T 564/12: proving public prior-use
In this opposition appeal there is initially an interesting discussion about the admissibility of two prior-use cases. The Appellant-proprietor asks the Board to declare these prior-use cases retroactively as non-admissible. Furthermore, the Appellant-proprietor is of the opinion that an author of one of the filed affidavits in one of these prior-use cases should have been called as a witness. According to the Appellant-proprietor, the affidavit should be excluded because the opposition Division did not call this author as a witness.
The board decides that the prior-use cases are admissible. In general, it is quite difficult to prove public prior-use - the questions "what was disclosed", "when", "where"and "under which circumstances" must be answered. In this case quite a lot of evidence was filed by the Appellant-opponent - it was already filed during the opposition proceedings. This Board extensively examines the evidence to decide whether the prior use is proven or not. If you are interested in the prior-use reasonings, you should read the complete text that is provided below.
The invention relates to a lid of a snuff-box. I found it also interesting to see that the PCT publication of this case has only a 2 page description and has 5 claims in total. The limited amount of words written down in the original patent application have been compensated by all the documents drawn up during the opposition and appeal procedure.
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