Key points
- " The patent in suit claims priority from a US patent application filed on 25 May 2006. Document D1 is a scientific article which was published in 2006 in volume 102 of the journal Anesthesia & Analgesia. The exact publication date of D1 is not available in the document itself. As evidence for its publication date being before the priority date of the patent, the respondent provided the following documents during the opposition proceedings: D1a, D14, D15 and D16."
- The board reviews the submitted evidence.
- "the board concludes that, although D1 does not feature any publication date other than the year of 2006, there is evidence on file indicating that the issue to which D1 belongs has the date of 1 May 2006 (D1a) and that it had been published on 21 April 2006 (D15 and D16). Moreover, there is evidence that the printed edition of the journal issue was publicly available on 19 May 2022, as this was the date of receipt at one public library (D14). There is no evidence on file contradicting this evidence."
- " The board is not persuaded by the appellant's arguments that the evidence on file is contradictory and does not make it possible to clearly establish when D1 was published. The fact that both a senior managing editor and a senior publisher of the journal independently indicate the same date as the date of publication for the issue in question makes it possible to conclude with a high degree of certainty that this is the correct publication date. The board fails to see any good reason to doubt the credibility of Ms [L] and Mr [B] , and the appellant has not provided any evidence to support such allegations. Moreover, it is sufficient to establish that the document was available to the public before the priority date in order to conclude that it is prior art. D14 is already considered to provide sufficient evidence that D1 was in fact publicly available before the priority date. Contrary to the appellant's arguments, it is not relevant whether or not a member of the public indeed had access to it; the librarian that received the issue and registered it in the database from which D14 has been obtained is a member of the public in any case for the purposes of Article 54(2) EPC (see e.g. T 834/09, points 5.1 to 6.3 of the Reasons)."
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/2023/03/t-064920-exact-publication-date.html
