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Errors in citations

3.42 Occasionally, citations will contain errors. The key question in such cases is what the document would disclose to the person skilled in the art, and not merely what a strictly literal interpretation of the document would provide.

3.43 For example, a feature of the invention may be disclosed in an abstract but the document referred to in the abstract shows that the abstract is wrong. In this case the document referred to would be regarded as providing the definitive description of the matter and the abstract would not form part of the state of the art (see T 77/87, OJ EPO 1990). The person skilled in the art would recognize the error and would know how to correct it. Only the corrected version would therefore be taken into account.

3.44 In Dr Reddy’s Laboratories (UK) Ltd v Eli Lilly and Co Ltd [2008] EWHC 2345 (Pat), the Court considered a situation where a citation apparently contained an error in a chemical formula. The invention related to the compound olanzapine (an unsubstituted 4-methylpiperazinyl-10H-thienobenzodiazepine). A table showed a formula corresponding to olanzapine, but in which the piperazine ring was piperidine. Furthermore, the article was entitled “A Free-Wilson Study of 4 piperazinyl-10H-thienobenzo diazepine analogues”. Reddy’s argued that the person skilled in the art would recognize that the citation contained an error on the basis that:

(a) the numbering in the ring was consistent with a piperazine derivative rather than piperidine;

(b) the document title referred to “piperazines” and it was easier to make an error in a formula rather than a title;

(c) if the bridge carbon was carbon rather than nitrogen then it would be chiral but this was not indicated in the formula.

3.45 The second and third points were not considered persuasive since the authors may not have been concerned with stereochemistry and there was no basis for concluding that one error would be more likely than another. The Court considered that the first point was the strongest, but accepted submissions that the person skilled in the art would not necessarily notice this point or indeed consider it important. The Court noted a finding where the person skilled in the art would, on balance, conclude that citation was disclosing piperazines is not the same as a finding where he would conclude that it was doing so clearly and unambiguously.

3.46 Thus:

(a) if the person skilled in the art would have recognised that the document contained an error, and would have known how to correct it, the corrected material forms part of the state of the art;

(b) if the person skilled in the art would have recognised the error, but not known how to rectify it, neither the error nor the corrected matter form the state of the art; and

(c) if the person skilled in the art would not have recognised the error, but submissions or evidence from the applicant establishes that there is an error, then the matters relating to that error are not part of the state of the art.