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Case Law of the Boards of Appeal

1.9.1 Publications and other printed documents

The cases below concern publications and other printed documents except for "Patent and utility models" and "Abstracts of documents", considered in point 1.9.2 and 1.9.3 further below.

In T 1829/06 the board stated that, according to established jurisprudence, information was considered to be made available to the public even if only one member of the public had access to it and there was no bar of confidentiality restricting the use or dissemination of such information. The fact that this member of the public acted as a straw man or that the opponent itself could have had difficulties in obtaining the article was immaterial.

In T 278/09, when examining whether a product data sheet had been available to the public, the board observed that such a sheet merely described the components and features of newly developed or improved products, but as such contained no evidence in relation to marketing or any public availability. The decision whether and when to market a product could depend on other circumstances, such as the economic climate and the relevant firm's marketing policy. In any event, product data sheets did not necessarily become information destined for the public when it was decided to market the product they described, as customers to whom the sheet was distributed could be obliged to treat it as confidential. It was therefore insufficient in such a case to decide on the mere balance of probabilities that simple suppositions that an allegedly novelty-destroying product data sheet had been made available to the public were accurate (see also T 738/04).

In T 611/95 a research institute known in the field was in possession of a report anticipating the invention, which anyone could view at the institute or order from it on request. Two papers published prior to the priority date referred to this report and indicated where it could be obtained. In the board's view, the report was therefore publicly available. As far as availability to the public was concerned, the institute was not to be equated with a library, but the information in the documents had indicated to experts in the field that anyone could inspect or order the report there.

In T 842/91 the subject-matter of the claimed invention was included in a book to be published. Shortly before the priority date, the patent proprietor gave permission to the publisher to disclose the contents of the book as follows "[...] I hereby grant the book's publisher unrestricted rights of publication and waive any claims arising therefrom". Moreover, the opponent claimed that as a seminar including the subject-matter had been given shortly after the priority date, it was possible that the article had been distributed before the priority date. The board held that although the patent proprietor had clearly given the publisher permission to make the claimed subject-matter available to the public, this could not of itself amount to actually making it available. Nor could it be assumed merely from the permission given or the date of the seminar that copies had in fact been made available before the priority date.

In T 37/96 the board had to decide on the public availability of some prior-art documents. Two of them were typical company papers. The board held that unlike scientific or technical journals, such papers could not be assumed to have automatically made their way into the public domain. On the contrary, whether they had indeed been available to the public on a given date depended on the particular circumstances and the evidence available.

According to T 165/96 which concerned the public availability of technical information drafted in Danish and disclosed in an insert in a minor small-ads newspaper (circulation: 24,000) distributed in the suburbs of Copenhagen, the "public" within the meaning of Art. 54(2) EPC 1973 did not presuppose a minimum number of people or specific language skills or educational qualifications. It followed that the residents of a Copenhagen suburb were held to represent the public.

In T 267/03 it was ruled that binoculars depicted photographically in a book on binoculars, with the manufacturer's name and an approximate date of manufacture ("ca. 1960") far earlier than the date of filing of the patent in suit, constituted prior art for that patent in respect of the binoculars' internal structure.

T 804/05 concerned the public availability of an advertising brochure usually distributed amongst interested specialists and bearing a date on its cover. The board decided that, in the absence of any evidence to the contrary, it had to be assumed that this brochure had been made available to interested customers, without any obligation to keep it secret, in the months following the cover date.

T 55/01 concerned the public availability of an instruction manual, bearing a publication date, for the satellite receiver of certain makes of television set. The board observed that television sets were mass­market products rapidly distributed on the market for sale or resale. Given that they were undoubtedly sold or resold very quickly, they had to be regarded as publicly available even if there was no evidence of an actual sale. Accordingly, the manual accompanying a television set had to be considered to have already been on sale, and so publicly available, in the months immediately after its publication date.