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Public availability of emails

Public availability of emails

31/08/12

Recent Board of Appeal Decision T 0002/09 at the EPO considered the question of the public availability of email traffic transmitted via the internet.

This question arose during opposition proceedings, seemingly filed as a test case, in which both parties to the opposition appealed the decision to maintain the patent in amended form. The opponent had relied upon an alleged disclosure by an e-mail transmitted by the internet  as  prior art.

While the Board of Appeal ruled that an opposition filed within the framework of a test case is not inadmissible for that sole reason, provided that the proceedings are contentious due to the parties defending mainly opposing positions, on the question of public availability of an e-mail sent via the Internet, it ruled that the content of an e-mail did not become available to the public within the meaning of Art. 54(2) for the sole reason that it was transmitted via the Internet before the effective filing date of the application.