b)
Public prior use occurred 

In T 84/83 a new type of wide-angle mirror had been fitted to a motor vehicle for demonstration purposes for at least six months. The board held this to constitute prior public use as, during such a time, the vehicle could be expected to be parked on public highways and hence open to inspection by third parties.

T 1416/10 concerned the public prior use of a washing machine manufactured and sold by the patent proprietor under model number WD-R100C. The board noted that, although there was no proof on file that the specific washing machine had indeed been available to the public prior to the relevant date of the patent in suit, notwithstanding that it was highly unlikely that this specific machine had remained with the manufacturer for more than one month before being delivered for sale to a distributor, the evidence submitted by the opponent allowed the conclusion to be drawn beyond any reasonable doubt that washing machines with the model number WD-R100C had been publicly available to the distributors for public sale prior to the relevant date of the patent in suit.

In T 1682/09 the appellant alleged public prior use of an assembly of a weighing system. The board observed that, according to the established case law, the sale of an apparatus is, in the absence of any special circumstance, sufficient to render it available to the public. In the case at issue, the assembly had only been leased; it was not owned by the company. The board however found that mounting the assembly at the company's premises and the subsequent conventional start-up, training and maintenance procedures of the assembly at the same premises had rendered its features available to the company, which had constituted a member of the public at that time.

In T 2440/12 the invention was a method to be performed by a computer. The board came to the conclusion that prior use of a software product in the form of sales made the method implemented by the software part of the state of the art since, in principle, the skilled person could have executed the software line-by-line on a computer, and, in doing so, would have not only carried out the method, but also gained knowledge of the method steps performed by the computer. The board concurred with the appellant that even a different "disclosure" of the method, as could be obtained by executing it on a computer line-by-line without infringing copyright protection, was sufficient to take away the novelty of the method as claimed. Hence, the subject-matter of claim 1 was not new following the prior use of a software product which undisputedly embodied the claimed subject-matter.

In T 2210/12, the appellant (patent proprietor) contended that the installation of machinery on Volkswagen's private factory premises could not result in its having been made publicly available (see, in relation to shipyards, T 245/88 and T 901/95). The board, however, considered it established that the machinery's delivery had not been subject to any duty of confidentiality. Since Volkswagen itself already counted as part of the public, it made no difference whether or not third parties had access to its premises. See also T 2273/11.

In T 1647/15, in which one of the parties objected to the language the opposition division's chairman had used to silence its representative, the board, having dealt with this objection itself and taken into account how long the proceedings had already lasted, decided not to remit the case to the opposition division and ruled that the alleged prior use (sale of three types of Scheuerle trailer – photographs produced) had been established. As regards the photos, the patent proprietor hinted at the possibility that the trailers might have been modified since the priority date of the patent. However, taking common wisdom into account and considering that the claimed subject-matter referred to the basic design of the trailer, it seemed very unlikely that these very special vehicles had undergone significant design modifications impacting features of the claim.

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