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.
3 comments:
We have seen a quite similar reasoning in a recent decision of the Federal Patent Court in Switzerland (O2013_006): Absolute certainty is not required. Rather, it is sufficient if no reasonable doubt remains, or any such doubt appears neglectable.
A more detailed review of this decision is available here: http://www.patentlitigation.ch/matter-fixed-patent-maintained-in-amended-form/
"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."
it was probably Herr or Frau Kitzmantel as the rapporteur in T0472/92.
Does not this debate over standards of proof reveal a gap of understanding between lawyers of the Romano/German system and the English common law part of the world?
I mean, in criminal prosecutions we need proof "beyond reasonable doubt" whereas in ordinary civil disputes we need a "more likely than not" standard of proof.
I assert that, just like in obviousness, where the EPO's Problem and Solution Approach is big enough to cope with any case, so the "more likely than not" standard is fit for any civil dispute, including one in which the dispute is about whether Opponent's use put the claimed subject matter into the state of the art before the priority date.
DG3's English lawyer Gerald Paterson saw it right, in the book he wrote about oppositions at the EPO, back in the days when the EPO was still young. What he wrote was that the amount of evidence you need to prove any given proposition (say, the Earth is Flat) is "more likely than not" varies with the degree of unlikeliness of the proposition itself. You will need an awful lot of evidence to show it "more likely than not" that the Earth is Flat.
Now, if you cry "But I was using that already" you will be greeted sceptically, because as we know, that's always what our client's engineers and scientists, affronted by the patent, are inclined to assert. And so, in front of an experienced and sceptical EPO Tribunal, you won't have proved it "more likely than not" until you have proved it "up to the hilt". It lies within your power to prove it up to the hilt and if you can't do that much, well then it suggests to the sceptical Tribunal that the prior use more likely did not take place than that it did.
But that is very different from a criminal "beyond reasonable doubt" standard. Or ought to be!
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