Key points
- The question is whether D11 is prior art. "document (11) is a copy of the slides used by [Dr. Murphy] during the presentation held on 3 November 2009 at Hinxton, UK. The presentation with the title "BAC-based Modifications of the Mouse Genome: The Big and the Backward" took place at the Wellcome Trust in an advanced course entitled "Wellcome Trust Advanced Course: Genome Manipulation of ES Cells". According to Dr Murphy, neither hard copies were handed out to the audience nor electronic copies of the slides were distributed ".
- "It is common ground between the parties that Dr Murphy's presentation took place on the date and place described above." "according to Dr Murphy, all slides were shown to the audience"
- "the presentation took less than one hour, i.e. the 58 slides reproduced in document (11) were shown in less than one hour "
- "the relevant question is not what was presented or shown to the audience but what was actually conveyed to the public, i.e. what the audience took away from Dr Murphy's presentation. In line with the examples in the case law, providing (at least) a contemporary written note from a member of the audience present at this presentation might be an important and decisive element in the evaluation of evidence (cf. T 1212/97, point 7 of the Reasons; T 2003/08, point 42 of the Reasons)."
- T 1212/97 headnote: "The information content made publicly available by a lecture cannot be put beyond reasonable doubt by any evidence of the lecturer alone, as the lecturer is in a quite different position to a member of the audience".
- " None of the declarations on file (documents (23) to (28), (30), and Dr Meng (Amy) Li's witness testimony) is indeed a contemporary written note taken at Dr Murphy's presentation. "
- "Although ... some members acknowledge in their declarations [from 2016] to have taken such notes, none of them has actually been ever produced "
- " Following the laboratory meeting [of the group of Prof. Bradly on 4 November 2009, including some members of the audience of Dr Murphy's presentation], Professor Bradley compiled on 6 November 2009 a summary of "what we had learnt from Dr Murphy's presentation" that was circulated to the participants of this meeting on 9 November 2009 []). None of these documents is thus contemporary to Dr Murphy's presentation and all of them were produced after conversations, discussions and a meeting that took place [in the group of Prof. Bradly] well after Dr Murphy's presentation among members of the audience who, to use Professor Bradley's own words, "had a particular interest in attending the 2009 presentation by Dr Murphy from Regeneron, because ... had great relevance to our own work".
- "[There can be no] doubt that, in view of the interest/relevance of Dr Murphy's presentation, conversations, discussions and comments on this presentation took place among such a group of skilled persons immediately after this presentation"
- "The fact that all these discussions, conversations and comments took place after Dr Murphy's presentation and before the compilation of a summary of this presentation by Professor Bradley [...] as well as before the statements/declarations of the members of the audience of Dr Murphy's presentation on file (documents (23) to (28), and (30)), is to be taken into account. This has not been done by the opposition division. After all, the board can thus not agree with the opposition division's conclusion that the relevant "information content" was indeed made available and conveyed to the audience in Dr Murphy's presentation."
- " Since, as a consequence, document (11) does not form part of the state of the art, no information can be derived therefrom"
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/2023/05/t-163417-sheets-shown-during.html
