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Case Law of the Boards of Appeal

 
 
c)
Archival evidence 

In T 314/99 concerning the availability to the public of a diploma degree paper ("Diplomarbeit"), the board took the view that the paper had not become publicly available by its mere arrival in the archive of the Chemistry Department Library of the University. The logbook produced in evidence was a handwritten note book in which the diploma degree papers received in the archive were entered by the librarians. The logbook itself was not an official publication of the library but essentially an internal document of the library staff. After closer examination of the annotations in the logbook, the board said that it could not be concluded with certainty that the relevant entries had actually been made before the relevant priority date and it could not be ruled out that they had been added at a later time, when for one reason or another the time frame had become relevant.

In T 91/98 the respondent (opponent) had challenged inventive step on the basis of document (8) which was an entry from the Lexis-Nexis database. The document did not, however, provide any evidence as to when this information had been entered into the database, i.e. as to when it had been made available to the public. Nor could the date of availability be taken as the date mentioned in the heading of the entry (September 3, 1985) as this latter date could not be equated to the distribution date of the information and was not even necessarily correct. After detailed evaluation of the declarations and affidavits filed by the respondent the board arrived at the conclusion that the date on which the information contained in document (8) had been made available to the public could not be unambiguously defined.