c) Advertising brochure 

T 804/05 concerned the public availability of an advertising brochure usually distributed amongst interested specialists and bearing a date on its cover. The board decided that, in the absence of any evidence to the contrary, it had to be assumed that this brochure had been made available to interested customers, without any obligation to keep it secret, in the months following the cover date (see also T 1589/13 (internet publications) which stated that this presumption was supported by an affidavit and an invoice for printing of the advertising brochure).

In T 743/89 the board held that it was in the respondent's (patent proprietor) own interest to ensure widespread distribution of the commercial pamphlet in order to inform as many potential customers as possible of this latest development in a highly competitive field. Here, it had been proved that a leaflet disclosing the invention had been printed seven months before the date of priority, but it was uncertain when the leaflet had been distributed. The board took the view that, although the date of distribution could no longer be ascertained, it was reasonable in any event to assume that distribution had occurred within the seven-month period (see also T 1748/10).

In T 146/13 the proprietor maintained that the opponent had not supplied proof that a commercial brochure (D6) had been distributed before the priority date of the patent in suit. The board noted that there was a gap of more than 24 months between the date of printing and the priority date and, citing the established case law (T 287/86, T 743/89, T 804/05, T 1748/10), held that this was sufficiently long to presume that D6 had been made available to the public. The board was also convinced that it was standard practice not to print a commercial brochure unless it was to be distributed to interested groups with a view to attracting the attention of potential clients. The publisher of D6 had likewise had it printed in an effort to present its products and their advantages to its target market (see also T 184/11).

In T 77/94 the argument that a publicity notice's date of issue was necessarily immediately after its date of printing (because such notices were only produced in order to be issued) was held to be merely a supposition which required confirmation; in reality, things were often different (see also T 1440/04).

In T 353/14 the board decided that D10 could not be considered a commercial brochure of a company which was intended to inform potential customers about particular products of the company as in cases T 743/89, T 253/02, and T 804/05. Rather, document D10 had the nature of an applied electrical engineering paper. As such, the copyright notice and the revision mark could not be regarded as the date of printing of a stack of copies of D10 for their subsequent public distribution. D10 was not considered as having been made available to the public as a commercial brochure before the priority date. The public availability of D10 was then considered as to its availability on the internet (on the balance of probabilities).

In T 523/14 it was highly probable that the opponent distributed the advertising newsletter in Fall 2007, given its strong interest in attracting as many customers as possible for the new equipment in the emerging and highly competitive field of solar power. Furthermore the board considered that even not drafted in a manner as rigorous as a scientific publication, the information given in the advertising newsletter was sufficient to enable a skilled reader to practise the technical teaching.