3) EPC, lead to more than one patent granted for the same invention to different inventors. The extension of the definition of the state of the art under Article 54(3) EPC is limited to the assessment of novelty and does not apply to the assessment of inventive step. In other words, "documents within the meaning of Article 54(3) EPC are not to be considered in deciding on inventive step".

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Wikipedia