I. Whatever the means of disclosure (written description, oral
description, use by sale, etc), availability in the sense of
Article 54(2) EPC involves two separate stages: availability of
the means of disclosure, and availability of information which
is accessible and derivable from such means.
II. Information as
to the composition or internal structure of a prior sold product
is made available to the public and becomes part of the state of
the art in the sense of Article 54(2) EPC if direct and
unambiguous access to such information is possible by means of
known analytical techniques which were available for use by a
skilled person before the relevant filing date.
III. The likelihood or
otherwise of a skilled person analysing such a
prior sold product, and the degree of burden (i.e. the amount of
work and time involved in carrying out such an analysis), is in
principle irrelevant to the determination of what constitutes
the state of the art.
IV. The novelty of a claimed invention is
destroyed by the prior disclosure (by any means) of an
embodiment which falls within the claim. The possibility of a
complete analysis of a prior sold product is not necessary. The
novelty of a claim is destroyed if an analysis of a prior sold
product is such as to inform the skilled person of an embodiment
of the product which falls within the claim.
V. The wording of a
translation published in the Official Journal of the EPO of the
official text of an opinion issued by the Enlarged Board of
Appeal pursuant to Article 22(1)(b) EPC is legally irrelevant to
the interpretation of such official text.
