T 3257/19 - Internet publication on a public 3GPP server

Key points

• "during the examination proceedings, the examining division referred inter alia to the following prior-art document: D11: Qualcomm Europe: "Processing PCC in Release 8 - IP-CAN Type & RAT Type", S2-081161, 3GPP SA2 #63, Athens, Greece, February 2008."
• "The appellant submitted that the publication date of document D11 had not been reliably established by the examining division. '
• "he appellant seems to argue that the examining division failed to establish beyond reasonable doubt the exact earliest date of public availability of those documents. However, according to the established case law (see e.g. T 884/18, Reasons 6), this is no longer the applicable standard of proof required for assessing whether or not documents downloaded from the Internet or standard preparatory documents belong to the state of the art. In view of the available evidence and arguments, the board is sufficiently convinced that D11 was indeed made available by file upload to a public 3GPP server before the 3GPP TSG-SA2 Meeting #63 took place, i.e., at any rate, well before 14 March 2008."
• The applicant had also argued that:  it could not be determined that the document "could be found with the help of a public web search engine by using one or more keywords all related to the essence of the content of that document", with reference to case T 1553/06, Headnote 4."" 
• " The subject-matter of claim 1 does not involve an inventive step (Article 56 EPC) starting from D11 for the following reasons ..."
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EPO 

The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.

https://www.epo.org/law-practice/case-law-appeals/recent/t193257eu1.html

3. Publication date of document D11

3.1 The appellant submitted that the publication date of document D11 had not been reliably established by the examining division. In particular, the appellant objected that the examining division failed to explain the meaning of the "server date" referred to in the reasons of the appealed decision and, even if that date was considered as the "upload date" of the presently downloadable version of the zip-file, the reasons were completely silent with regard to when the discussed zip-file was indeed made available for download by anyone. Even if it was the case, it could not be determined that the document "could be found with the help of a public web search engine by using one or more keywords all related to the essence of the content of that document", with reference to case T 1553/06, Headnote 4. Furthermore, the content of the written contributions in the list provided by the examining division could not be reliably determined based on the list of contributions alone. It was not apparent whether the referenced list, which bears a date in 2019, was created and made available to the public prior to the effective date of the application. There were various inconsistencies between the dates borne by document D11 and the date attributed to the respective zip-file at the server referred to by the examining division. In addition, the meeting referenced in the appealed decision had taken place on "18-22 February 2008".

3.2 The appellant seems to argue that the examining division failed to establish beyond reasonable doubt the exact earliest date of public availability of those documents. However, according to the established case law (see e.g. T 884/18, Reasons 6), this is no longer the applicable standard of proof required for assessing whether or not documents downloaded from the Internet or standard preparatory documents belong to the state of the art. In view of the available evidence and arguments, the board is sufficiently convinced that D11 was indeed made available by file upload to a public 3GPP server before the 3GPP TSG-SA2 Meeting #63 took place, i.e., at any rate, well before 14 March 2008.

3.3 It follows that document D11 is to be considered prior art under Article 54(2) EPC.