3.4.9 Public availability of documents submitted for standardisation

In T 202/97 the board held that a draft standard sent together with an agenda to the members of an international standards working party as part of the preparations for a meeting on standards was not normally confidential and was thus available to the public. Even though only a particular group of persons had been invited to take part in the meeting on standards, it was the task of a standards committee to draw up, with the experts in the field, proposals for standards which had been agreed upon, on as broad a basis as possible, and which were based on the current state of developments. This task precluded any obligation to maintain confidentiality. See also T 2239/15 on the question of the public availability of documents (D1/D2), which the board stated was directly linked to the procedures of MPEG when elaborating new standards. The board held that in the absence of an explicit confidentiality agreement, a bar of confidentiality could not be seen to have been in place in the case in hand. The working group was small enough to make the explicit signing of confidentiality agreements possible, if "absolute" confidentiality (to keep it strictly limited to this group of members present in the meetings) had been intended.

In ex parte case T 1440/09 the appellant did not contest that D1 had been on the internet before the earliest priority date of the application. D1 was a contribution submitted to the Joint Video Team (JVT) for its 15^th meeting in Busan, KR, which took place from several months before the earliest priority date. Furthermore, the board noted that none of the documents on file indicated that contributions to JVT meetings were to be kept confidential even after the meeting in question. The appellant alleged however the confidential nature of D1 based on the understanding that one of the purposes of the "JVT Patent Disclosure Form" was to protect the submitter from its contribution to the JVT meeting being held against its own later patent application. The board stated that the standard, preprinted "JVT Patent Disclosure Form" did not comprise any explicit indication that the technical contribution of the paper it accompanied should be kept confidential. The mere fact that the submitter of contribution D1 might have ticked the box that it was "not aware of any granted, pending or planned patents associated with the technical content of the Recommendation | Standard or Contribution" in point 2.0 of said form did not imply that the contribution D1 was to be kept confidential by any person to whom it was available. The board found that D1 constituted prior art under Art. 54(2) EPC 1973 for the application in the case in hand.

T 738/04 concerned standards institutes too, but confidentiality was in the end not decisive; it is mentioned here because it deals with these institutes' practices.

This question also arises in the context of Art. 83 EPC (see T 1155/12, T 1049/11).