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EPO: A lower standard of proof for internet disclosures

Disclosures on the internet may form state of the art before the EPO under Article 54(2) EPC. Internet disclosures are a particularly useful source of information for inventions in telecommunications and computer-implemented inventions. However, internet disclosures have proven difficult to handle, given the ease with which the internet can be updated and changed, and an inherent unreliability around the dates on which information was made available.

In recent years, the EPO has issued guidance for examiners on internet disclosures, on issues such as establishing publication dates, standards of proof, the burden of proof, and what to do if publication dates are unreliable.

In one of the earliest cases concerning internet disclosures (T1134/06), the Board of Appeal decided that the question of whether an internet disclosure was state of the art should be proven "beyond any reasonable doubt". This is similar to the level of proof required in instances of alleged public prior use – that is, questions of when, what and under which circumstances a disclosure was made available to the public should be addressed. Decision T1134/06 therefore set a high standard of proof for use of internet disclosures as state of the art before the EPO.

Since T1134/06, later decisions of the Boards of Appeal have taken a more lenient approach. Decisions such as T990/09 and T2339/09 have applied the same standard for internet disclosures as disclosures by other means; namely the "balance of probabilities". A recent decision (T286/10) has also taken this approach.

It therefore seems that the standard of proof required to establish internet disclosures as state of the art is not as high as in T1134/06. If this trend is applied by EPO examiners, it would seem easier for internet disclosures to be cited against European patents and patent applications.

Edward J Farrington

Inspicos A/S

Kogle Allé 2
DK-2970 Hoersholm
Copenhagen, Denmark
Tel: +45 7070 2422
Fax: +45 7070 2423



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