2.4.3 Excluded national prior rights

In T 550/88 (OJ 1992, 117) the board made it clear that, on the proper interpretation of Art. 54(3) EPC 1973, prior national rights were not comprised in the state of the art. The effect of a prior national right upon a European patent was a matter purely for national law, whereas the effect of a prior European application upon a European patent was specifically provided for in Art. 54(3) EPC 1973 (which might also be a ground for revocation under national laws by virtue of Art. 138(1)(a) EPC 1973). In other words, the combined effect of Art. 138(1) and 139 EPC 1973 was to provide an additional possible ground for revocation under national laws based upon the existence of a prior national right, which was not available under Art. 54 EPC 1973.

In T 1698/09 the board observed that, under Art. 54(3) EPC, the state of the art comprised the content of European patent applications filed before the priority date of the patent in suit and published after that date. It held that a German utility model was not a German or a European patent application. It made no difference that Germany had been designated in the patent in suit.