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Case Law of the Boards of Appeal

 
 
d)
Availability by a single member of the public 

According to the jurisprudence of the boards of appeal, information is said to be publicly available if only a single member of the public is in a position to gain access to it and understand it, and if there is no obligation to maintain secrecy (T 1081/01, and T 1510/06, T 1309/07). Whether or not a member of the public has actually accessed the information is irrelevant (see T 84/83).

As to the question whether a person in charge of the reception and date stamping of a document received by mail in a public library is a member of "the public" within the meaning of Art. 54(2) EPC, the case law has decided as follows:

In T 834/09 the question to be decided was whether or not document D1 was made available to the public before the earliest priority date of the contested patent, i.e. before 23 April 1996. Document D1 was received and date stamped by the University of California Libraries San Diego on 3 April 1996. However, there was no evidence whatsoever that D1 was shelved before the relevant date. The board stated that from the case law of the boards of appeal, it followed by analogy that the person in charge of the reception and date stamping of an incoming document at a public library is without any doubt a member of the public as this staff member is in no way bound by any obligation to maintain secrecy about the publications he/she handles and the content thereof, and after all, his/her very function as a staff member of a public library is to make information available to the public. The board went on to state that in the case of a written disclosure it is irrelevant whether the staff member is a person skilled in the art or not, because the content of a written disclosure can be freely reproduced and distributed even without understanding it. Thus the board held that the reception and date stamping of an incoming document by a staff member of a public library makes the document available to the public.

In T 314/99 it was undisputed that the diploma thesis arrived in the archive of the Chemistry Department Library of the University of Hamburg before the priority date. However, in the board's judgment, the diploma thesis did not by its mere arrival in the archive become publicly available, since that did not mean it was as of that point in time catalogued or otherwise prepared for the public to acquire knowledge of it, and because without such means of information the public would remain unaware of its existence.

In T 1137/97 the board stated that the strength of the presumption in favour of the accuracy of a "Received" date marking appearing on the copy of a journal in a library as evidence of the actual date when the journal was made available to the public would depend on the library routine used. The board did not accept a handwritten date on the cover of a journal in view of other evidence. Thus document D1 did not form prior art pursuant to Art. 54(2) EPC 1973.