Proving dates can be a difficult task. In the present case, the appellant appeared to have solid arguments: the document under consideration comprised a photograph of a product that was marked “best before” a date that was prior to the priority date of the opposed patent. However, this evidence did not resist the scrutiny of the Board:
[2.1] D24 is a sworn declaration in Spanish by an employee of Nutricia S.R.L. Madrid, Mr Irzo Asensio. As apparent from the English translation D25, Mr Irzo Asensio declares that he has submitted at least one copy of [brochure] D15 to an institution/person without any obligation to secrecy during the period prior to 23 June 1997 (the priority date of the opposed patent).
D24 and D25 were filed at a very late stage of the appeal proceedings […], i.e. eight and three days prior to the date of oral proceedings (OPs) before the board.
[2.2] According to Article 12(2) of the Rules of Procedure of the Boards of Appeal, the statement of the grounds of appeal shall contain the appellant’s complete case. Furthermore, it is established case law of the boards of appeal that late-filed evidence should only very exceptionally be admitted into the proceedings in the appropriate exercise of the board’s discretion under A 114(2), if such new material is prima facie highly relevant in the sense that it can reasonably be expected to change the eventual result and is thus highly likely to prejudice maintenance of the European patent (see T 1002/92 [3]) as an illustration of this case law).
[2.3] In the present case, already during OPs before the opposition division (OD) […], it had been decided that D15 did not form prior art. Consequently, the appellant knew at the latest from that date on that the public availability of D15 had not been sufficiently proven. Therefore, any evidence overcoming this deficiency should have been provided with the statement of grounds of appeal, in accordance with Article 12(2) of the Rules of Procedure of the Boards of Appeal.
[2.4] During OPs before the board, the appellant stated that filing D24/D25 only shortly before the date of OPs was due to difficulties in finding a person that could confirm the public availability of D15. However, this argument is not convincing, because the person who gave the declaration, Mr Irzo Asensio, still is an employee of Nutricia S.R.L., i.e. the company which issued D15. No reasons were given why an inquiry within said company could not have been made earlier.
[2.5] Furthermore, the filing of D24/D25 cannot be considered as a reaction to any of the respondent’s replies or the board’s communication. On the contrary, as has been set out above, the public availability of D15 has already been an issue in the decision under appeal.
[2.6] Thus, the filing of D24 and D25 was not in due time in the sense of A 114(2).
[2.7] With regard to prima facie relevance of D24/D25, the situation is as follows:
[2.7.1] The declaration does not contain any details about the question of who has received copies of D15, but only cites in general terms medical institutions and health professionals. The declaration does also not contain any concrete date at which said copies have been distributed, but only refers in general terms to the time period prior to 23 June 1997. Thus, in the board’s view, the declaration lacks corroboration about the exact circumstances at which the alleged events took place.
[2.7.2] The appellant held the view that the statements in D24/D25 were corroborated by the expiry date “BEST BEFORE 18-06-97” printed on the product depicted in D15, which was prior to the priority date of the opposed patent, and the market authorisation D6 for this product which was issued equally prior to the priority date of the opposed patent.
However, the appellant’s argumentation is not convincing for the following reasons:
The words “BEST BEFORE 18-06-97” are just legible on the photograph of a tube-feeding bag at the top right of the first page of Dl5 (at least on the enlarged view D20 [NB: I have added a red marker]).
This date presumably means 18 June 1997 which is 5 days before the priority date of the patent in suit. However, the date shown on the bag depicted in D15 does not relate directly to the date of D15 as a document. As pointed out by the respondent, it is merely a date printed on the particular bag that was photographed as the date by which the product should be used but there is no evidence as to whether this photograph shows a real product, a prototype or even a dummy product.
Even if the photograph shows a real product from an actual production batch, the significance of the date is very limited in that the only assumption that can be made is that the photograph cannot have been taken before the date on which batches with that “best before” date would have been packaged, but no evidence has been presented as to what that date might have been.
The fact that the photograph could not have been taken before a particular date does not mean that it was taken on or near to that date and it could have been taken at any time thereafter, quite possibly well after the priority date. Similarly, and even more importantly, the brochure D15 including the photograph could have been produced at any time after the photograph was taken.
As regards D6, this document purports to be a marketing authorisation regarding “Pentaset Fibra” (i.e. the product referred to in D15) issued by the Ministry of Health and Consumer Affairs (Ministerio de Sanidad y Consumo) in Spain. However, a marketing authorisation does not prove that anything was ever marketed, and even if this were to be the case, it still cannot possibly provide evidence that brochures apparently relating to the product were part of the state of the art before the priority date of the patent in suit.
[2.7.3] In summary, D24 and D25 cannot be considered to be prima facie highly relevant according to the established case law (see T 1002/92).
[2.8] In view of the above, the board exercised its discretion not to admit D24 and D25 into the proceedings (A 114(2)).
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