Novelty and Implicit Prior Description

A prior art document must be interpreted in the light of common general knowledge available at its publication date. Common general knowledge that did not exist at this date, and only became available at a later date, cannot be used for evaluating any novelty destroying effect the prior art document may have had on its date of publication. Accordingly, the disclosure of a prior art document has to be determined as it would have been determined at the date of publication of that document.

The disclosure of a prior art document does not change over time, and the technical content of the document is that which was disclosed to a skilled person at the time the document was written and published. Interpretation of a document based on knowledge that did not become available until sometime after the date of publication of a cited prior art document and prior to the filing date of a later filed patent application is of no relevance when evaluating the prior art document for the purpose of assessing the novelty of the invention described in a later filed patent application.

It is not acceptable to use the concept of an "implicit prior description" so that considerations relevant to the evaluation of inventive step are transferred to the assessment of novelty. A fair assessment of an invention''s patentability must make a clear distinction between novelty and inventive.