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Case Law of the Boards of Appeal

 
 
b)
Article 54(2) EPC does not necessarily refer to the skilled person 

The boards have decided frequently that information has been made public even if the sale was made to a person not skilled in the art (see T 953/90, T 969/90).

In T 809/95 the patentee justified its position on non-disclosure essentially on the ground that the test persons were not skilled in the art. It cited T 877/90. The board noted that the latter decision dealt with information made public by oral disclosure at a lecture. Public disclosure was there linked to the condition that the audience had to include skilled persons capable of understanding the lecture. Such considerations seem appropriate to an oral disclosure but are not transferable to the case of information made public by making an article available for free use, because Art. 54(2) EPC 1973 only uses the term "public" and makes no reference to "skilled persons". In the case in point, however, it was to be noted for the sake of completeness that all the essential features of the distributed Alpla bottle were identifiable by purely external observation and that no technical knowledge was needed to identify the interaction between the bottom and body fold lines when the bottle was pressed flat.

The word "public" in Art. 54(2) EPC 1973 does not necessarily refer to the man in the street, according to T 877/90 and T 406/92 - a disclosure before a skilled person makes it "public" in the sense that the skilled person is able to understand the disclosure and is potentially able to distribute it further to other skilled members of the public (see also T 838/97).