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Case Law of the Boards of Appeal

 
 
1.9.4 Internet disclosures

In T 1553/06 the board developed a test for assessing the public availability of a document stored on the World Wide Web which could be found via a public web search engine on the basis of keywords. In devising this test the board started from its finding that the mere theoretical possibility of having access to a means of disclosure did not make it become available to the public within the meaning of Art. 54(2) EPC 1973. What is required, rather, is a practical possibility of having access, i.e. "direct and unambiguous access" to the means of disclosure for at least one member of the public as set out in G 1/92 (OJ 1993, 277) and T 952/92 (OJ 1995, 755). In the case of a document stored on the World Wide Web which can only be accessed by guessing a Uniform Resource Locator (URL) not made available to the public, "direct and unambiguous access" to the document is possible in exceptional cases only, i.e. where the URL is so straightforward, or so predictable, that it can readily be guessed. The fact that a document stored on the World Wide Web could be found by entering keywords in a public web search engine before the priority or filing date of the patent or patent application is not always sufficient for reaching the conclusion that "direct and unambiguous access" to the document was possible. The test is as follows: Where all the conditions set out in the following test are met, it can be safely concluded that a document stored on the World Wide Web was made available to the public:

If, before the filing or priority date of the patent or patent application, a document stored on the World Wide Web and accessible via a specific URL

(1) could be found with the help of a public web search engine by using one or more keywords all related to the essence of the content of that document and

(2) remained accessible at that URL for a period of time long enough for a member of the public, i.e. someone under no obligation to keep the content of the document secret, to have direct and unambiguous access to the document,

then the document was made available to the public within the meaning of Art. 54(2) EPC 1973.

However, it should be noted that if either of conditions (1) and (2) is not met, the above test does not permit any conclusion to be drawn on whether or not the document in question was made available to the public.

In T 2/09 the board stated that it had doubts as to whether public availability of e-mails transmitted via the Internet could reasonably be established at all if the technical conditions of the test in T 1553/06 for public availability of webpages were to be applied mutatis mutandis, i.e. whether e-mails transmitted over the Internet could be accessed and searched in a way comparable to that of webpages, independent of whether or not access to and disclosure of the content of the e-mail were lawful. The board was rather of the opinion that the differences between webpages and such e-mails make a strong prima facie case against public availability of the latter. The board decided that the content of an e-mail did not become available to the public within the meaning of Art. 54(2) EPC 1973 for the sole reason that the e-mail was transmitted via the internet before the filing date of 1 February 2000.

For information on the standard of proof required for Internet disclosures, see below point 2.5 "Information retrieved from the internet: proof of the date of availability".