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.
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