CASELAW-EPO - reviews of EPO Boards of Appeal decisions

The application generally relates to wireless communications and more particularly to policy control for encapsulated data flows. 

Brief outline of the case

The application was refused by the ED, inter alia, for lack of N or IS of various claims in a series of MR and AR.

The applicant appealed.

The discussion revolved around the fact whether D11=Qualcomm Europe: “Processing PCC in Release 8 – IP-CAN Type & RAT Type”, S2-081161, 3GPP SA2 #63, Athens, Greece, February 2008, was available to the public.

For the applicant it was not publicly available.

For the board it was.

The board confirmed the refusal.

Public availability of D11

The applicant’s point of view

The applicant submitted that the publication date of document D11 had not been reliably established by the ED.

In particular, the applicant objected that the ED 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 ED 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 ED.

In addition, the meeting referenced in the appealed decision had taken place on “18-22 February 2008”.

For the board, the applicant seems to argue that the ED failed to establish beyond reasonable doubt the exact earliest date of public availability of those documents.

The board’s point of view

For the board, according to the established case law and for example in T 884/18, Reasons 6, 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 is not any longer “beyond any reasonable doubt” but the “balance of probabilities”.

In view of the available evidence and arguments, the board was 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.

Comments

It is now well established case law that the public availability of an Internet citation is to be assessed according to the “balance of probabilities” and not “beyond any reasonable doubt”.

The criterion “beyond any reasonable doubt” had been introduced in T 1134/06.

At the time, the board actually was of the opinion that the EPO should create a kind of repository of all Internet citations. With a Wayback Machine like “archive.org”, creating an own depository by the EPO was not at all necessary. This way of looking at Internet citations is well accepted well before T 884/18.

T 1553/06 was a kind of intermediate step between T 1134/06 and T 884/18.

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