2.4.5.2.6 Photographs as a Disclosure

Examiners may be required to consider a photograph as an alleged anticipation, most likely as a result of a notice under sec 27.

The issue of a photograph being used as an anticipation was considered in Van der Lely NV v Bamfords Ltd [1963] RPC 61, where it was stated:

"If the photograph is to be held to prove anticipation it must be possible for that man to work from the photograph, and, without himself adding a scintilla of invention, to prepare the necessary drawings and ultimately by a process of trial and error to produce a workable machine which incorporates all the integers in the appellant's claim 1."

Examiners must carefully consider the nature of the photograph, i.e. is it the photograph itself that constitutes the alleged disclosure, or (most commonly) is it the subject that has been photographed that is the alleged anticipation? In the former case, examiners must establish the publication date of the photograph.  In the latter case, the likely objection is based on prior use.

Note: Prior use can only be considered during examination of:

•  standard patent applications with an examination request filed on or after 15 April 2013.
•  innovation patents with an examination request filed on or after 15 April 2013.
•  innovation patents where the Commissioner had not decided before 15 April 2013 to examine the patent.

For all other standard patent applications/innovation patents, prior use cannot be considered during examination (see 2.4.4.1 Prior Art Information).