1.9.2 Patent and utility models

T 877/98 raised the question whether a German patent had become publicly available upon notification of the grant decision if the application had not been published previously. The board took the view that the patent had not become available until publication of grant in the patent bulletin; only from that point on was the file open for inspection. It thus endorsed the view of the German Federal Patents Court (decision of 23.12.1994, 4W(pat)41/94, BlfPMZ 1995, 324).

In T 315/02 the board said that a patent application not yet published in its country of origin could form part of the state of the art within the meaning of Art. 54(2) EPC 1973 if it was accessible to the public as a priority document for a published European application (Art. 128(4) EPC 1973).

In T 355/07 the board held that German utility models were considered publicly available as of their date of entry in the Register of utility models of the German Patent and Trademark Office (DPMA) so that they represented prior art in terms of Art. 54(2) EPC. It was not relevant whether on that date a member of the public actually inspected the file.

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