Key points
- The application is refused as allegedly not novel or not inventive over a Youtube video. The Board concludes that the EPO's current way of " saving" video prior art (namely as a single print screen in a PDF file) is insufficient "for preserving video evidence and guaranteeing its accessibility over time as needed for EPO proceedings".
- " However, the web page corresponding to the URL indicated in the citation of document D4 is no longer functioning, so the board cannot assess on its own the relevant parts of the video evidence D4."
- " Essentially the same situation was dealt with in appeal case T 3071/19 against the decision to refuse a parallel application of the same family as the current application. In that case, the decision to refuse the application was based on the same evidence D4 as in this case (D2 in that decision). As the responsible board explained in T 3071/19, Reasons 6, under these circumstances, the board cannot review the correctness of the contested decision's reasoning in so far as it relies on what is shown in the YouTube video evidence. Nor can the board assess the appellant's arguments that this online video is not an enabling disclosure and that there are further distinguishing features other than those recognised in the decision under appeal."
- There is no copy of the youtube video in the file.
- The reason is that the EPO is as of yet (2022!) only capable of storing black/white, "dead image" PDF files in the prior art, as I understand it.
- For that reason, D4 is actually only a screenshot: " The document with the screenshot was annexed to the communication and is part of the electronic file. The reproduction of the screenshot is of poor quality, but the first video frame (with time stamp "0:00/1:21") can be seen. The document also shows YouTube information about the video, including the publication date of 9 July 2008 used by the examining division. It does not show any other information relevant to the case."
- As a comment, it is possibly interesting to learn from the EPO IT report 202 that "With regard to decommissioning the mainframe, progress was made by moving the PHOENIX image archive to cloud-native servers running an off-the-shelf image archive" and "there is no place in the cloud-native world for 1970s technology, such as the mainframe" (IT Report 2020, CA/40/21)
- The Board holds the following on internet disclosures in general:" An internet disclosure may be regarded as part of the state of the art within the meaning of Article 54(2) EPC. However, examining divisions should make sure that an internet disclosure used as state of the art is reliable in terms of both the publication date (see decision T 1066/13, Reasons 4 to 4.3; see also the Guidelines for Examination in the EPO, G-IV, 7.5.1) and continued accessibility to its content in the version made publicly accessible on that date"
- " Since the content on the internet changes over time, when "electronic evidence" such as an internet document or a video is used as prior-art disclosure against the patentability of an application, appropriate measures should be taken for collecting, storing and preserving this evidence and making it accessible under suitable conditions for the judiciary, or interested parties, for example, the applicant, an opponent, their respective representatives or a member of the public."
- " In the current case, document D4 consisting of a screenshot (see point 4 above) included in the file is clearly insufficient for the judicial review of the decision under appeal. Furthermore, it is not apparent from the file whether the video's content has been collected, preserved and/or stored in a manner which guarantees accessibility for members of the judiciary or interested parties."
- " The board could also not find publicly available information about whether and how, in proceedings before the EPO, the content of an internet video used as prior-art evidence in examination should be preserved and made accessible to external parties or the boards of appeal."
- " With regard to the search report, the Guidelines for Examination (B-X, 11.6) indicate that video and/or audio media fragments available on the internet are converted into a non-patent literature citation, and that the bibliographic data contains the URL of the original location on the internet. At the time the decision under appeal was written, the Guidelines for Examination (November 2018, B-X, 11.6) further indicated that such fragments should be cited as a screenshot of the first page of the internet citation. In the present case, the non-patent literature citation is document D4 with a screenshot of the video. The examining division has thus followed the indications in the Guidelines."
- " However, a number of screenshots taken from a video, let alone a single screenshot, fail to preserve in its original format the necessary video content to ensure that the video evidence required for review and public inspection is available later. Consequently, the procedure in accordance with the Guidelines for Examination, B-X, 11.6 is insufficient for preserving video evidence and guaranteeing its accessibility over time as needed for EPO proceedings or for further judicial proceedings before the boards of appeal of the EPO or national courts (Article 131(1) EPC). The board could not find any other passages of the Guidelines for Examination describing how to preserve the content of multimedia disclosure used as prior art in the proceedings before the EPO and to guarantee its accessibility for external parties or judicial bodies."
- Let's hope the EPO will be able (and will) set up an archive for saving videos from the internet.
EPO T 3000/19
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/2022/08/t-300019-youtube-as-prior-art-and.html
