T 0884/18 - Wayback Machine

 Key points

• “As variously stated in case law, the appropriate standard of proof for Internet citations is the "balance of probabilities" and not "beyond reasonable doubt". The conclusions reached in the earlier decision T1134/06 that the stricter standard of proof "beyond reasonable doubt" had to be applied to Internet disclosures has been superseded by more recent case law [] Thus availability to the public is considered to be established on the balance of probabilities by the date stamps on evidence A4a/A4b from the Wayback Machine.”
• “ The respondent-proprietor also submits that according to information available on the WebArchive, the recording date of the images by the Wayback Machine may not always be the same as that of the general HTML page on the date stamp. However, they neither argue that this is in fact the case for A4a/A4b nor have they submitted any evidence to that effect. The Board therefore sees no reason to question the validity of the availability to the public of the whole assembled web page shown in A4a/A4b, including the images, on their date stamp of 2 April 2006.”
  
  
• The Board also applies Article 13(2) RPBA 2020, and highlights that part of the decision in the catchword, but I don't see any remarkable point in that. The Board seems to suggest that if they issue the preliminary opinion months in advance of the hearing, the patentee should not file a new main request at the beginning of the oral proceedings even if the preliminary opinion does not set any time limit for filinga  response.

T 0884/18 - 

https://www.epo.org/law-practice/case-law-appeals/recent/t180884eu1.html

6. Internet evidence A4a/A4b

6.1 As variously stated in case law, the appropriate standard of proof for Internet citations is the "balance of probabilities" and not "beyond reasonable doubt". The conclusions reached in the earlier decision T1134/06 that the stricter standard of proof "beyond reasonable doubt" had to be applied to Internet disclosures has been superseded by more recent case law, see Case Law of the Boards of Appeal, 9th edition 2019 (CLBA), I.C.3.2.3.c)(i).

6.2 Thus availability to the public is considered to be established on the balance of probabilities by the date stamps on evidence A4a/A4b from the Wayback Machine.

6.3 The respondent-proprietor also submits that according to information available on the WebArchive, the recording date of the images by the Wayback Machine may not always be the same as that of the general HTML page on the date stamp. However, they neither argue that this is in fact the case for A4a/A4b nor have they submitted any evidence to that effect. The Board therefore sees no reason to question the validity of the availability to the public of the whole assembled web page shown in A4a/A4b, including the images, on their date stamp of 2 April 2006. This is before the relevant valid date for claim 1 of the main request, 6 November 2006 (second priority date) or 7 November 2006 (filing date).

6.4 The Board concludes that A4a/A4b is part of the prior art in the sense of Article 54(2) EPC for claim 1 of the main request.