4.1 Use of "P" and "E" documents in the search opinion 

Where the search division refers to a document potentially amounting to prior art under Art. 54(3) in the search opinion, there are two possibilities, depending on whether or not it can conclusively establish that the prior-art document has an earlier relevant date than the application: if so, it will raise a novelty objection under Art. 54(3); if not, it will assume that any priority which cannot be checked is valid. This leads to two different scenarios:

(i)The prior-art document belongs to the state of the art under Art. 54(3). The search division therefore raises a novelty objection in the search opinion and specifies which priorities have been assumed to be valid.

(ii)The prior-art document does not belong to the state of the art under Art. 54(3). If the search opinion raises other kinds of objection in the search opinion, it will refer to the document potentially falling under Art. 54(3) (and its relevant passages) and will explain which priorities have been assumed valid.

Where "P" documents are also cited in the search report and they are not potential prior art under Art. 54(3) (because they are not international or European patent applications), they may be prior art under Art. 54(2) and so be relevant for the assessment of novelty and inventive step in so far as the application's priority is invalid. If its priority can be checked, the search division will do so. If it finds that the priority is not valid, it will raise objections in the search opinion on the basis of the "P" documents. If the priority cannot be checked, it will assume it is valid and will not raise any objection in the search opinion.

The issue of whether the priority claim or claims are valid then needs to be reviewed in examination (see F‑VI, 2).