7.2 Matters to be determined by the division as regards prior use 

When dealing with an allegation that an object or process has been used in such a way that it is comprised in the state of the art (prior use), the division will have to determine the following details:

(i)the date on which the alleged use occurred, i.e. whether there was any instance of use before the relevant date (prior use); 

(ii)what has been used, in order to determine the degree of similarity between the object used and the subject-matter of the European patent; and 

(iii)all the circumstances relating to the use, in order to determine whether and to what extent it was made available to the public, as for example the place of use and the form of use. These factors are important in that, for example, the details of a demonstration of a manufacturing process in a factory or of the delivery and sale of a product may well provide information as regards the possibility of the subject-matter having become available to the public. 

On the basis of the submissions and the evidence already available, e.g. documents confirming sale, or affidavits related to the prior use, the division will first establish the relevance of the alleged prior use. If on the basis of this assessment it is of the opinion that the prior use is sufficiently substantiated and relevant, and if the prior use is not contested, the division may take a decision using the submissions and the evidence already available. If the prior use or certain circumstances relating to it are contested, the division will need to take further evidence (e.g. hearing witnesses or performing an inspection) for those facts which are relevant to the case and which cannot yet be considered proven on the basis of the evidence already submitted. According to the circumstances of a particular case, such further evidence might have to be submitted by the party(ies). Evidence is always taken under participation of the party(ies), normally in oral proceedings. For details concerning means of evidence see E‑IV, 1.2.