T 2284/13 - Wayback machine as prior art

Key points

• The Board accepts a combination of an incomplete archive version of a web page (on the Wayback Machine; with only small images) with a recent download of the webpage (with full images) as evidence of a prior art publication. 

EPO T 2284/13 - link

IV. The Opponent's submissions may be summarized as follows:

The subject-matter of claim 1 of the main request is not inventive over document D5 (Air Force Technology, "A310 MRTT Multirole Tanker Transport, Europe", http://web.archive.org/web/20040407041 621/http://ww.airforce-technology.com/projects/mrtt/ (publicly available on 7 April 2004)) or D5' (Air Force Technology, "A310 MRTT Multirole Tanker Transport, Europe", http.//www.airforce-technology.com/projects/mrtt (copy extracted from the Internet on 23 February 2009)), in view of the skilled person's common general knowledge

Reasons for the Decision

1. The appeals are admissible.

2. In the Board's view there cannot be any reasonable doubt that the Internet publications D5' and D5 disclose one and the same air refueling system. Both D5 and D5' illustrate the Airbus Industrie A310 MRTT wide-bodied multi-role tanker transport aircraft, the texts including technical features and data of the refueling system corresponding in a 1:1 fashion, the texts being structured and formatted in the same way (same paragraphs) and both documents having identical (unexpanded) figure captions. The (unexpanded) figures in the margin permit e.g. to identify 1:1 identical refueling pods or fuel tank location (see figure "for the air-to-air refuelling (Tanker) role") and identical fuel lines (see figure "the MRTT fuel systems"). Obviously, not all features in the (unexpanded) figures of D5 and D5' can be compared due to the their considerably small size. The only discrepancies to be noted between the two texts relate to non-technical features, i.e. to an updating in D5' informing that "four A310 MRTT aircraft are in service with the German Air force" and that "two A310 aircraft of the Canadian Air Force have been converted to the MRTT configuration" (see D5', page 1). By contrast, in D5 the corresponding older text stated that "the German Air force has ordered four A310 MRTT aircraft" and that "the Canadian Air Force has ordered two MRTT Aircraft". This however does not affect the information in D5 and D5' concerning purely technical aspects of the refueling system. Consequently, the Board is convinced that the expanded figures of D5' also form part of the disclosure of D5 in the sense that by expanding the (unexpanded) figures of D5, the same expanded figures as shown in D5' would have been obtained at the time at which D5 was made available to the public, which time is, undisputedly, before the relevant date of the patent in suit. Accordingly, when considering the prior art disclosure of D5, also the expanded figure "the MRTT fuel system" shown in D5' must be regarded as forming part of that disclosure.