Friday, 20 November 2009

Proof of availability the public: what standard?

Some of you may already have read the IPKat's post this morning on the ruling of a Hearing Office of the UK's Intellectual Property Office in Ranger Services Ltd's application, BL O/362/09, 17 November 2009, concerning the status of cited prior art which had been obtained from an internet archive.

Right: it may be prior art now, but when did it start to be so?

The decision raises a matter of interest to patent litigators: the degree of proof required with regard to the date on which internet-held prior art is taken to be made available to the public. The recent European Patent Office guidelines (here), said the applicant in this case, required proof beyond reasonable doubt as to the date on which the cited prior art was made available to the public. The Hearing Officer disagreed:
"While it is relevant and appropriate for me to take note of EPO practice in such matters, it does not bind me in the way that UK law does. The maxim of the English Courts in civil matters is that the correct assessment to be made is on the “balance of probabilities”, whereas in criminal matters, it is one of “proof beyond reasonable doubt”. In this case, the recent EPO note would appear to support that this view, despite Mr Hirsz’s argument to the contrary, and I must therefore decide the issue on “the balance of probabilities”" (para.47).
What is the position in other EPO Members? Do any readers know?

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