b) Public availability of a document stored on the World Wide Web 

Both T 1553/06 and T 2/09 dealt with the question of the public availability of documents saved on the World Wide Web. These two cases concerned test-cases. These two decisions were taken before T 286/10 (which established the law now applicable with respect to the standard of proof for internet publications).

In T 1553/06 the board developed a test for assessing the public availability of a document stored on the World Wide Web which could be found via a public web search engine on the basis of keywords. In devising this test the board started from its finding that the mere theoretical possibility of having access to a means of disclosure did not make it become available to the public within the meaning of Art. 54(2) EPC 1973. What is required, rather, is a practical possibility of having access, i.e. "direct and unambiguous access" to the means of disclosure for at least one member of the public as set out in G 1/92 (OJ 1993, 277) and T 952/92 (OJ 1995, 755):

If, before the filing or priority date of the patent or patent application, a document stored on the World Wide Web and accessible via a specific URL (1) 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 and (2) remained accessible at that URL for a period of time long enough for a member of the public, i.e. someone under no obligation to keep the content of the document secret, to have direct and unambiguous access to the document, then the document was made available to the public within the meaning of Art. 54(2) EPC 1973.

In T 2/09 the board had doubts as to whether e-mails transmitted over the Internet could be accessed and searched in a way comparable to that of webpages, independent of whether or not access to and disclosure of the content of the e-mail were lawful. The board was rather of the opinion that the differences between webpages and such e-mails make a strong prima facie case against public availability of the latter. The board decided that the content of an e-mail did not become available to the public within the meaning of Art. 54(2) EPC 1973 for the sole reason that the e-mail was transmitted via the internet before the filing date (cf also T 523/14 concerning an advertising newsletter sent by Email – see in this chapter I.C.3.2.1 c)).

In T 2284/13 (Wayback machine as prior art) the board accepted a combination of D5, an incomplete archive version of a web page (on the Wayback Machine web.archive.org; publicly available on 2004 with only small images), with D5', a recent download (2009) of the webpage (with full images) as evidence of a prior art publication. Accordingly, when considering the prior art disclosure of D5, also the expanded figure "the MRTT fuel system" shown in D5' had to be regarded as forming part of that disclosure.