T 1050/12 Public availability, enablement for medicines
Public availability
In this opposition appeal, a discussion took place on when a document was seen as being publically available when made available in a library. The opponent/appellant cited T 834/09 in support of arguments concerning the public availability of documents D3 and D7, The proprietor saw this decision as being divergent from the earlier case law and represented a conceptual shift by promoting the librarian to a member of the public (and not just a person making it available to the puiblic by putting it in the library at a possibly later moment).
The board comes to the conclusion that there is evidence on file supporting the conclusion that the document was made available to the public in general (i.e. the users of three libraries) before the priority date. This was the case regardless of whether or not the librarian was a member of the public. Accordingly, even if the board were to come to the conclusion that there was divergent case law as regards the status of a librarian as a member of the public, it would still be able to reach a decision in the present case without the need for an answer on this point from the Enlarged Board of Appeal.
Level of proof
The Board does not want to go into a discussion on which level of proof is most appropriate in this case ('on the balance of probability' or 'up to the hilt') but applies the concept that what matters is whether or not the deciding body, is - having regard to all evidence and arguments put forward by the parties - convinced that the alleged facts, i.e. the public availability of the documents prior to the priority date, have indeed occurred.
Enablement for medical use claims.
The proprietor argued that D3's disclosure was not enabling for the claimed medical use, because it only disclosed preliminary experiments for which it lacked many details, and it only hypothesised on a therapeutic effect. Contrary thereto, the patent provided data which made the therapeutic effect plausible. The board notes that enablement of disclosure for medical uses does not require that a therapeutic effect is demonstrated in vivo but rather that it is made plausible (T 609/02, reasons 9). The Board concluded that, while D3 does indeed not show that injected myoblasts as claimed do exert a therapeutic effect in the context of stress urinary incontinence, it nevertheless does provide data and information which render said therapeutic effect plausible.
Catchwords:
Meeting abstracts published in a supplement to a regular volume of a scientific journal found to be publicly available before the priority date of the patent on the basis of library date-stamps and accompanying declarations of the librarians.
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