T 0526/12 - Prior art and proof

T 0526/12
For the decision, click here. [C] (online 19.10.2015)



Key points

• The issue in this case is the availability to the public of D1 at its alleged publication date in 1997 D1 is:
  "FIORE CAROLYN: "DragonDictate 2.0 voice recognition software", INTERNET CITATION, [Online] 1997, Retrieved from the Internet: URL:http://www.htctu.fhda.edu/trainings/manuals/contributions/carolyn/Drago.pdf [retrieved on 2007-08-02]" 
• The applicant asserted that D1 was an unfinished draft (that was later published on the internet) and that the date was a revision date, not a publication date. 
• The Board: "Furthermore, [the Examining Division] was not correct to place the burden of proof on the appellant. In particular, if the applicant states its disagreement with the establishment of a document as prior art and provides detailed arguments challenging prima facie evidence concerning the nominal publication date of a document, the burden of proof shifts to the examining division to establish that the document was made available to the public within the meaning of Article 54(2) EPC 1973 on that date (see T929/94 of 7 July 1998 with reference to T 750/94, OJ EPO 1998, 32)." 
• The decision of the Examining Division was found to be insufficiently reasoned regarding the status of D1, constituting a substantial procedural violation. 
• Regarding the standard of proof, the Board stated that: "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 the evidence must be to support it. If the decision on an issue under examination may result in the refusal or revocation of a European patent, for example in a case concerning alleged prior publication or prior use, the available evidence must be examined very critically and strictly, for example in order to ascertain whether or not something happened (the alleged prior publication or prior use) before the relevant filing or priority date. In any such case, a finding that a publication or use forms part of the state of the art for the purpose of Article 54(2) EPC 1973 should only be made if the available evidence, when subjected to a strict and careful evaluation, establishes that a prior publication or use is likely to have occurred. A European patent should not be refused or revoked unless the grounds for refusal or revocation are fully and properly proven: that is it must be proven "up to the hilt" - see decision T 472/92, OJ EPO 1988, 161." 
• Therefore, the Board concludes that the Examining Division had not sufficiently substantiated that D1 constituted prior art within the meaning of Article 54(2) EPC 1973.