T 0915/12 - Publication date

Key points

• An excerpt from a technical encyclopedia is not admitted into the proceedings, because its publication date was not shown. The priority date is 5 February 2001, the encyclopedia mentions a copyright date in 1999 and a printing date in 2000. Moreover, a handwritten note of a librarian was submitted confirming receipt of the book in 2000. However, the note is rather informal and in part illegible. 
• The Board: The annotation made by Ms [S] does not fulfill the requirements of form and content, which usually apply for affidavits or similar documents. For instance apart from the usual details about the identity of the witness and her involvement in the circumstances surrounding the facts reported the text is silent as to the circumstances in which the book was handled"

T 0915/12 - link

Reasons for the Decision

1. Submissions filed in the appeal proceedings

1.1 Documents D9 to D14 were cited by the appellant with the grounds of appeal. It is therefore within the board's discretion to admit these pieces of evidence (article 114 EPC and article 12(4) RPBA).

The reason given by the appellant for citing documents D9 to D14 can be read on page 6/8 of the grounds of appeal, namely that they were relevant for the issue of inventive step of the claimed method because they demonstrated that an increase in volume flow of process air for drying was general knowledge, and did not lead to any difficulty when used with a wave shaped web of the type disclosed in D3, so that the teaching of D5 would be applied to D3 by the skilled person.

The board is of the opinion that the question of flow of process air for drying was at the heart of the debate right from the beginning with respect to the granted method-claim, and that these documents should thus have been submitted during the opposition proceedings.

Furthermore D9 to D14 or the general knowledge derivable therefrom do not appear to be highly relevant, in the sense that the impugned decision did not question that the skilled person would combine D5 with D3. The opposition division found that applying the teaching of D5 to D3 would have a negative effect on the main aim of the process disclosed in D3 (see page 5, fifth paragraph of the decision), so that the skilled person would have abandoned this idea.

In light of these considerations the board decided to disregard documents D9 to D14 pursuant to article 114(2) EPC and article 12(4) RPBA.

1.2 Document D15 - Novelty

[...]

1.3 Extracts D16 to D18 of Encyclopedia Books

1.3.1 D16 was considered to be highly relevant by the appellant for the issue of inventive step of the method defined in claim 1 as granted (main request).

D16 is an extract of Book 6A of the encyclopedia "Papermaking Science and Technology". The appellant referred to the annotations "copyright 1999" and "printed 2000" on a cover page as well as to a copy (D16a) of said cover page provided with a hand-written text of "Ms C. Saikkonen, Head of Collections Department University of ... Library" (Note from the board: the handwritten name of the university is not legible) . The text reads: " I confirm this copy of this title has been received by our library in the year 2000."

The board shares the respondent's view that these submissions do not form sufficient evidence for proving that D16 was made available to the public before the priority date (5 February 2001) claimed by the patent in dispute. The printing (2000) and copyright (1999) years indicated in D16 cannot alone prove accessibility before early 2001. The annotation made by Ms Saikkonen does not fulfill the requirements of form and content, which usually apply for affidavits or similar documents. For instance apart from the usual details about the identity of the witness and her involvement in the circumstances surrounding the facts reported the text is silent as to the circumstances in which the book was handled in particular whether the book was received in the library by Ms Saikkonen personally, and when it was actually made available for public consultation, such as by putting it on a shelf or entering it into an accessible database.

The board arrived at the conclusion that, in the absence of sufficient proof for the effective date of public availability of Book 6A, document D16 did not constitute state of the art pursuant to article 54(2) EPC, and was thus to be disregarded.

1.3.2 D17 and D18 were cited by the appellant only for demonstrating a lack of inventive step of the

subject-matter defined in claim 1 of some of the auxiliary requests. Consequently these documents are not considered to be prima facie relevant for the issue of patentability of the subject-matter defined in the claims of the main request.

Documents D17 and D18, for which the date of public accessibility was also questionable for similar reasons as those expressed for D16, are therefore also disregarded (article 114(2) EPC).

1.4 In summary the board decided to disregard all the documents (D9 to D18) which had been submitted for the first time during appeal proceedings.