T 0381/87 (Publication) vom 10.11.1988

1. A document is not "made available to the public" merely by being addressed to a member of the public and placed in a post- box. It is only "made available to the public" by its delivery to the addressee (see point 4(2) of the Reasons).

2. In relation to an issue of fact (here: when a document was first made available to the public), the EPO must decide what happened, having regard to the available evidence, on the balance of probabilities: i.e. it must decide what is more likely than not to have happened (see point 4(4) of the Reasons).

3. If a document in a library "would have been available to anyone who requested to see it" on a particular day, such fact is sufficient to establish that the document was "made available to the public" on that day: it is not necessary as a matter of law (i) that any member of the public would have been aware that the document was available on that day, whether by means of an index or otherwise, or (ii) that any member of the public actually asked for the document on that day (see point 4(4)(b) of the Reasons).

4. Where during examination of an application it should be clear to the Applicant that the only set of claims under consideration could well be refused, any auxiliary request(s) in respect of alternative claims should be made to the Examining Division, taking into account the reason given for the likely refusal. The Examining Division should then examine and decide upon the main request and, if this is not allowed, upon any such auxiliary request (subject to the exercise of its discretion under Rule 86(3) EPC) in its decision. If such an auxiliary request is not made until a late stage of appeal proceedings (e.g. during oral proceedings), the request may be refused in the exercise of the Board's discretion, following Decision T 153/85 "Alternative claims/AMOCO" (OJ EPO 1988,1).