Saturday, 16 April 2011

T 2348/08 – Copyright and Secrecy

The prohibition of reproducing a document can it prevent the document from being considered available to the public?

*** Translated from the German ***

[4.1] The [patent proprietor] asserted that document E6b had not been made available to the public.

E6b consists in operating instructions for a Laser sintering machine of the EOSINT M 250 Xtended type. On page 2 of the operating instructions the edition is indicated as 08.99 together with © 2000. In addition, in response to the sales agreement with Nolato Mobile […], the [opponent] has sent a letter on June 13, 2000, wherein the operating instructions in English (E6b) are referred to as annex. Therefore, it is credible that the operating instructions have been made available to the public before the filing date of the opposed patent (November 7, 2002).

[4.2] The [patent proprietor] further explained that, as a consequence of the legal notice on page 1.2 of E6b, the operating instructions were not to be disclosed and, therefore, had not been made accessible to the public.

The first paragraph of page 1.2 of E6b reads:
“The operating instructions must not be electronically or mechanically reproduced … without the express written approval of EOS GmbH Electro Optical Systems”.
The Board follows the opinion of the [opponent] and holds that this paragraph is a usual copyright statement. It does not imply a secrecy agreement, so that the whole content E6b is not to be considered confidential.

I wonder whether oral transmission is covered by the prohibition of mechancical reproduction. ;-)

To read the whole decision (in German), click here.

The file wrapper can be found here.


Anonymous said...

I'm sorry not to be able to read the whole decision (Mein Deutsch ist sehr schlecht...).
As far as I understand, the information is included in a user's manual of a machine sold before the priority date.
Why did the board not follow the same reasoning as T50/02 : a prior art has to be considered relevant as soon as it is offered for sale, even if the client agrees to keep information confindential and to use it for private purpose. The board considered that any interested person had access to the information before the filing date...
It solves the copyright issue. No?

Myshkin said...

I suppose it would have been possible to apply T 50/02, but then it would have to be shown that the Laser sintering machine had been offered for sale to any arbitrary/interested party before the filing date. Although this was likely the case, the decision seems to be silent on this point.

The copyright issue is in fact not an issue. The copyright holder of the operating instructions cannot restrict dissemination of its subject-matter, but only of its concrete expression. So the recipient of the operating instructions was free to divulge the technical content of the instructions to any interested party.

So in this case the actual sale of the operating instructions to a person not bound by an obligation to maintain secrecy made the information available to the public.

oliver said...

Yes, I would say that T 50/02 is quite to the point. But, of course, the Boards are not bound by T 50/02, where, incidentally, the deciding Board, did not feel bound by T 300/86.

Anonymous said...

One can also understand why the BoA felt it was necessary to crush the ridiculous argument that copyrighted material is not made available to the public...