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Non-Prejudicial Disclosure Prior To European Patent Application

Non-Prejudicial Disclosure Prior To European Patent Application

02/05/01

Article 55 EPC provides for circumstances in which the disclosure of an invention prior to the filing of a European application is not considered prejudicial to the novelty or inventive step of the invention claimed. Such circumstances comprise the disclosure of the invention at an officially recognized international exhibition, or disclosure through circumstances arising from a breach of confidence. However, Article 55 states that the benefit of this provision only arises if the disclosure occurred no earlier than six-months preceding "the filing of the European patent application".

The Enlarged Board of Appeal, was asked recently to decide whether the term "the filing of the European patent application" referred to the actual date of filing the application documents or, if applicable, an earlier priority date claimed by the application.

In its Decision G3/98, the Enlarged Board of Appeal decided that calculation of the six-month period referred to in Article 55 EPC, the relevant date is the actual date of filing of the application documents and so any date of priority is not to be taken into account in calculating this period. The Enlarged Board of Appeal felt that it was not possible to identify any considerations that have arisen since the EPC was signed which might give grounds for assuming that a literal interpretation of the wording of Article 55 conflicts with the legislators' aims.

February 2001