T 2173/22 - Public prior use in the Village Grocer in Petaling Jaya Malaysia

Key points

• I should mention firstly that the Village Grocer appears to be a nice supermarket in a suburb of Kuala Lumpur.
•   D30 is "Vanilla Mango Flavoured Formulated Milk for Pregnant Women", Mintel GNDP, Record ID: 2577737, July 2014. D30a is here. 
• "D30 is a record extracted from the Mintel GNPD database. It was not disputed that Mintel GNPD is generally acknowledged in the field of nutritional compositions to be a reliable database of commercially available products. D30 reproduces the information on the packaging of a product purchased in a public establishment. The record is also accompanied by images of the packaging, which were provided in colour and higher quality in D30a. An inspection of the images in D30a confirms that the product description and the ingredients disclosed in D30 truly reflect the information on the purchased product. In addition, D30 discloses that the product was purchased by one of Mintel's shoppers in a supermarket called "Village Grocer" in Petaling Jaya 47810, Malaysia."
• "Therefore, D30 is a valid piece of evidence of public prior use. The information it contains demonstrates beyond reasonable doubt that the product described therein was publicly available before the priority date of the patent."
• The Board finds claim 1 to be novel but obvious over D30

EPO 

The link to the decision and an extract of it can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t222173eu1

3. Validity of D30 as evidence of public prior use

3.1 The appellant contested the validity of D30 as suitable evidence of public prior use. It argued that public prior use had to be proven beyond reasonable doubt and that D30 did not meet this standard, especially with regard to the date on which the product of D30 had been made available to the public.

3.2 The board disagrees. D30 is a record extracted from the Mintel GNPD database. It was not disputed that Mintel GNPD is generally acknowledged in the field of nutritional compositions to be a reliable database of commercially available products. D30 reproduces the information on the packaging of a product purchased in a public establishment. The record is also accompanied by images of the packaging, which were provided in colour and higher quality in D30a. An inspection of the images in D30a confirms that the product description and the ingredients disclosed in D30 truly reflect the information on the purchased product. In addition, D30 discloses that the product was purchased by one of Mintel's shoppers in a supermarket called "Village Grocer" in Petaling Jaya 47810, Malaysia. The parties disputed the meaning of the entry "Date Published" in D30, which was July 2014. According to the respondents, this date indicated when the record had been published in the Mintel database. In contrast, the appellant contended that it could be the date on which the product had been purchased. This issue can be left unresolved, since in either case no doubts arise as to the public availability of the product in July 2014, i.e. nearly one year before the priority date of the patent.

Therefore, D30 is a valid piece of evidence of public prior use. The information it contains demonstrates beyond reasonable doubt that the product described therein was publicly available before the priority date of the patent.