The Appellant argued that the publication date of D11 had not been reliably established by the ED.
In the decision under appeal, the ED referred to a “server date” mentioned in D11 and considered said server date as an upload date. However, the Appellant found that the ED had failed to explain the meaning of the term "server date" and argued that, even if said date was considered as the "upload date" of D11, the reasons given by the ED were completely silent about when D11 was made available for download by anyone.
The Appellant argued further that, even if D11 was made available, it could still not be determined that D11 "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", citing from T 1553/06, Headnote 4(1).
Furthermore, the ED had referred to a list of written contributions, but according to the Appellant, the content of the written contributions could not be reliably determined based on the list alone, because it was not apparent whether the referenced list was made available to the public prior to the effective date of the application. For example, there were various inconsistencies between the dates borne by D11 and the date attributed to D11 referred to by the ED.
The Board considered the Appellant’s arguments to amount to the assertion that the ED had failed to establish beyond reasonable doubt the exact earliest date of public availability of the cited documents.
The Board: For assessing whether or not documents downloaded from the Internet or standard preparatory documents belong to the state of the art, establishing beyond reasonable doubt the exact earliest date of public availability is no longer the applicable standard of proof required.
The Board found their opinion to be in line with established case law and referred to T 884/18, Reasons 6. Said decision says under 6.1: “As variously stated in case law, the appropriate standard of proof for Internet citations is the "balance of probabilities" and not "beyond reasonable doubt”. The conclusions reached in the earlier decision T1134/06 that the stricter standard of proof "beyond reasonable doubt" had to be applied to Internet disclosures has been superseded by more recent case law, see Case Law of the Boards of Appeal, 9th edition 2019 (CLBA), I.C.3.2.3.c)(i)".
In view of the available evidence and arguments, the Board was sufficiently convinced that D11 was indeed made available by file upload to a public 3GPP server before the 3GPP TSG-SA2 Meeting #63 took place, and, at any rate, well before the effective filing date of 14 March 2008.
The Board considered D11 to be prior art under Article 54(2) EPC and found none of the claims of the requests inventive over D11 or clear. In the end, the Board dismissed the appeal.
Summary written by the NLO EPO Case Law Team