The present appeal was filed by the patent proprietor after the Opposition Division (OD) had maintained the opposed patent in amended form.
One of the issues discussed by the Board was the public availability of one of the documents which the OD had considered to be part of the prior art pursuant to A 54(2).
*** Translation of the German original ***
[3.1] The [patent proprietor] held the view that document MF1 was not an advertising booklet (Werbebroschüre) but a product data sheet, so that, according to the case law of the Boards of appeal (T 278/09 and T 804/05) one could not assume that document had been broadly distributed (allgemein verteilt).
According to the case law of the Boards of appeal it is not sufficient to merely weigh the probability of the public availability of an allegedly novelty-destroying product data sheet, the public availability of which is only based on assumptions (see T 278/09 [1.3.1]).
Thus at first it has to be clarified whether document MF1, which had been filed in its original form (and not sealed in stiff foil) during the appeal proceedings, is an advertising brochure or a product data sheet.
[3.2] The Board is of the opinion that a product data sheet provides information on newly developed or improved products rather than on the marketing of a product; therefore, its information content is different from what is found in an advertising brochure (cf. also T 278/09 [1.3.1]).
The [Board] agrees with the [opponent] in that document MF1 does not contain any detailed technical data such as the indication of dimensions, distances and gaps allowing the installation of or the conversion to an automatic fifth wheel, but only technical information of a general nature. Like the [opponent], the Board understands the indication “ECHANGE SEMI = 1 Minute!” on the front sheet of MF1 to be a clear further indication that the document MF1 merely contains advertising information for potential customers. This is also corroborated by the images and the indication of the contact details of the Serma company. Thus the Board, very much like the OD, comes to the conclusion that document MF1 is an advertising brochure.
[3.3] As the present situation concerns an advertising brochure, the OD was justified in applying decision T 804/05 which also dealt with the public avaiability of an advertising brochure. In this decision (see point  of the reasons) decision T 743/89 was considered to be relevant for deciding when the advertising brochure was made available to the public. As far as the standard of proof for the assessment of evidence is concerned, T 743/89 applied decision T 381/87, in which the competent Board had decided that in relation to an issue of fact when a document was first made available to the public, [the EPO] had to decide what was “more likely than not” to have happened having regard to the available evidence, on the balance of probabilities, and that this was the normal standard of proof in proceedings of this nature (see point [4.4] of the reasons). Therefore the Board is of the opinion that in the present case the OD, based on decision T 804/05, in the end has applied the principles of decision T 381/87 and thus applied the balance of probabilities. In decision T 750/94, which has also been cited by the [patent proprietor], there is also a reference to decision T 381/87, followed by this statement:
“When an issue of fact is being examined and decided by the EPO on the balance of probabilities, the more serious the issue the more convincing must the evidence be to support it. If a decision upon such an issue may result in refusal or revocation of a European patent, for example in a case concerning alleged prior publication or prior use, the available evidence in relation to that issue must be very critically and strictly examined. A European patent should not be refused or revoked unless the grounds for refusal or revocation (that is, the legal and factual reasons) are fully and properly proved.” (see headnote 1 and point  of the reasons).
There is no indication in the reasons of the impugned decision that the OD has not critically and strictly examined the available evidence.
For the above reasons [the Board] cannot endorse [the assertion of] the [patent proprietor] according to which the OD has not applied the principles developed in the case law of the Boards of appeal in its decision.
[3.4] The OD also provided reasons why, based on the indications contained in the advertising brochure, the original of which had been submitted to it, it has reached the understanding that this brochure had to be considered to have been made available to the public before October 16, 1996. The Board shares its opinion that in particular the additional indication “A PARTIR DU 16 OCTOBRE 1996 FUTUR NUMERO: INDICATIF (04)” [as of October 16, 1996, future [telephone] number: dialling code (04)] it was possible to assume that the advertising brochure was distributed before October 16, 1996, or at least shortly after that date and, therefore, long before the priority date of the patent in suit (May 14, 2004). Moreover, the indication “Réf. 10 95” on the left margin of MF1 appears to be the date of printing rather than a product number, because October 1995 is one year before the above date of October 16, 1996, which means that a printing date “October 1995” fits into the timing and is, in the opinion of the Board, very likely. As document MF1 makes clear that this advertising brochure was made available to the public before the priority date of the patent in suit, the evidence MF4 to MF7. This is all the more true because there is nothing in this evidence which would contradict the above conclusion of the Board. Therefore, it was not necessary to hear the witness, which had been offered.
[3.5] For the above reasons the Board sees no good reason to criticize the decision of the OD according to which document MF1 was part of the state of the art within the meaning of A 54(2) EPC 1973.
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