Part C of the EPO”s Guidelines for Examination published on April 1 now states that, as a matter of principle, disclosures on the Internet form part of the state of the art for evaluating novelty and inventive step.
Guidance is provided on how to establish the publication date, including considerations that may lead to shifting the burden of proof between the party applying Internet disclosure as evidence of the state of the art and the party contesting the same.
The reliability of various types of disclosures on the Internet as evidence of prior publication is addressed, including presumptions favoring the use of online technical journals, eprint archives, company literature, and less traditional sources, such as wiki pages and blogs. Suggestions are provided for how to deal with problematic cases such as disclosures with no (visible) date, framing, links, and non-persistent Internet addresses.
A growing percentage of information enters the public domain first, and sometimes solely, via the Internet. While use of Internet disclosures in EPO proceedings is not new, the new guidelines facilitate reliance on Internet disclosures as prior art by providing greater predictability on how they will be treated by the EPO.
An increase in predictability is expected not only in the context of defending your claims during patent examination, but also when using Internet disclosures offensively as prior art during opposition proceedings, where the new guidelines may arguably be considered instructive by analogy.
If you have not been doing so already, we would encourage you to include a prior art search on the Web when preparing for your next EPO opposition proceeding. It”s fast. It”s cheap. And it just might turn up something useful.