[…] The Respondent argued firstly that document D11a could not be regarded as the closest prior art, since it could not be regarded as a document, as it was merely the English translation of 23 from a total of 167 paragraphs of the Japanese document D11. It was important to consider the whole content of a document when assessing its true disclosure, this not being possible in the present case, as large portions of the original document D11 were missing. The remaining disclosure of this document was thus not available, since document D11 was in Japanese, Japanese not being an official language of the EPO.
However, the Board holds that there are no reasons to doubt the validity of what is actually disclosed in D11a, the Respondent not having provided any arguments in this respect. The mere fact that only a part of a document is available does not, in itself, throw doubts on the disclosure of said part of the document. Thus, although document D11 contains additional information to that disclosed in document D11a, this fact does not in any way depreciate the actual disclosure of document D11a, more particularly that of claims 1, 5 and 6 together with the definition of the water-insoluble powder in paragraph [0074].
The Board thus holds that document D11, to the extent of its translation into English in the form of document D11a, is to be considered as forming part of the state of the art for the purposes of A 56. [4.2.1]
NB: I owe the knowledge of this decision to a recent post on Le blog du droit européen des brevets.
To read the whole decision, just click here.
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