Key points
- The claim is directed to a base fabric for an airbag. Public prior use is the issue. I focus on the issue of implied secrecy.
- " It was not contested by the proprietor that the yarn supplied by Toyobo Co. Ltd was woven into a base fabric at Shimizu Co. and stored at Chuo Warehouse Co as depicted in the flowchart D2. '
- " The proprietor argued instead [] that there was no evidence that Shimizu Co. had ever sold the base fabric and that there was at least an implicit secrecy agreement between Toyobo Co. Ltd, Shimizu Co., Chuo Warehouse Co. and the recipients of base fabric stored in the warehouse, namely Seiren Aucus, Toyoda Gosei, Ashimori Industry, Nikkou Rubber and Nihon Plast."
- " The Board does not find these arguments convincing. The cargo receipts D5 and D46/D46a show that several deliveries of large quantities of base fabric from the warehouse to Seiren Aucus (an airbag producer) among other recipient airbag producers took place as early as April 2008 (the priority date of the contested patent being 23 August 2010).'
- " Although no purchase receipts were filed demonstrating a money transaction had been made, the Board finds that the large quantities of fabric delivered could not reasonably have been supplied and used only for prototypes and pre-series runs and that the deliveries were thus at least meant to be used for the commercial serial production of airbag modules, not least due to the regular transactions which occurred between the companies. '
- " In such a serial production phase of the airbags, the Board also cannot see any plausible reason for the companies involved to have had a secrecy agreement, since the airbags were destined to be mounted on production vehicles and sold to third parties/end customers which are under no secrecy obligations concerning the vehicle or its components."
- " Turning to the declaration D69 [of a person with a Japanese name] which the proprietor [a Japenese company, it seems] used as evidence to show that implicit secrecy was normal in the automotive industry, this states in paragraphs 8 and 9 that "airbag base fabrics are handled under implicit secrecy obligations" and that "its technology was not made freely available at any stage". However, D69 includes the explanation in paragraphs 11 to 13 that "airbags and their properties are not publicly known", that "it is not normal for customers to disassemble an airbag" and that "once an airbag module is obtained in the market, the public cannot access, let alone analyse, the base fabric for the airbag in the airbag module" and that for these reasons "the technology for a base fabric for an airbag in the automotive industry is under implicit secrecy and is even more so not made freely available at any stage", the latter expression being the same as used in paragraphs 8 an 9. By stating in paragraph 12 that the technology of an airbag obtained in the market and thus in possession of the public is "under implicit secrecy and not made available at any stage" shows that the declarant is not aware of the conditions for public availability which are applied in the Boards case law, where it is not necessary to prove that an analysis of an airbag module has actually been carried out, but only that the airbag module has been made accessible to persons who are not bound to any secrecy agreement regardless of the technical skills required to do such an analysis.'"
- The claim is found to lack an inventive step.
EPO T 1185/19
The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.
source http://justpatentlaw.blogspot.com/2022/07/t-118519-no-implied-secrecy-automotive.html
