In this opposition appeal case the Board among other things had to decide on whether certain documents qualified as A 54(2) prior art.
[2.3.1] The [patent proprietor] contended […] that documents D1, D3, and D14 might not be considered as prior art under A 54(2), as the evidence on file (such as the minutes of the respective 3GPP meetings, printouts of the 3GPP’s FTP directories, and printouts of email distributions) was insufficient to justify the conclusion that the respective publication dates of those documents was ahead of the filing date of the patent. In particular, the “last modified date” field indicated in the FTP directories did not provide any evidential value as to the actual publication date of the documents, contrary to the finding in the decision under appeal in relation to D1 and D3 […].
[2.3.2] As regards the publication dates of 3GPP meeting contributions in general, the board notes that the corresponding FAQ page of the official 3GPP web site (http://www.3gpp.org/FAQ#outil_sommaire_63) says:
“Meeting contributions (‘TDocs’) are uploaded to the public file server shortly before, or during, or shortly after the meeting at which they were discussed (or intended to be discussed). The timestamp of the file can be relied upon as a precise indication of the moment of upload. TDocs created very shortly before or during a meeting may not be uploaded until after the meeting, but will have been made available locally to the participants during the meeting. The timestamp of the Word (or whatever) file within the containing Zip file is a good indication of the earliest moment that the document could have been available. However, some authors will circulate draft or final copies of their TDocs on the relevant group’s email exploder some days or even weeks prior to this time. This would be revealed by an examination of the exploder’s archive.”
From this, the board understands that the respective dates (“timestamps”) indicated on the 3GPP document lists reliably correspond to the dates on which a certain document was uploaded to the 3GPP file server and thus was available on the server to be accessed by the public. Further, in case of doubt, the email distributions may be checked to reveal the actual publication date. Therefore, the board holds that the publication dates indicated on documents D1, D3, and D14 published by the ETSI 3GPP organisation, which is regarded as a reputable standardisation body having clear and reliable rules for their publications (see the cited FAQ page information above), can be considered to have a high probative value and thus may serve as prima-facie evidence that those documents and their contents were published on the date indicated.
[2.3.3] Accordingly, the board regards the above documents as having been published before the filing date of the patent in suit and thus as representing state of the art under A 54(2). It is also noted that the above reasoning, which had been communicated as preliminary opinion of the board in its communication under Article 15(1) RPBA (cf. point V above), was not contested by any party at the oral proceedings (OPs) before the board.
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The file wrapper can be found here.