CLR III G 4.2.3 and internet publications

In 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 note book 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. (See also, with respect to a diploma thesis allegedly disclosed during an oral presentation, T 1057/09).

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.

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 ( had become publicly available. It applied the usual standard of proof on the balance of probabilities (more recently, T 2227/11).

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.

For decisions on internet disclosures, see aforementioned T 286/10, in which the board rejected the conclusion reached in T 1134/06 that digital libraries on the internet are inherently unreliable (see chapters III.G.4.3.1 and III.G.4.3.3 below, dealing with standards of proof), but also T 1469/10 and Chapter I.C.3.2.3 "Internet disclosures" and I.C.3.5.2c) "Internet – proof of the date of availability". Lastly, see T 1553/06 (point 5 of the Reasons, pages 41 to 43) and T 2/09 (point 3.2 of the Reasons, pages 53 to 56), both exceptional in that they were test cases (N.B. both these decisions preceded T 286/10).

21 references found.

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Offical Journal of the EPO

Case Law Book: I Patentability

Case Law Book: III Amendments

Case Law of the Enlarged Board

General Case Law