4.2.4 Archives and internet publications

In T 649/20, in which the board was concerned with the status a scientific article from a journal (D1) as prior art, of which the exact publication date was not available, different pieces of evidence were submitted. The board considered that D14 (extract from public database from the Central Library for Medicine) already provided sufficient evidence that D1 was in fact publicly available before the priority date; the librarian that had received the issue and registered it in the database from which D14 had been obtained was a member of the public in any case for the purposes of Art. 54(2) EPC (see also T 834/09, and cf. T 1050/12). Recent decision T 649/20 contrasts with older case T 314/99. See also T 364/20.

In older decision 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 notebook 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.

T 2284/13 (Wayback machine as prior art) the board accepted a combination of D5, an incomplete archive version of a web page (on the Wayback Machine web.archive.org; publicly available on 2004 with only small images) and D5', a recent download (2009) of the webpage (with full images) as evidence of a prior art publication. Accordingly, when considering the prior art disclosure of D5, the expanded figure "the MRTT fuel system" shown in D5' also had to be regarded as forming part of that disclosure.

In T 1698/08 there was no reason for the board to exercise its discretion to refuse to admit the evidence, as it could neither be said that it was irrelevant nor that it was unnecessary. A refusal to admit could in any case not be based on statements in the document with respect to the accuracy of the facts it contained. Such statements related to the probative value of a document. Based on the principle of the free evaluation of evidence (G 3/97, OJ 1999, 245, point 5 of the Reasons), the board is free in assessing to what extent the information in a document is credible, whereby such a statement may play a role. Case T 1698/08, in respect of the disputed validity of an authorisation related to an (internet) uncertified extract from a commercial register.

In T 286/10 the board held that a merely general allegation that digital libraries were unreliable was not enough to cast doubt on the date on which a document stored with Internet Archive (www.archive.org) had become publicly available. It applied the usual standard of proof on the balance of probabilities (confirmed in T 2227/11, T 1711/11, T 353/14, T 545/08, T 1066/13). See also chapter I.C.3.2.3 "Internet disclosures".

In ex parte case T 3000/19 concerning the use of electronic evidence in proceedings, the refusal decision was based on a YouTube video as prior art, which was no longer accessible as of the date of the board decision. According to the board, examining divisions should make sure that an internet disclosure used as state of the art is reliable in terms of both the publication date and continued accessibility to its content in the version made publicly accessible on that date. Due account should be taken of the rights of third parties and the public to inspect the file under Art. 128 EPC. Since the content on the internet changes over time, when electronic evidence such as an internet document or a video is used as prior-art disclosure against the patentability of an application, appropriate measures should be taken for collecting, storing and preserving such evidence and making it accessible under suitable conditions for the judiciary, or interested parties such as the applicant, an opponent, their respective representatives or a member of the public. See chapter III.K.3.4.4 and III.W.3. See also T 3071/19.

See also in this chapter III.G.4.3.4c).