Prior rights
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The state of the art is also held to comprise the content of European patent applications filed before the date of filing or priority but not published until on or after that date. However, this applies only if a contracting state designated in respect of the later application was also designated in respect of the earlier application as published. Furthermore, European patent applications form part of the state of the art pursuant to Art. 54(3) EPC only in respect of contracting states for which the designation fees have been validly paid.
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Art. 54(3), (4);
Art. 89
R. 23a
Guid. B-VI, 4;
Guid. C-IV, 6
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A PCT application for which the EPO acts as designated Office forms part of the state of the art for the purposes of Art. 54(3) if the national fee has been paid to the EPO and the PCT application is available in one of the EPO's official languages (English, French or German). That means that a translation is required if the PCT application was published in Chinese, Japanese, Russian or Spanish (see 8).
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Art. 158(1), (2)
Guid. C-IV, 6.2
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Everything in the earlier application as filed is prejudicial to novelty.
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The consequences that any earlier national patent applications or patents have for the patentability of the invention in the designated contracting states are assessed by the competent national courts after the European patent has been granted (but see point 103).
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Art. 139(2)
Guid. C-III, 8.4
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As a rule, a conflict between two European patent applications has only limited consequences, as the disclosed content of the earlier application is relevant only to the assessment of the later application's novelty, not its inventive step. Hence the later application's claims can mostly be drafted in such a way that the earlier application is not prejudicial to novelty.
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Art. 56
Guid. C-IV, 6.1
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B. Patentability
Basic principles
