3.3.4 Public library

In T 834/09 the board stated that the person in charge of the reception and date stamping of an incoming document at a public library is without any doubt a member of the public as this staff member is in no way bound by any obligation to maintain secrecy about the publications he/she handles and the content thereof, and after all, his/her very function as a staff member of a public library is to make information available to the public. The board went on to state that in the case of a written disclosure it is irrelevant whether the staff member is a person skilled in the art or not, because the content of a written disclosure can be freely reproduced and distributed even without understanding it. Thus the board held that the reception and date stamping of an incoming document by a staff member of a public library makes the document available to the public.

In T 314/99 it was undisputed that the diploma thesis arrived in the archive of the Chemistry Department Library of the University of Hamburg before the priority date. However, in the board's judgment, the diploma thesis did not by its mere arrival in the archive become publicly available, since that did not mean it was as of that point in time catalogued or otherwise prepared for the public to acquire knowledge of it, and because without such means of information the public would remain unaware of its existence.

In T 1137/97 the board stated that the strength of the presumption in favour of the accuracy of a "Received" date marking appearing on the copy of a journal in a library as evidence of the actual date when the journal was made available to the public would depend on the library routine used. The board did not accept a handwritten date on the cover of a journal in view of other evidence.

In T 729/91 one relevant document was an issue of a periodical intended for hoteliers and caterers. In accordance with the evidence brought forward in the case, a copy of this periodical was received by a particular library, i.e. before the priority date of the patent in suit. The librarian stated that publications were "generally available to the public as of the date of receipt". In the present case, it was, in the board's view, likely that the publication was available as from the date of receipt.

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.