In this case the Board had to review the conclusion of the Opposition Division (OD) that the alleged prior use had not been made available to the public.
This alleged prior public use was part of the “Colorado project” in which Porsche and Volkswagen jointly developed their all-terrain vehicles Cayenne and Touareg. In the framework of this project the Autoliv company had transferred data to the J&S company (i.e. the opponent), which used the data to modify an all-metal deflector (Ganzmetallumlenker) for a seat-belt so that it would fit into a VW Touareg.
*** Translation of the German original ***
 The [opponent] has attacked the auxiliary request on the ground of lack of novelty over the alleged prior public use E6.
[4.1] The public availability (Offenkundigkeit) of the prior use (E6) cited by the [opponent] during the opposition proceedings has not been proven. Thus E6 is not state of the art within the meaning of A 54(2).
[4.2] The [opponent] explains that there was no implicit secrecy agreement because such an agreement was only concluded for strategically important projects.
The Board does not follow this reasoning and essentially endorses the opinion of the OD according to which the Colorado Project K40 all-metal deflector (cf. E6) was a development partnership of the companies VW, Porsche, Autoliv and J&S. It is part of the customs of the automotive industry that such developments that refer to concrete vehicle projects are subject to an implicit [duty to observe] secrecy. Thus the question of whether the declaration of secrecy made by the collaborators of the Autoliv company when they entered the VW premises also obliged these collaborators to secrecy with respect to the objects presented by J&S on the VW premises.
Also, the Board is of the opinion that the extent of such a project as such does not allow to draw conclusions on the question that is to be answered here, i.e. public availability. Therefore, the statement of the [opponent] according to which the project “All-metal deflector Colorado” corresponded to a mere adaptation of an existing deflection fitting by J&S without any strategic importance, is not decisive.
[4.3] The [opponent] further explains that the cover and the adaptor as shown on page 13 of E6 had not been part of the Colorado project; the project only concerned the all-metal deflector. J&S had developed the cover and the adaptor as an add-on, without order or payment. Thus this part of the presentation of March 20, 2003, could not be covered by any [duty to observe] secrecy. VW, Porsche and Autoliv were potential customers of J&S for the one-part cover and the adaptor.
The Board does not follow this reasoning. There are no clear indications that allow to see that subsequent to the presentation of pages 1 to 12 of E6 by J&S on March 20, 2003, the implicit duty to observe secrecy […] had come to an end. Page 13 is part of the assembled document (Konvolut) “Implementation Study All-Metal Deflector in the Colorado Set K40” the pages of which are consecutively numbered, which, according to the [opponent] had been presented on the VW premises on March 20, 2003. The objects shown on page 13 are vehicle specific, too, and [their development] was triggered by the Colorado project for an all-metal deflector. The Board is of the opinion that the arguments of the [opponent], according to which there was neither an order nor a payment for this project, do not constitute criteria for the existence or absence of a duty to observe secrecy. Even if it was true that there was no order for the one-part implementation of the cover and the adaptor, such an over-achievement (Übererfüllung) of an order is customary in order to convince a client of the high motivation and performance of the contractor. This does not mean, however, that there was no duty to observe secrecy for this part, and there is no indication that the nature oft he presentation had changed between the projection of page 12 and the projection of page 13 of E6. Moreover, the Board is of the opinion that it is not relevant whether the draft on page 13 was finally realized. At the time of the presentation page 13 of E6 still was an integral part of the project for which J&S had been awarded a contract.
[4.4] Furthermore, the Board is of the opinion that the argument of the [opponent] according to which the very fact that Autoliv had filed an application for IP rights (Schutzrecht) for a similar object subsequent to the presentation of the all-metal deflector on March 20, 2003, proved that the presentation could not have been confidential, does not prove anything. It is customary to keep [information] confidential until an application for IP rights has been filed.
Also, the decision T 292/93 invoked by the [opponent] is not relevant. The facts of that case concern a demonstration for potential customers on the premises of a company affiliated with the opponent. Both the opponent and the company affiliated to it were interested in presenting the object disputed in T 292/93 to potential customers. In the present case, however, the presentation of March 20, 2003, was part of a common vehicle project.
For the above reasons the Board is of the opinion that there was no prior public use, because the presentation according to E6 has not been made publicly available.
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