Pursuant to Art. 54(2) EPC the state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application.
Board of appeal case law has established that the theoretical possibility of having access to information renders it available to the public (T 444/88), whatever the means by which the invention was made accessible, and – in the case of prior use – irrespective of whether there were particular reasons for analysing the product (G 1/92, OJ 1993, 27). This decision supersedes T 93/89 (OJ 1992, 718), T 114/90 and T 62/87 on this point. It is not relevant, as a matter of law, whether on that date a member of the public actually saw the document or knew that it was available (T 381/87, OJ 1990, 213). Particular problems may arise, depending on how the information is made available.