3.3.2Prior rights 

3.3.003The 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. 

A PCT application which is filed before the date of filing or priority but not published until on or after that date and for which the EPO acts as designated Office forms part of the state of the art for the purposes of Article 54(3) if the filing fee has been paid to the EPO and the PCT application is published in one of the EPO's official languages (English, French or German). If the PCT application was published in Arabic, Chinese, Japanese, Korean, Portuguese, Russian or Spanish, a translation into one of the official languages of the EPO must have been filed with the EPO, which will publish it (see point 2.3.002).

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 4.2.040).

3.3.004As 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.