3.3. The concept of "the public"
Overview
3.3. The concept of "the public"
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The boards considered the concept of "the public" in several decisions. According to their case law, information is generally to be regarded as having been made public if even just one single member of the public is in a position to gain access to it and understand it, and if there is no obligation to maintain secrecy (T 1081/01, T 229/06, T 1510/06, T 1309/07, T 2/09, T 834/09, T 1168/09, T 239/16).
In T 1829/06 the board stated that, according to established jurisprudence, information was considered to be made available to the public even if only one member of the public had access to it and there was no bar of confidentiality restricting the use or dissemination of such information. The fact that this member of the public acted as a straw man or that the opponent itself could have had difficulties in obtaining the article was immaterial.
- Case law 2019
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In T 1050/12 the question of availability to the public of meeting abstracts of presentations for a future conference published in a supplement to a regular volume of a scientific journal was disputed. There was corroborating evidence in the form of date-stamped copies for the dates of receipt and/or cataloguing, and the board had no reason to doubt the usual routines described by librarians in their declarations. On the contrary there was no evidence on file supporting the allegations of the respondent (patent proprietor) that the journal supplement was not to be disseminated freely. The board did not agree that the conclusions of T 834/09 contradicted the earlier jurisprudence and refused the respondent's request for referral to the Enlarged Board. The board considered that, regardless of whether or not the librarian is considered a member of the public (as was the issue in decision T 834/09), there was persuasive evidence that documents at issue were made available to the public before the priority date of the present patent.