Standards define sets of characteristics or qualities for products, processes, services or materials (e.g. the properties of an interface) and are usually developed by Standards Development Organisations (SDOs) by consensus amongst the relevant economic stakeholders.
Final standards themselves in principle form part of the state of the art under Art. 54(2), although there are important exceptions. One of these relates to private standards consortia (e.g. in the field of CD-ROM, DVD and Blu-ray discs), which do not publish the final standards but make them available to the interested circles subject to acceptance of a non-disclosure agreement (categorically forbidding the recipients of the documents to disclose their content).
Before an SDO reaches agreement on the establishment or further development of a standard, various types of preparatory documents are submitted and discussed. These preparatory documents should be treated like any other written or oral disclosures, i.e. in order to qualify as prior art they must have been made available to the public prior to the filing or priority date without any bar of confidentiality. Thus if a standard preparatory document is cited against an application during search or examination, the same facts are to be established as for any other piece of evidence (see G-IV, 1 and T 738/04).
The existence of an explicit confidentiality obligation must be determined case by case on the basis of the documents allegedly setting forth this obligation (see T 273/02 and T 738/04). These may be general guidelines, directives or principles of the SDO concerned, licensing terms or a Memorandum of Understanding resulting from interaction between the SDOs and their members. In case of a general confidentiality clause, i.e. one that is not indicated on or in the relevant preparatory document itself, it must be established that the general confidentiality obligation actually extended to the document in question until the relevant point in time. This does not however require the document itself to be explicitly marked as confidential (see T 273/02).
If the preparatory documents are available in the EPO's in-house databases or at freely accessible sources (for example, on the internet), the examiner is allowed to cite them in the search report and to refer to them during the procedure. The public availability of the documents, if at all necessary, may be further investigated during examination and opposition in accordance with the principles set out above.
While documents in the EPO's in-house databases are regarded as being available to the public, no general indication can be given for documents obtained from other sources.