Patents: Prior Art

Matter that forms part of the state of the art. In both the Patents Act 1977 and the European Patent Convention the state of the art is defined in relation to an application for a patent for an invention because an invention is patentable only if the invention is new and involves an inventive step.

S. 2 (1) of the Patents Act 1977 provides:

“The state of the art in the case of an invention shall be taken to comprise all matter (whether a product, a process, information about either, or anything else) which has at any time before the priority date of that invention been made available to the public (whether in the United Kingdom or elsewhere) by written or oral description, by use or in any other way.”

This is equivalent to art 54 (2) of the European Patents Convention:

“The state of the art shall be held to comprise 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.”

In addition, the state of the art includes matter comprised in patent applications made before the patent application.   Art 54 (3) provides:

“Additionally, the content of European patent applications as filed, the dates of filing of which are prior to the date referred to in [art 54 92)] and which were published on or after that date, shall be considered as comprised in the state of the art.”

S.2 (3) of the Patents Act 1977 is in similar terms:

“The state of the art in the case of an invention to which an application for a patent or a patent relates shall be taken also to comprise matter contained in an application for another patent which was published on or after the priority date of that invention, if the following conditions are satisfied, that is to say -

(a)  that matter was contained in the application for that other patent both as filed and as published; and

(b)  the priority date of that matter is earlier than that of the invention.”