In T 1168/09 two prior uses were alleged: the supply of 170 ESG 400 control units and the supply of 111 143 ESG 300/600 control units. No information had been submitted with regard to the conditions of supply and, in particular, as to whether or not confidentiality had been agreed. The board therefore investigated whether, in the light of the business relationship between the supplier and the customer, it had to be presumed that an obligation to maintain secrecy had been tacitly agreed. A tacit obligation to maintain secrecy could be presumed, for instance, where business partners had a shared interest in confidentiality. However, such an interest could only be presumed until the parts had been supplied for serial production because, from then on, the parts were destined to be fitted in cars for sale and so made available to the public. In other words, a shared interest in confidentiality could no longer be presumed once parts had been delivered for serial production (see T 1512/06). In the case at hand, the board found that the large number of control units supplied suggested that they had not been test units. It therefore held that they had been publicly available.

In T 1309/07 the board ruled that it was clear from the file that 17 520 combustion-engine pistons of a certain type had been supplied to Renault before the priority date. The question was whether, at the time of delivery, a tacit secrecy agreement had applied. In view of the large quantity involved, and the fact that pistons of this type were offered in a pre-published spare-parts catalogue, the board took the view that they had been supplied not for test purposes but for normal series production, so from that point onwards no such agreement could have existed.