Key points
- This is an examination appeal. The Board seems to remit the case to the Examining Division to decide again on whether D1 was public at the relevant date or not.
- D1 is " 3GPP TSG RAN WG2 #64, R2-086821, November 2008." The priority date is in February 2009.
- The applicant argues that: " the meeting on 10 to 14 November 2008 was an internal meeting of the 3GPP cannot be considered public as only participants of the 3GPP standardization committee were attending"
- The Board: " the decision under appeal does not address the applicant's arguments in this respect (and there was also no communication issued in that regard). It follows that the examining division did not respect the appellant's right to be heard as to the matter of public availability of document D1."
- Turning to the merits of the case, the Board observes the following: " the examining division could and should have explained how it assessed the public availability of document D1. The board takes note of the specific indications compiled in the valid version of the Guidelines for Examination (cf. Guidelines G-IV, 7.6 "Standards and standard preparatory documents" in the applicable version of November 2019), and the available case law on the public availability of technical standards, such as T 1469/10, Reasons 2.3 (relating to 3GPP standards: "... the respective dates ('timestamps') indicated on the 3GPP document lists reliably correspond to the dates on which a certain document was uploaded to the 3GPP file server and thus was available on the server to be accessed by the public ..."), or e.g. T 2239/15 (see Catchword). Besides, if the examining division retrieved the 3GPP document from one of the EPO's in-house databases mentioned in the Guidelines, rather than from the Internet, such databases would usually record the specific date in which the document was downloaded from a 3GPP server."
- To cite the Guidelines: " While documents in the EPO's in-house databases are regarded as being available to the public" - this must probably be understood in the context of the paragraph.
EPO
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/2022/10/t-121520-3gpp-document.html
