1. General remarks and definition 

An invention is "considered to be new if it does not form part of the state of the art". The "state of the art" is defined as "everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application". It is important to note the broad scope of this definition. There are no restrictions whatsoever as to the geographical location where the information in question was made available to the public or as to how or in what language it was made available. Nor is any age limit stipulated for the documents or other sources of the information. There are nevertheless some specific exceptions (see G‑V). However, since the "state of the art" available to the examiner will mainly consist of the documents listed in the search report, G‑IV, 3 to 6, deals with the question of public availability only in relation to written description (either alone or in combination with an earlier oral description or use).

The principles to be applied in determining whether other kinds of prior art (which could be introduced into the proceedings e.g. by a third party under Art. 115) have been made available to the public are set out in G‑IV, 7.1 to G-IV, 7.4.

For the examination of the novelty of claimed subject-matter, see G‑VI.

A written description, i.e. a document, is regarded as made available to the public if, at the relevant date, it was possible for members of the public to gain knowledge of its content and there was no duty of confidentiality restricting the use or dissemination of this knowledge. For instance, German utility models ("Gebrauchsmuster") are already publicly available as of their date of entry in the Register of utility models ("Eintragungstag"), which comes before the date of their announcement in the Patent Bulletin ("Bekanntmachung im Patentblatt"). The search report also cites documents where doubts about whether they were publicly available (on "in-house state of the art", see F‑II, 4.3) and doubts about their precise publication date (see B‑VI, 5.6 and G‑IV, 7.5) have not or have only partially been removed (see B‑VI, 5.6 and G‑IV, 7.5).

If the applicant contests the cited document's public availability or its assumed publication date, the examiner needs to consider whether to investigate the matter further. If the applicant shows sound reasons for doubting whether the document forms part of the "state of the art" relevant for the application and any further investigation does not produce evidence sufficient to remove that doubt, the examiner does not pursue the matter. The only other problem likely to arise for the examiner is where:

(i)a document reproduces an oral description (e.g. a public lecture) or gives an account of a prior use (e.g. display at a public exhibition) and 

(ii)only the oral description or lecture was publicly available before the "date of filing" of the European application, while the document itself was published on or after this date. 

In such cases, the examiner initially assumes that the document gives a true account of the earlier lecture, display or other event and therefore regards the earlier event as forming part of the "state of the art". If, however, the applicant gives sound reasons for contesting the truth of the account given in the document, the examiner does not pursue the matter.