3.2.1 Publications and other printed documents
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).
- T 0733/23
In T 733/23 the opposition division had concluded that there had been insufficient evidence to prove that the data sheets D2, D4, and D7 to D9 had been made available to the public before the filing date. Rather than concluding that, as a result of the data sheets not being considered state of the art under Art. 54 EPC, the subject-matter of the claims was novel, the opposition division decided not to admit them into the opposition proceedings. The board concluded that not admitting these data sheets, filed in due time, constituted a substantial procedural violation (see details as from point 4 of the Reasons including discussion on D19, an affidavit).
The board, in support of its decision, presented some key considerations on public availability of advertising brochures and data sheets, as well as the standard of proof to be applied. The board stated that when a document was clearly intended to be publicly distributed, as was the case with advertising or commercial brochures, the absence of a specific publication or distribution date, a situation quite common in this type of document, was not in itself sufficient to conclude that the document did not constitute prior art. As with any other type of evidence, the key question was not whether the exact date of publication could be determined, but whether it could be established that the relevant subject-matter was made available to the public before the priority or filing date.
Data sheets often represent an intermediate case between internal documents and advertising brochures. Where no publication date is present, the board held it should first be assessed whether the document was intended for public distribution. If so, additional sources must be examined to establish whether the relevant subject-matter was publicly accessible before the patent’s filing or priority date. Here, the opposition division had failed to provide a reasoned decision on public availability, giving no weight to the dates printed on their front pages.
As to the standard of proof, the present board concurred with the position in T 1138/20 that there is only one standard of proof: the deciding body must be convinced, based on the underlying circumstances.
According to the present board, this did not imply that all cases were to be treated identically, as in practice the degree of proof required to establish credibility (i.e. to persuade the board) might vary depending on the specific circumstances. In other words, it was not the standard of proof that adjusted with the circumstances, but rather the credibility of the arguments made by the different parties. For example, when the evidence was exclusively controlled by one party, any gaps in the relevant information might significantly undermine that party's credibility. Conversely, when the information was equally accessible to both parties but only one party submitted evidence, merely raising doubts might not be sufficient to challenge the credibility.
In the present case, the conclusions of the opposition division suggested that the standard of proof "up-to-the-hilt" was applied to determine the public availability of the data sheets. Even if the board agreed that different standards should be applied, this would not be justified in the case in hand, as the relevant information to prove the public availability of the data sheets was not within the exclusive sphere of the appellant (opponent). In this instance, the relevant information would more likely be within the sphere of the patentee. Therefore, there was no basis for applying the strict standard of "up-to-the-hilt" or for questioning the credibility of the appellant (opponent) solely on the grounds that some information was missing.
The patentee argued that, when in doubt, the patent should be upheld. The board disagreed. Fact-finding boiled down to a binary exercise: either something had been proven, or it had not. In addition, there was no presumption of patent validity in proceedings meant to re-assess the validity of this very patent.