Implicit disclosure

3.32 The prior art is read through the eyes of the person skilled in the art, and as a consequence the implicit features of a document may also be taken into account for novelty purposes. Thus, if the person skilled in the art would read a disclosure as including a particular feature without it being specifically mentioned it would be considered an implicit feature of that disclosure.

3.33 The teaching must be such that it would be understood by a person skilled in the art reading in the light of common general knowledge – available at the date of the disclosure – special knowledge must not be required in order for the matter to be understood (H.Lundbeck A/S v Norpharma SpA [2011] RPC 23). The prior art document must be construed at the date of the disclosure and not in light of the subsequent patent (SmithKline Beecham Plc’s (Paroxetine Methanesulfonate) Patent [2006] RPC 10).

3.34 For example the disclosure of a control arrangement for the cooling system of an internal combustion engine might not refer to the presence of a radiator or other heat exchanger in the system, but it is common knowledge that this is necessary. A novelty objection could therefore be raised even if a citation did not specify this feature. In contrast, it may be a common practice for the radiator to be mounted in front of the engine, but this is not necessarily always the case. In this situation, a novelty objection cannot be raised based on a citation that does not specifically disclose this feature. An objection of obviousness would then be appropriate.