T 1553/06 (Public availability of documents on the World Wide Web/PHILIPS) of 12.3.2012

European Case Law Identifier: ECLI:EP:BA:2012:T155306.20120312
Date of decision: 12 March 2012
Case number: T 1553/06
Application number: 00200326.7
IPC class: H04N 9/16
Language of proceedings: EN
Distribution: B
Download and more information:
Decision text in EN (PDF, 146.854K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: Display device
Applicant name: Koninklijke Philips Electronics N.V.
Opponent name: DSM IP Assets B.V.
Board: 3.5.04
Headnote: 1. An opposition filed within the framework of a test case is not inadmissible for that sole reason, provided that the prosecution of the proceedings thereby instituted is contentious because the parties defend mainly opposing positions. (See point 1.3)
2. The mere theoretical possibility of having access to a means of disclosure does not make it become available to the public within the meaning of Article 54(2) EPC 1973. What is required, rather, is a practical possibility of having access, i.e. "direct and unambiguous access" to the means of disclosure for at least one member of the public. (See point 6.5.4)
3. In the case of a document stored on the World Wide Web which can only be accessed by guessing a Uniform Resource Locator (URL) not made available to the public, "direct and unambiguous access" to the document is possible in exceptional cases only, i.e. where the URL is so straightforward, or so predictable, that it can readily be guessed. (See points 6.6 and 8.3)
4. The fact that a document stored on the World Wide Web could be found by entering keywords in a public web search engine before the priority or filing date of the patent or patent application is not always sufficient for reaching the conclusion that "direct and unambiguous access" to the document was possible.
Where all the conditions set out in the following test are met, it can be safely concluded that a document stored on the World Wide Web was made available to the public:
If, before the filing or priority date of the patent or patent application, a document stored on the World Wide Web and accessible via a specific URL
(1) could be found with the help of a public web search engine by using one or more keywords all related to the essence of the content of that document and
(2) remained accessible at that URL for a period of time long enough for a member of the public, i.e. someone under no obligation to keep the content of the document secret, to have direct and unambiguous access to the document,
then the document was made available to the public in the sense of Article 54(2) EPC 1973.
If any of conditions (1) and (2) is not met, the above test does not permit to conclude whether or not the document in question was made available to the public.
(See point 6.7.3)
Relevant legal provisions:
Rules of procedure of the Boards of Appeal Art 13(1)
European Patent Convention 1973 Art 54(2)
European Patent Convention 1973 Art 99(1)
European Patent Convention 1973 Art 100(a)
European Patent Convention 1973 R 55(a)
European Patent Convention 1973 R 56(1)
Keywords: Admissibility of a contrived opposition test case (yes)
Novelty: the theoretical possibility of access to a means of disclosure is not sufficient for public availability; the practical possibility of having access, i.e. "direct and unambiguous access", is required
Novelty: public availability of a document stored on the World Wide Web and accessible only by guessing its URL
Novelty: public availability of a document stored on the World Wide Web and indexed in a public web search engine
Catchwords:

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Cited decisions:
G 0002/88
G 0009/91
G 0010/91
G 0001/92
G 0009/93
G 0003/97
J 0020/85
T 0084/83
T 0328/87
T 0381/87
T 0444/88
T 0842/91
T 0472/92
T 0952/92
T 0301/94
T 0165/96
T 0314/99
T 1127/00
T 0055/01
T 0186/01
T 1081/01
T 1134/06
T 1875/06
T 1309/07
T 0002/09
Citing decisions:
T 0002/09
T 1961/13
T 2451/13

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