In T 37/96 the board had to decide on the public availability of some prior-art documents. Two of them were typical company papers. The board held that unlike scientific or technical journals, such papers as prospectuses or product descriptions could not be assumed to have automatically made their way into the public domain. On the contrary, whether they had indeed been available to the public on a given date depended on the particular circumstances and the evidence available (see also T 77/94, T 1017/01). In T 19/05 the board stated that the document was a company-generated technical paper and could thus not be assumed to have automatically made its way into the public domain.
In T 278/09, when examining whether a product data sheet had been available to the public, the board observed that such a sheet merely described the components and features of newly developed or improved products, but as such contained no evidence in relation to marketing or any public availability. The decision whether and when to market a product could depend on other circumstances, such as the economic climate and the relevant firm's marketing policy. In any event, product data sheets did not necessarily become information destined for the public when it was decided to market the product they described, as customers to whom the sheet was distributed could be obliged to treat it as confidential. It was therefore insufficient in such a case to decide on the mere balance of probabilities that simple suppositions that an allegedly novelty-destroying product data sheet had been made available to the public were accurate (see also T 738/04). A product data sheet thus does not provide the same level of information as an advertising brochure (T 184/11, see below).