Trilateral Project 24.1-Biotechnology 145

In general, the content of European patent applications as filed, of which the dates of filing are prior to the date of filing of the application in question and which were published on or after that date, are considered under Article 54(3) EPC as comprised in the state of the art, in so far as a Contracting State designated in respect of the later application, was also designated in respect of the earlier application as published. This provision is intended to avoid the double patenting of an invention. A prior right is only effective in states designated in both applications. The prior right is established when the prior application is published, whether or not a patent is granted on it later-on. However, if the earlier application is not any more valid at the date of publication, e.g. due to withdrawal during the publishing preparation, there will be no prior right, and the earlier application will only be citable as "normal" prior art, i.e. according to Article 54(1) EPC, from its date of publication. Moreover, national prior rights are not valid for the European Patent Office.

In view of the above it is emphasised that for all the following examples and questions it is immaterial for the assessment of novelty whether a prior art document was published before the filing date of the application in question or whether the prior art document is another European application which was filed prior to the date of the application in question but published after that date and designating some of the Contracting States designated by the application in question.