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Date Published

It is sometimes stated that an anticipation based solely on a document is a 'mere paper anticipation' and that an especially strict interpretation is required.

The concept of 'mere paper anticipation' arose from Metropolitan-Vickers v B.T.H. Co Ltd (1926) 43 RPC 76 at page 93, where, inter alia, it was stated:

"In Otto v Linford, (1881) 46 LT at page 35 it was held that the later invention must be described in the earlier publication that is held to anticipate it; it is not sufficient that, if a machine had been made according to such description, it would have produced a result, not to be gathered from the description, which would have disclosed such invention."

Thus the concept of 'mere paper anticipation' operates to exclude suggestions that if the citation had been used, something different or additional would have resulted and the something is therefore disclosed. Examiners should note that such suggestions implicitly require evidence of actual use of the citation before the priority date.

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 Prior Art Information).

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