3.3.3 A limited circle of people

According to the case law of the boards of appeal the information is publicly available where it was made available to a limited circle of people (T 877/90 – congress; T 228/91 – course; T 292/93 – demonstration for potential customers conducted on the premises of a company with close links to the opponent). Whether or not a member of the public has actually accessed the information is irrelevant (see T 84/83). In T 877/90 an oral disclosure was regarded as made available to the public if, at the relevant date, it was possible for members of the public to gain knowledge of the content of the disclosure and there was no bar of confidentiality restricting the use or dissemination of such knowledge war (see also T 300/86 on a written description and T 443/09 on public prior use).

According to T 165/96 which concerned the public availability of technical information drafted in Danish and disclosed in an insert in a minor small-ads newspaper (circulation: 24,000) distributed in the suburbs of Copenhagen, the "public" within the meaning of Art. 54(2) EPC 1973 did not presuppose a minimum number of people or specific language skills or educational qualifications. It followed that the residents of a Copenhagen suburb were held to represent the public.

In T 1085/92 the board ruled that a company's own staff could not normally be equated with "the public" within the meaning of Art. 54(2) EPC 1973 (see also T 1464/05, T 1057/09).

In T 1081/01 the board observed that if, at the time of receipt of the information, the recipient was in some special relationship to the donor of the information, he could not be treated as a member of the public, and the information could not be regarded as published for the purpose of Art. 54 EPC 1973. Even if this special relationship were later to cease, so that the recipient was now free to pass on the information, the mere cessation of the special relationship did not make the information available to anyone else (see also T 1057/09, with respect to a diploma thesis).

In T 398/90 a marine engine installed in a ship was held to have been known to the engine room crew and hence to have been made available to the public.

In T 313/05 the respondents asserted that document D30 had been made available to the public at an international workshop. The board came to the conclusion that the public availability of document D30 before the priority date of the patent in suit could only be regarded as established if, in view of the evidence, it had no reasonable doubt in this respect. This requirement was not met (see also T 1335/05).