T 0890/17 - A summary of novelty

Key points

• The Board explains that in view of G2/10: “a prior art document is novelty destroying only if the skilled person would derive directly and unambiguously from the whole of that document, using common general knowledge, and seen objectively and relative to the date of said document, a subject-matter falling within the scope of what is claimed”.
• This statement is correct in the case at hand. It may be added that the prior art must also be enabling. Furthermore, for selections of sub-ranges, special rules apply.

EPO - T 0890/17 - link

Reasons for the Decision

Novelty

1. Objections that the subject-matter of claim 1 of the granted patent lacks novelty have been raised over the disclosure of each of documents D3, D1, D2 and D4. These four objections have in common that they have been made having regard to multiple separate passages of each of the documents concerned.

1.1 The Enlarged Board reminded in decisions G 1/03 (OJ EPO 2004, 413, point 2.2.2 of the Reasons) and G 2/10 (OJ EPO 2012, 376, point 4.6 of the Reasons) that the concept of disclosure must be the same for the purposes of Articles 54, 87 and 123 EPC, which concept defined in opinion G 3/89 and decision G 11/91 of the Enlarged Board of Appeal (OJ EPO 1993, 117 and 125, respectively) was reaffirmed in decision G 2/10 (OJ EPO 2012, 376, point 4.3 of the Reasons).

1.2 In application of that concept, a prior art document is novelty destroying only if the skilled person would derive directly and unambiguously from the whole of that document, using common general knowledge, and seen objectively and relative to the date of said document, a subject-matter falling within the scope of what is claimed.

In the present case, it must be therefore determined whether for at least one of the prior art documents D3, D1, D2 and D4 the enumeration of the various passages thereof made by the appellant is sufficient to demonstrate the existence of an anticipatory disclosure within the above meaning for the subject-matter of granted claim 1.