Wednesday, 23 September 2009

T 355/07 - Dura Lex Sed Lex

[...] The patent validly claims the priority date of 27 November 1998.

Document D2 is a German utility model having 26 November 1998 as its date of entry in the register of utility models of the German Patent and Trademark Office (DPMA), i.e. the day before the date of filing of the EP application. The date of entry corresponds to the date on which a list (typically containing several hundred entries and indicating the IPC class and the DPMA file number of German utility models for each entry) is laid open for inspection at the premises of the DPMA. A member of the public is allowed to inspect any file from that list as of said date.

[NB : The patentee argued that it was practically impossible for a member of the public to get knowledge of the content of document D2 on said day, because (i) the list contained several hundred entries, (ii) the list merely indicated the IPC class and the DPMA file number of German utility models, and (iii) the files itself could only be inspected upon request at another branch office of the DPMA at Cincinattistr. 64 in Munich. Moreover, it was not proved that a member of the public actually inspected the file corresponding to document D2 on that very day. According to the patentee, D2 was not therefore state of the art for the patent in suit.]

The theoretical possibility of having access on 26 November 1998 to the information contained in document D2 renders it available to the public as of said date, it is not relevant whether on that date a member of the public actually inspected the file. Consequently, document D2 is prior art within the meaning of A 54(2). [2]

To read the whole decision, click here. 

This is one of those cases where the application of the legal fiction (if one may properly so say) underlying A 54(2) may appear harsh. Although very unlikely, there was a theoretical possibility that a member of the public might have had access to the document. And that is all that is needed to make the document “available” to the public.

Please note the dates involved. I am always amazed when reality looks very much like paper D.  8-)

NB : I just discovered that this decision has also been discussed here.