"Up to the hilt" and "beyond reasonable doubt" - any difference?

In the EPC case-law, the standard of proof for the public availability of documents or information which are completely under the control of one of the parties (e.g. public prior use by the party) is said to be "up to the hilt". The "hilt" is the part of the sword that shields the hand or is the transition part of the sword from blade to the handle and I wonder who has had the idea to use this martial expression which sounds more like medieval inquisition than like civilized EPO proceedings in well-illuminated rooms. 

In the decision T 2451/13, the board dealt with the public availability of a commercial brochure D16 bearing a "copyright date" 4 years before the filing date. Pictures identical to those of the brochure appeared in another publication. No further evidence that the brochure was indeed distributed and not kept in the drawer of the opponent had been offered. The board summarizes the case-law and concludes that up to the hilt and beyond reasonable doubt are the same thing:

If the publication date of a document originating from an opponent (or a subsidiary thereof) is in dispute, the opponent must prove that date "up to the hilt". The yardstick for this proof is that of "beyond reasonable doubt" rather than "absolute certainty" (point 3.2).

The more detailed reasoning is as follows:

3.2.4 T 472/92 did not specify precisely the conditions to be fulfilled in order for a party to prove its case "up to the hilt". However, when discussing the disputed issues, the board stated that its conclusions were based on "... an extremely high degree of certainty", which is thus clearly the yardstick - rather than "absolute certainty" - for "up-to-the hilt" proof. It is thus evident that the standard of "up to the hilt" does not require absolute certainty but that "an extremely high degree of certainty" suffices.

3.2.5 In subsequent decisions T 97/94, T 55/01 and T 2/09, this standard of proof was consistently interpreted to mean "beyond reasonable doubt":

"According to this decision [T 472/92], where practically all the evidence lies within the power of the opponent, the assessment of probability which normally underlies the boards' opinion must cede to a stricter criterion close to absolute conviction. In other words there should be a degree of certainty which is beyond all reasonable doubt" (T 97/94, point 5.1, insertion in square brackets by the present board).

"It is true that, in cases where only one party has access to information about an alleged public prior use, the case law has tended towards expecting that the public prior use be proved beyond any reasonable doubt ("up to the hilt"), answering the typical questions "What?", "When?", "Where?", "How?" and "To whom?", since the other party was reduced to merely pointing out inconsistencies or gaps in the chain of evidence; see T 472/92, reasons, point 3.1 (OJ EPO 1998, page 161)" (T 55/01, point 4.1).

"However, especially in cases where only one party had access to information about an alleged public prior use, the case law has tended toward expecting that the public prior use be proved beyond any reasonable doubt or "up to the hilt" (see e.g. T 55/01, point 4.1 of the Reasons, and T 472/92, OJ 1998, 161, point 3.1 of the Reasons)" (T 2/09, point 3.2). Also in T 782/92, where a public prior use by the opponent had occurred, the standard of proof of "beyond reasonable doubt" was applied (point 2.2).

Lastly, in decision T 1553/06 (point 6.3.3), which dealt with the public availability of internet disclosures, it was stated that "Contrary to the opponent, the board regards the terms "beyond reasonable doubt" and the more colloquial term "up to the hilt" as being equivalent".

3.2.6 The board agrees with the appellant that the standard "up to the hilt" also applies to the present case. Document D16 originates from a company (Gerber) which is now a subsidiary of the respondent.

Therefore, all the evidence about the publication date of D16 is essentially in the hands of the respondent. It thus has to be examined whether the respondent has proven beyond reasonable doubt that D16 was available to the public before the priority date of the patent.

D16 addresses parents and gives them instructions on how to feed their infants. In view of this, it would be contrary to life experience to assume that D16 was not published but rather kept by Gerber in the drawer for about 4 years, i.e. until at least (after) the priority date of the patent. This is corroborated by D17, which is an advertisement of Gerber in the spring 2002 edition of the journal PediatricBasics. In this advertisement, Gerber gives the same recommendations to parents and, in part, uses the same pictures as in D16. The board is therefore convinced that it is not only more likely than not, but quite clearly beyond reasonable doubt that D16 was published before the priority date of the patent.

Microsoft v i4i just decided

The appeal has been decided today by US Supreme Court. The justices confirm that:

“in asserting patent invalidity as a defense to an infringement action, an alleged infringer must contend with §282 of the Patent Act of 1952 (Act), under which “[a] patent shall be presumed valid” and “[t]he burden of establishing invalidity . . . shall rest on the party asserting” it. Since 1984, the Federal Circuit has read §282 to require a defendant seeking to overcome the presumption to persuade the factfinder of its invalidity defense by clear and convincing evidence”.

Bearing in mind that “Section 282 requires an invalidity defense to be proved by clearand convincing evidence”, “the Court rejects Microsoft’s contention that a defendant need only persuade the jury of a patent invalidity defense by a preponderance of the evidence”.

The justices also reject “Microsoft’s argument that a preponderance standard must at least apply where the evidence before the factfinder was not before the PTO during the examination process”

Reference is also made to the fact that “during the nearly 30 years that the Federal Circuit has interpreted §282 as the Court does today, Congress has often amended §282 and other patent laws, but apparently has never considered any proposal to lower the standard of proof. Indeed, Congress has left the Federal Circuit’s interpretation in place despite ongoing criticism, both from within the Federal Government and without”.

Microsoft Corp. must therefore pay a $290 million to i4i.

US Supreme Court opinion here