GL G IV 7.3.1 Cases of oral description

The state of the art is made available to the public by oral description when facts are unconditionally brought to the knowledge of members of the public, such as in the course of a conversation or a lecture or by means of radio, television or sound reproduction equipment (tapes and records).[Art. 54(2); ]

The subject of the patent concerns a process for the manufacture of a product. As proof that this process had been made available to the public by use, a similar already known product was asserted to have been produced by the process claimed. However, it could not be clearly ascertained, even after an exhaustive examination, by which process it had been produced.

GL G IV 7.2.4 Example of the accessibility of objects used

A press for producing light building (hard fibre) boards was installed in a factory shed. Although the door bore the notice "Unauthorised persons not admitted", customers (in particular dealers in building materials and clients who were interested in purchasing light building boards) were given the opportunity of seeing the press although no form of demonstration or explanation was given. An obligation to secrecy was not imposed as, according to witnesses, the company did not consider such visitors as a possible source of competition.

GL G IV 7.2.3 Use on non-public property

As a general rule, use on non-public property, for example in factories and barracks, is not considered as use made available to the public, because company employees and soldiers are usually bound to secrecy, save in cases where the objects or processes used are exhibited, explained or shown to the public in such places, or where specialists not bound to secrecy are able to recognise their essential features from the outside.

GL G IV 7.2.2 Agreement on secrecy

The basic principle to be adopted is that subject-matter has not been made available to the public by use or in any other way if there is an express or tacit agreement on secrecy which has not been broken.

In order to establish whether there is a tacit agreement, the division must consider the particular circumstances of the case especially whether one or more parties involved in the prior use had an objectively recognisable interest in maintaining secrecy.

GL G IV 7.2.1 General principles

Subject-matter is regarded as made available to the public by use or in any other way if, at the relevant date, it was possible for members of the public to gain knowledge of the subject-matter and there was no bar of confidentiality restricting the use or dissemination of such knowledge (see also G‑IV, 1 with reference to written descriptions).

GL G IV 7.2 Matters to be determined by the division as regards prior use

When dealing with an allegation that an object or process has been used in such a way that it is comprised in the state of the art (prior use), the division will have to determine the following details:

(i)the date on which the alleged use occurred, i.e. whether there was any instance of use before the relevant date (prior use);

GL G IV 7.1 Types of use and instances of state of the art made available in any other way

Use may be constituted by producing, offering, marketing or otherwise exploiting a product, or by offering or marketing a process or its application or by applying the process.

GL G IV 7 State of the art made available to the public "by means of a written or oral description, by use, or in any other way"

7.1 Types of use and instances of state of the art made available in any other way

7.2 Matters to be determined by the division as regards prior use

7.3 State of the art made available by means of oral description

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

GL G IV 7.3.1 Cases of oral description

GL G IV 7.3 State of the art made available by means of oral description

GL G IV 7.2.5 Example of the inaccessibility of a process

GL G IV 7.2.4 Example of the accessibility of objects used

GL G IV 7.2.3 Use on non-public property

GL G IV 7.2.2 Agreement on secrecy

GL G IV 7.2.1 General principles

GL G IV 7.2 Matters to be determined by the division as regards prior use

GL G IV 7.1 Types of use and instances of state of the art made available in any other way

GL G IV 7 State of the art made available to the public "by means of a written or oral description, by use, or in any other way"

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