Legal framework
Under Article 54(2) EPC, the state of the art comprises everything made available to the public before the filing date of the European patent application, whether by written disclosure, oral disclosure, use, or in any other way. Since EP-N was filed in January 2025 and claims no priority, the relevant cut-off date is the filing date of EP-N.
Internet disclosures may form state of the art. The EPO Guidelines state that information disclosed on the internet or in online databases is considered publicly available as of the date it was publicly posted.
The files of a published European patent application are also publicly inspectable. Under Article 128(4) EPC, after publication of a European patent application, the files relating to the application and the resulting European patent may be inspected, subject to the restrictions in the Implementing Regulations.
Oral proceedings before opposition divisions are generally public under Article 116(4) EPC, unless the department decides otherwise in exceptional circumstances. A public oral statement may therefore make information available to the public under Article 54(2) EPC.
By contrast, the file of international preliminary examination under PCT Chapter II is confidential. Under Article 38(1) PCT, neither the International Bureau nor the International Preliminary Examining Authority may allow access to the file of international preliminary examination except in the limited situations provided for in that provision.
Statement a)
Statement a) is true.
The blog entry was posted by applicant X on the internet on 29 December 2024, before the filing of EP-N in January 2025.
The EPC does not generally exclude an applicant’s own disclosures from the state of the art. If the blog entry was publicly accessible, it was made available to the public before the filing date of EP-N. It therefore forms state of the art under Article 54(2) EPC. Internet disclosures are, as a rule, treated as publicly available from the date on which they were publicly posted.
Therefore, statement a) is true.
Statement b)
Statement b) is true.
The comparative tests were filed in July 2024 in the file of European patent application EP-L. EP-L was then published in December 2024, before the filing of EP-N in January 2025.
After publication of a European patent application, the application file is open to public inspection under Article 128(4) EPC. The EPO’s Guide also explains that, once a European patent application has been published, files relating to it are available for public inspection via the European Patent Register.
Thus, the comparative tests became publicly available in December 2024, before the filing date of EP-N. They therefore represent state of the art under Article 54(2) EPC.
Statement c)
Statement c) is false.
The comparative tests were filed in September 2024 together with the demand for international preliminary examination in PCT-M. They therefore formed part of the Chapter II international preliminary examination file.
That file is confidential under Article 38 PCT. In particular, access to the file of international preliminary examination is not available to the public before the international preliminary examination report is established. Here, the report was issued only in June 2025, i.e. after the filing of EP-N in January 2025.
Accordingly, the tests were not made available to the public before the filing date of EP-N. They are not state of the art under Article 54(2) EPC for EP-N.
Statement d)
Statement d) is true.
The oral statement was made in November 2024 during oral proceedings in opposition against European patent EP-H. Oral proceedings before opposition divisions are public, unless the opposition division decides otherwise in exceptional circumstances.
A public oral disclosure can be state of the art under Article 54(2) EPC. The EPO Guidelines confirm that a public oral description, use, exhibition, or similar disclosure may be prior art if the facts of the disclosure can be proved.
Therefore, the oral statement made in public opposition oral proceedings before the filing date of EP-N represents state of the art under Article 54(2) EPC.
Exam tip
For Article 54(2) EPC, ask one question: was the information made available to at least one member of the public before the effective filing date, without a confidentiality bar?
Applicant’s own disclosures can count. Internet posts can count. Documents in a published EPO file can count. Oral statements in public opposition proceedings can count. But documents in a confidential PCT Chapter II file do not count before they become publicly accessible, if they ever do.
Legal Disclaimer
The information provided in this post is for general informational purposes only and does not constitute legal advice. This content should not be used as a substitute for professional legal advice tailored to your specific circumstances. For advice related to any specific legal matters, you should consult a qualified attorney.