This opposition appeal decision contains a statement on the availability to the public of a printed document.
The patent proprietor pointed out that documents A2, A5, F2, F4, and F7 showed that the skilled person was able to measure the pH value under certain conditions.
*** Translation of the French original ***
[4.2.1] The [patent proprietor] referred to document A2
- page 17 of which teaches how to use a LiCl solution in ethanol as an alternative electrolyte in electrodes to be used in non-acqueous media, and
- page 36 of which discloses an electrode containing such an electrolyte.
Document A2 is a catalogue of the Metrohm company that is dated on its page 2 as follows:
Even if one may presume that this document had been printed in February 1999, there is no indication that this catalogue or the above mentioned electrode have been made available to the public before the date of filing of the patent-in-suit, i.e. March 20, 1999.
Therefore, document A2 cannot support the argument of the patent proprietor.
Although it does not explicitly say so, the Board appears to consider that there was an implicit confidentiality agreement between the print office and the Metrohm company.
Should you wish to download the whole decision (in French), just click here.
The file wrapper can be found here.
5 comments:
It is interesting to see that the availability to the public with regard to the Methrom catalogue has been put into question only during oral proceedings before the Board (it seems from the decision that this argument had apparently not even been raised by the opponent). The patentee had then no chance to provide additional evidence proving that this document had indeed been made available to the public prior to the relevant date.
Sometimes one wonders..... I have seen oppositions based on B-documents that were published after the priority date of the contested patent. Nobody made a remark about this until the case came to appeal and the board drew the parties' attention to it. I find this quite amazing because
-how can one attack a patent on the basis of documents that were not publicly available at the relevant date?
- how can the patent proprietor miss this what for me would be the first line of defence?
- how can the opposition division not check if documents upon which an opposition is based are publicly availabe at the relevant date?
Well, sh… happens, as a poet said.
Let him who never fails cast the first stone.
But so many? Parties and OD? And not just one instance, I have seen several of this kind (each in a bit different form), but basically citing unpublished documents and nobody seems to care?
A beloved quote comes to my mind:
“It is an experience common to all men to find that, on any special occasion … everything that can go wrong will go wrong. Whether we must attribute this to the malignity of matter or to the total depravity of inanimate things, whether the exciting cause is hurry, worry, or what not, the fact remains.”
Nevil Maskelyne (The Art in Magic, 1908)
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