Article 54 EPC: Novelty

Text of Article 54 EPC

In plain English

Europe applies absolute novelty. Anything made available to the public anywhere in the world, in any language and in any form, before the filing date counts against the application. Where priority is validly claimed, the priority date takes the place of the filing date (Article 89).

There is no general grace period. Article 55 only shelters a disclosure made in the six months before filing if it was an evident abuse against the applicant or a display at an officially recognised international exhibition, and the second case needs a statement on filing and a certificate. A conference talk, a sale or a blog post by the inventor before filing will usually destroy novelty.

Article 54(3) adds European applications filed before your date but published on or after it. They count for novelty only: the second sentence of Article 56 keeps them out of the inventive-step assessment. A Euro-PCT application counts once the conditions of Article 153(3) or (4) are met (Article 153(5)).

Products and prior use count too. Under G 1/92 a product's composition was prior art if it could be analysed and reproduced. G 1/23 (2 July 2025) went further: a product put on the market before the filing date cannot be excluded from the state of the art just because its composition or internal structure could not be analysed and reproduced.

A disclosure only takes away novelty if it is enabling; for overlapping ranges, the question is whether the skilled person would seriously contemplate working in the overlap (T 26/85). New uses can be new: a use claim based on a technical effect described in the patent includes that effect as a functional feature (G 2/88), and Article 54(4) and (5) allow a known substance to be claimed for a first or further medical use.

Key decisions

• G 1/23 : A product put on the market before the filing date is not excluded from the state of the art for the sole reason that it could not be analysed and reproduced; technical information about it is prior art.
• G 1/92 (Availability to the public) : The chemical composition of a product is state of the art when the product is available to the public and can be analysed and reproduced, whatever the reason for analysing it.
• G 2/88 (Friction reducing additive) : A claim to the use of a known compound for a purpose based on a newly described technical effect includes that effect as a functional feature and is novel if the effect was not made public.
• G 3/93 (Priority interval) : A document published in the priority interval is prior art under Article 54(2) to the extent the priority claim is invalid, including where the claims are not the same invention as the priority document.
• T 26/85 (Thickness of magnetic layers) : Prior art counts only so far as it enables the skilled person; for overlapping ranges, novelty is lost if the skilled person would seriously contemplate working in the overlap.

Common objections

Anticipation by a single document

The examiner identifies every claim feature in one document, explicitly or implicitly. Answer by pointing to a feature that is not directly and unambiguously disclosed, or amend with a feature from the description that has a clear basis (Article 123(2)).

Article 54(3) document

Because it does not count for inventive step, a small distinguishing feature is enough. An undisclosed disclaimer is allowed to restore novelty over Article 54(3) art or an accidental anticipation, within the limits of G 1/03 and G 1/16.

Own prior disclosure

If the applicant published or sold before filing, check whether a valid priority date predates it. If not, Article 55 rarely helps, and the claims must be distinguished from the disclosure itself.

Drafting and prosecution tips

• File before any public disclosure, including investor decks shared without confidentiality, conference abstracts and product launches.
• Write dependent claims and description passages that give fallback positions, including narrower ranges and specific examples, so that a new citation does not leave you with nothing to amend to.
• Check that each claim is entitled to priority. If it is not, documents published in the priority year become prior art (G 3/93).