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 was 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, e.g. where and in what form, in order to determine whether and to what extent it was made available to the public. These factors are important because the details of, for example, a demonstration of a manufacturing process in a factory or the delivery and sale of a product may well provide information as regards whether it is possible that the subject-matter became available to the public. 

Based on 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, based on this assessment, it considers that the prior use is sufficiently substantiated and relevant, and if the prior use is not contested, it 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. by hearing witnesses or performing an inspection) for those facts which are relevant but cannot yet be considered proven on the basis of the evidence already submitted. Depending on the circumstances of the individual case, this further evidence may have to be submitted by the party or parties. Evidence is always taken with the participation of the party or parties, normally at oral proceedings. For details on means of evidence, see E‑IV, 1.2.