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.