Article 54

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1. An invention shall be considered to be new if it does not form part of the state of the art.

2. 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.

3. Additionally, the content of European patent applications as filed, the dates of filing  of which are prior to the date referred to in paragraph 2 and which were published on or after that date, shall be considered as comprised in the state of the art.

4. Paragraphs 2 and 3 shall not exclude the patentability of any substance or composition, comprised in the state of the art, for use in a method referred to in Article 53(c), provided that its use for any such method is not comprised in the state of the art.

5. Paragraphs 2 and 3 shall also not exclude the patentability of any substance or composition referred to in paragraph 4 for any specific use in a method referred to in Article 53(c), provided that such use is not comprised in the state of the art.

 

UPC Case Law

 

IPPT20240704, UPC CFI, CD Paris, DexCom v Abbott 
Novelty (Article 54 EPC). In order to be considered part of the state of the art, an invention must be found integrally, directly and unambiguously in one single piece of prior art and in its existing form it must be identical with its constitutive elements, in the same form, with the same arrangement and the same features. 

 

IPPT20240703, UPC CFI, LD Düsseldorf, Kaldewei v Bette
Burden of proof invalidity (article 54 UPCA). The burden of presentation and proof for facts relating to an attack on the novelty and/or inventive step of the patent in dispute lies with the defendant. Novelty: direct and unambiguous disclosure (Article 54 EPC). A technical teaching is new if it deviates from the prior art in at least one of the known features. Only that which is directly apparent to a person skilled in the relevant technical field from publication or prior use is anticipated in the prior art. Findings that a skilled person only obtains on the basis of further considerations or by consulting other publications or uses are not prior art. The mere fact that the skilled person has two options for understanding the information speaks against the existence of a direct and unambiguous disclosure.