GL G IV 7.5.3.2 Other "print equivalent" publications

Many sources other than scientific publishers are generally deemed to provide reliable publication dates. These include for example publishers of newspapers or periodicals, or television or radio stations.

GL G IV 7.5.3.1 Technical journals

Of particular importance for examiners are online technical journals from scientific publishers (e.g. IEEE, Springer, Derwent). The reliability of these journals is the same as that of traditional paper journals, i.e. very high.

It should be noted that the internet publication of a particular issue of a journal may be earlier than the date of publication of the corresponding paper version.

GL G IV 7.5.3 Burden of proof

It is a general principle that, when raising objections, the burden of proof lies initially with the examiner. This means that objections must be reasoned and substantiated, and must show that, on the balance of probabilities, the objection is well-founded. If this is done, it is then up to the applicant to prove otherwise – the burden of proof shifts to the applicant.

If an applicant provides reasons for questioning the alleged publication date of an internet disclosure, the examiner will have to take these reasons into account.

GL G IV 7.5.2 Standard of proof

When an internet document is cited against an application or patent, the same facts are to be established as for any other piece of evidence, including standard paper publications (see G‑IV, 1). This evaluation is made according to the principle of "free evaluation of evidence" (see T 482/89 and T 750/94).

GL G IV 7.5.1 Establishing the publication date

Establishing a publication date has two aspects. It must be assessed separately whether a given date is indicated correctly and whether the content in question was indeed made available to the public as of that date.

The nature of the internet can make it difficult to establish the actual date on which information was made available to the public: for instance, not all web pages mention when they were published.

GL G IV 7.5 Internet disclosures

As a matter of principle, disclosures on the internet form part of the state of the art according to Art. 54(2). Information disclosed on the internet or in online databases is considered to be publicly available as of the date the information was publicly posted. Internet websites often contain highly relevant technical information. Certain information may even be available only on the internet from such websites.

GL G IV 7.4 State of the art made available to the public in writing and/or by any other means

For this state of the art, details equivalent to those defined in G‑IV, 7.3.3 have to be determined if they are not clear from the written or other disclosure itself or if they are contested by a party.

If information is made available by means of a written description and use or by means of a written and oral description, but only the use or the oral description is made available before the relevant date, then in accordance with G‑IV, 1, the subsequently published

GL G IV 7.3.4 Standard of proof

Unlike a written document, the contents of which are fixed and can be read again and again, an oral presentation is ephemeral. Therefore, the standard of proof for ascertaining the content of an oral disclosure is high. Whether the amount of evidence provided is sufficient to establish the content of the oral disclosure based on this standard of proof has to be evaluated on a case-by-case basis and depends on the quality of the evidence in each case.

GL G IV 7.3.3 Matters to be determined by the division in cases of oral description

Once again, in such cases the following details will have to be determined:

(i)when the oral description took place;

(ii)what was described orally; and

GL G IV 7.3.2 Non-prejudicial oral description

The state of the art will not be affected by oral descriptions made by and to persons who were bound to, and preserved, secrecy, nor by an oral disclosure which was made no earlier than six months before the filing of the European patent application and which derives directly or indirectly from an evident abuse in relation to the applicant or their legal predecessor. In determining whether evident abuse has occurred, note G‑V, 3.[Art. 55(1)(a); ]