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In T 743/89, however, the board applied the principle of prima facie evidence. Here, it had been proved that a leaflet disclosing the invention had been printed seven months before the date of priority, but it was uncertain when the leaflet had been distributed. The board took the view that, although the date of distribution could no longer be ascertained, it was reasonable in any event to assume that distribution had occurred within the seven-month period. The respondents contended that this was not the case, but the board considered this assertion to be so lacking in plausibility that it placed the onus of proof on the respondents.
In T 326/93, the board held that, in assessing public prior use, the burden of proof lay with the opponent, who had to show, on the balance of probabilities, firstly that the invention had been publicly demonstrated before the priority date and secondly that the skilled person would have drawn the necessary teaching from the demonstration (see also T 472/92, OJ 1998, 161; T 750/94, OJ 1998, 32; T 848/94).
Ruling on an objection of prior public use in T 221/91, the board held that it was for the patent proprietors to prove the existence of an obligation to maintain secrecy when the opponents had proved that the invention had been made available to the public and the patent proprietors had claimed the existence of a secrecy agreement (see also T 969/90 and T 1054/92).
In T 901/95 the board decided that merely claiming that generating equipment was installed into ships at three different shipyards and thus available to the public was not enough to demonstrate its obvious prior use. Shipyards were normally considered restricted areas and thus not open to the general public. This applied all the more to installations built into ships in the yards. Nor could the possibility be excluded that shipyards' business partners might secure their common interests through explicit or tacit secrecy agreements, in the absence of other protection. In the case in point, it was also questionable whether the relevant process steps and the functional arrangement of the switching means were apparent from merely looking at built-in apparatus; nor was it certain when the generating installations had become operational. Both parties dispensed with oral proceedings and no witnesses were heard; the board did not in these circumstances consider the alleged public prior use.
In T 826/03 the applicant had questioned the correctness of the publication date of document D3, which was a Canadian patent application based on an international application, during examination. Nevertheless, the examining division had considered document D3 to belong to the prior art within the meaning of Art. 54(2) EPC 1973, based on an e-mail response from the Canadian Intellectual Property Office (CIPO) to a corresponding enquiry by the EPO. In the appeal, the appellant contested the validity of this information provided by CIPO and argued that, due to specific circumstances in the particular case, the Canadian application according to D3 had not been made public at the date of entry into the national phase but only much later. As supporting evidence for its submission, the appellant produced several documents. In an attempt to resolve the contradictory evidence the board made another enquiry at CIPO but did not receive any response.
The board understood that it was faced with contradictory evidence with regard to the publication date of document D3. It could not refute with sufficient certainty the appellant's allegation that, in the specific case at issue, a dispute between the applicant of D3 and the various patent offices concerned with regard to the validity of the claimed priority had affected the public access to the content of the application according to D3. As a matter of principle, if an adverse decision of an organ of the EPO was to rely on a certain fact, that fact should be proven beyond any reasonable doubt. In the present case, in view of the contradictory evidence on file and in the absence of any further clarifying information on the part of CIPO, it was virtually impossible for the board to establish with certainty that the public had had access to the Canadian application according to document D3, before the priority date claimed by the application. For the above reasons, the board considered that document D3 did not belong to the prior art within the meaning of Art. 54(2) EPC 1973.