Late published prior art

Subsequently published patent applications with an earlier priority date are also referred to as late published prior art. Patent applications that have already been filed but have not yet been published are considered to be prior art under German and European patent law, even though their contents are not available to the public at the filing or priority date of the subsequent application. Late published prior art is only taken into account during the novelty examination and is not used to assess inventive step. In examination proceedings before the DPMA, national patent applications and European patent applications can constitute notional prior art (Sec. 3(2) PatG). In examination proceedings before the EPO, European patent applications count as notional prior art (Article 54(3) EPC).