T 0523/14 - Newsletter was public

Key points

• The Board considers it to be proven that a newsletter D11 from the opponent was made publicly available. The Board was in particular convinced by a screenshot sowing an email with D11 as attachment, and corresponding declaration. 
• The Board makes an interesting statement about the evidence threshold to be applied:
" In the present case, practically all the evidence in support of the alleged prior publication of D11 lies within the power and knowledge of in particular respondent 1, with the appellant having no ready access to it. For such a situation, it is established case law that the allegations must be proven "beyond all reasonable doubt", namely that the allegations need to be proven in such a manner that the Board, on the basis of a free evaluation of the evidence on file, is persuaded that the alleged facts have actually occurred". As a comment, " beyond all reasonable doubt"  is often understood as requiring more than simple persuasion.

EPO T 0523/14 - link 

Reasons for the Decision

1. Consideration of D54 in the proceedings

1.1 D54 had been submitted by the appellant (then patent proprietor) shortly before the oral proceedings before the opposition division. The opposition division decided not to admit D54 into the proceedings, using its discretionary power under Article 114(2) EPC, because it was late-filed and it lacked prima facie relevance for establishing the publication date of D11. Nevertheless, the decision contains a detailed analysis and evaluation of the evidence contained therein.

It is not the function of the Board to review all the facts and circumstances of the case as if it were in the place of the opposition division, in order to decide whether or not it would have exercised such discretion in the same way. Rather, the Board must confine its review to whether the opposition division has exercised its discretion according to the wrong principles, without taking into account the right principles, or in an unreasonable way.

1.3 In the present case, only a few days before the oral proceedings before the opposition division, respondent 2 filed D55 to substantiate its allegation that it received D11 as an e-mail attachment on 17 October 2007, while two days later the appellant submitted D54 to prove its contention that D11 was not available on the Glasstech website in November 2007.

1.4 These pieces of evidence were not submitted in time, at least from a formal point of view, since the deadline set in accordance with Rule 116(1) EPC for submissions in preparation for the oral proceedings had not been respected.

The Board considers that it was contrary to the principles of procedural fairness and of equal treatment of the parties to admit D55 while disregarding D54. In the Board's opinion, D54 could serve to cast reasonable doubt on respondent 1's allegation that D11 was available on the Glasstech website in November 2007 or before (D15, point 15) and could thus have been admitted. However, in light of the opposition division's detailed consideration of D54 both in itself and together with the rest of the evidence relating to the issue at hand, the Board tends to conclude that its admission would not have altered the outcome.

1.5 Nevertheless, in view of its potential impact on the most contentious issue in the proceedings, namely the public availability of D11, the Board decided to consider D54.

2. Consideration of D56 to D60 in the proceedings

2.1 The appellant has filed D56 to D60 in direct reaction to the decision of the opposition division not to admit D54 into the proceedings as late-filed.

2.2 The respondents have not indicated, and the Board cannot find, any convincing reason why these pieces of evidence should be disregarded. Hence, these documents are taken into consideration, notwithstanding their relevance.

3. Admission of D61 in the proceedings

3.1 Respondent 2 filed document D61 during the oral proceedings before the Board, although it could arguably have been filed earlier in the opposition or appeal proceedings.

3.2 D61 is prima facie extremely relevant in that it seemingly provides the missing evidentiary link in proving D11's public availability before the filing date of the patent. It does not introduce a fresh case but simply confirms that a Glasstech e-mail comprising D11 as attachment was received by Mr Bouillé and forwarded to Mr Maurer, as alleged in the written statement of Mr Maurer (document D55). The appellant was in a position to react to this new piece of evidence, without adjournment of the oral proceedings.

3.3 Despite its clearly extremely late filing (Article 114(2) EPC and Article 13(1) RPBA), which could only meet with the Board's disapproval, the evidentiary value of this document is such that the Board decided to admit D61 in the proceedings.

4. Prior public availability of D11

4.1 D11 is the Fall-2007-issue of the advertising newsletter "Glasstech World" from Glasstech Inc., i.e. from respondent 1. It is disputed among the parties whether it had been made available to the public before the filing date of the patent (26 February 2008).

4.2 In the present case, practically all the evidence in support of the alleged prior publication of D11 lies within the power and knowledge of in particular respondent 1, with the appellant having no ready access to it. For such a situation, it is established case law that the allegations must be proven "beyond all reasonable doubt", namely that the allegations need to be proven in such a manner that the Board, on the basis of a free evaluation of the evidence on file, is persuaded that the alleged facts have actually occurred (see e.g. Case Law of the Boards of Appeal, 8th edition, 2016, in the following "CL", III.G.4.3.2).

4.3 After reviewing the evidence on file, the Board is persuaded that D11 has indeed been made available to the public before 26 February 2008, in particular for the following reasons.

4.4 When D11 was printed, respondent 1 was a leading manufacturer of glass bending and tempering equipment used by glass fabricators supplying the worldwide automotive and architectural safety-glass markets (see e.g. page 2 of D11, bottom paragraph).

It was the very purpose of D11 to inform interested customers that respondent 1 had engineered new equipment - the Constant Radius Bender Parabolic (short "CRB-P ") - as a cost-effective and efficient means of providing the essential glass parts that were needed by the burgeoning concentrated solar power industry (see page 1 of D11, title and paragraph 4). It is highly probable that respondent 1 distributed D11 in Fall 2007, given its strong interest in attracting as many customers as possible for this new equipment in the emerging and highly competitive field of solar power.

4.6 Respondent 2 provided conclusive evidence in the form of D55 and D61 that Mr Jay K. Molter sent D11 by e-mail to customers on 16 October 2007, as stated in paragraph 14 of D15, and that respondent 2 received this e-mail on 17 October 2007, without any obligation to keep it secret.

D55 includes a printout of an e-mail received on 17 October 2007 which was signed by Mr Jay K. Molter as "Vice President Marketing & Sales" of respondent 1 and was sent by Ms Lore V. Warnke, an employee of respondent 1. The text field of the e-mail reads "Attached for your review is the Fall 2007 issue of Glasstech World" and the subject field reads "FALL 2007 GLASSTECH WORLD". From this it follows that D11 was attached to the e-mail, in a public advertising context.

The addressees of the e-mail cannot be seen in the printout because they were entered in the bcc (blind carbon copy) field, as is common practice when using a mailing list.

D55 also comprises the written statement of Mr Maurer that Mr Bouillé received the said e-mail on 17 October 2007, without a confidentiality obligation, and that he forwarded it the same day internally, to Mr Maurer and other colleagues. This statement is confirmed by D61, which is a screenshot of Microsoft Outlook documenting the forwarding of the e-mail from Mr Bouillé to Mr Maurer and two other colleagues, and showing that D11 was attached to the e-mail as a PDF-file.

4.7 The appellant argued that D61 might be a forged document. However, the appellant did not indicate, and the Board cannot find, any inconsistency or discrepancy in D61 which could suggest that this document is a forgery. The mere fact that it is a screenshot of Microsoft Outlook is insufficient to warrant the conclusion that it has been forged. The appellant only complained that D61 does not comprise the full headers of the e-mails. However, the e-mail headers are normally hidden and not revealed by default and, as explained by respondent 2, they contain sensitive information that must be kept confidential.

4.8 Finally, the November 2007 issue of the USGlass Metal & Glazing magazine (D12) supports the submission of respondent 1 that the editors of this magazine received D11 in or before November 2007, without any obligation to keep it secret. Indeed, the section of the magazine giving information about latest new products comprises an article entitled "CRB-P  Engineers Glass Parts for Solar Power" which reproduces the statements in paragraphs 4, 6 and 10 of D11 and refers to the Glasstech web page (see D12).

The appellant objected to the credibility of statements D15 and D55 as they were written by two employees of respondents 1 and 2, Mr Molter and Mr Maurer respectively. While the written statements of independent persons would tend to carry more weight, the statements of employees of parties to the proceedings are not objectionable per se. In the present case, the content of written statements D15 and D55 is considered sufficiently credible because it is corroborated on its crucial points by documents D12 and D61. In this respect, the present case is not comparable with T 1257/04, wherein an employee statement was the sole piece of evidence filed to prove the public availability of a brochure.

5. Enabling disclosure in D11

5.1 It is common ground that D11, being an advertising newsletter, it is not drafted in a manner as rigorous as a scientific publication.

5.2 Nevertheless, the information given in D11 is sufficient to enable a skilled reader, at the relevant date of D11, to practise the technical teaching which is the subject of the document, taking into account also common general knowledge at that time in the field of glass processing.

5.3 The appellant argues that paragraphs 2, 4, 11 and 13 of D11 comprise ambiguous, inaccurate and imprecise statements. When reading these paragraphs in context, however, a skilled reader will arrive at a technically sound teaching which can be put into practice, as follows.

5.4 D11 describes the "CRB-P  Engineered for Burgeoning Concentrated Solar Power Industry - System" which "Efficiently Produces Parts for Parabolic Reflectors" (see title). Paragraph 3 and 4 of D11 define the acronym "CRB-P" as follows:

"Glasstech's Cylindrical Radius Bender technology is the right technology at the right time to produce the glass substrates that form the parabolic mirrors used in CSP"

and

"Glasstech has engineered the Constant Radius Bender   Parabolic (CRB-P ) as a cost-effective and efficient means of providing the essential glass parts that are needed by the burgeoning CSP market".

5.5 Further, it follows from paragraphs 6 and 9 of D11 that the CRB-P system uses the generally known technique of roller bending to create curved glass parts. In particular, "it bends glass using patented, computer-controlled, roll-forming technology" (paragraph 6).

5.6 In light of this and of the statements in paragraphs 3, 4, 7 and 13, the skilled person understands readily that the CRB-P system comprises a roll-form bender which is adapted to produce curved glass parts with a cylindrical or substantially parabolic shape, which are needed to form parabolic troughs for CSP (see e.g. paragraphs 2 and 7 to 9 and photograph on page 1 of D11).

It is stated in paragraph 11 that "most CSP panels currently are being laminated for strength, once the reflective coating has been applied" and that "glass produced on the CRB-P can be surface-strengthened so additional rigidity is not needed, once the reflective coating has been applied, eliminating the need (and cost) for lamination". These statements must be read in context, in particular in combination with paragraphs 10 and 12. Paragraph 10 teaches that "glass produced on the CRB-P can be annealed for lamination or tempered or heat strengthened", while paragraph 12 teaches that "the CRB-P ... will be able to process glass of varying thicknesses, depending of the surface-strengthening treatment required". Thus, paragraph 11 simply confirms common general knowledge that, even though lamination is usually used for increasing glass strength, when the curved glass parts are "surface strengthened" by tempering or heat-strengthening, neither lamination nor mechanical means are needed for the glass pane to hold its curved shape.

5.8 Paragraph 13 teaches that "CRB-P systems ... are able to quickly form pure cylinders, shapes with two radii that have a point of tangency, J-bends and V-bends" and "with slight modifications, ... an even wider range of sophisticated bends". Even though D11 is silent as to how J-bends, V-bends or even more sophisticated bends could be achieved, the skilled person knows that the CRB-P roll-form bender is configured to produce curved glass parts with a cylindrical or substantially parabolic shape and he is able to put this into practice.

5.9 The present case is thus not comparable with T 412/91, cited by the appellant, wherein the board decided that in assessing novelty a prior-art disclosure had to be read giving the information it contained the meaning that a skilled person would have given it at its publication date and disregarding information which would be understood by a skilled person to be plainly wrong.

6. Claim 1 of main request - Novelty

As set out above, D11 discloses an equipment - the CRB-P system - and a method for producing curved glass-based mirrors for CSP reflectors. The CRB-P system uses the generally known technique of roller-bending to create curved glass. The skilled person knows that this bending technique requires heating the glass above the transition temperature. Thus, the CRB-P system implicitly comprises means for heating a glass pane to be bent, the roll-form bender being used to bend the heated glass pane and thus obtain curved glass parts. Finally, since the aim of the production method according to D11 is to obtain "glass-based parabolic mirrors", it is implicit that the CRB-P system comprises means for applying a reflective coating on the curved glass parts, as confirmed in paragraph 11 of D11.

6.2 Paragraphs 10 and 12 teach that "glass produced on the CRB-P can be ... tempered" and that the CRB-P is able to "fully temper glass as thin as 4.0 mm". Thus, in a preferred embodiment, the CRB-P system further comprises tempering means for heating and rapidly cooling the curved glass parts.

6.3 To sum up, D11 discloses a CRB-P system adapted to produce a curved glass-based mirror consisting of a one-piece 4 mm fully-tempered glass part covered with a reflective coating.

6.4 Such a mirror forms a reflector element for a solar heat reflector, comprising a self-supported curved monolithic heat-treated glass pane and reflecting means, in the terms of claim 1.

6.5 The parties dispute whether or not D11 discloses the feature of claim 1 that this glass pane is "not mechanically flexed".

The Board does not share the appellant's view that this feature must be understood as meaning that the glass pane is "not flexible in a static situation and cannot be cold-bent", as taught in paragraph 17 of the patent specification. In the context of claim 1, the wording "not mechanically flexed" is clear: it means that the glass pane is maintained in its curved shape without the need of mechanical flexing, i.e. without the use of a frame, rigid member or any other external force. Since claim 1 imparts a clear and technically sound teaching to the skilled reader, there appears to be no reason for him to use the description to interpret the disputed feature in a different manner. In this respect, the Board agrees with respondent 2 that the term "not flexible" as used in paragraph 17 has a different meaning than the term "not mechanically flexed" used in claim 1.

6.7 For a skilled person, it is implicit that no mechanical means is needed for the curved, fully-tempered glass pane with 4 mm thickness disclosed in D11 to hold its curved shape. Thus, it is "not mechanically flexed" in the broad sense of claim 1.

6.8 In conclusion, the subject-matter of claim 1 lacks novelty over D11.