• Skip to main content
  • Skip to primary sidebar
  • Skip to footer
+49 (0) 69 / 606 278 – 0
[email protected]
Contact form
Patent- & Rechtsanwaltskanzlei

Patent- & Rechtsanwaltskanzlei

  • Deutsch

+49 (0) 69 / 606 278 – 0

  • Facebook
  • Twitter
  • Instagram
  • LinkedIn
  • xing
  • Email
MENUMENU
  • Services
    • Advice On Protective IP Rights
    • Patent Application /TM Registration
    • Enforcement Of IP Rights
    • Defence Against IP Rights Enforcement
    • Costs
  • Company
    • Fields of Law
      • Patent Law
      • Utility Model Law
      • Employees‘ Inventions
      • Trademark Law
      • Design Law
      • Trademark and Product Piracy
      • Expert Opinions
    • Our Law Firm
      • Dr. Karl-Hermann Meyer-Dulheuer
      • Dr. Tim Meyer-Dulheuer
      • Dr. Klaus Zimmermann
      • Zhichao Ying
      • Dr. Christoph Hölscher
    • Commitment
  • Contact
    • Where To Find Us
    • Write us!
    • Request call back
  • Blog

Time zones and state of the art on priority day

10. September 2019

Is a prior art published online relevant for a patent application, for which this publication was already considered a new day in Europe, but still a day before in Alaska and Hawaii? A ruling of the BGH on time zones and prior art on the priority day.

Patent law was conceived at a time when the Internet and fast, worldwide Internet publications were still unthinkable. In an analogue world, the process is clear: priority can be given to a patent application if the invention is technical and new. This applies to German patent law as well as to European patent law.

According to Art. 54(2) in conjunction with Art. 89 EPC (European Patent Convention), what has been made available to the public by written or oral description, by use or in any other way before the filing date or the priority date of the European patent application constitutes the state of the art.

Jurisprudence inconsistent on time zones and time of publication

This rule refers to the calendar day of the patent application, the hour or minute of filing is irrelevant. What is unique in an analogue world is uneven due to the digital publishing possibilities. In view of the different time zones, different reference times have been used in case law and administrative practice for the time of publication of the state of the art.

The date of a public publication within the meaning of Art. 54(2) EPC has been set aside:

  1. The time zone applicable at the place of filing of the patent or priority application (Opposition Division of the EUIPO and the High Court of England and Wales)
  2. Whether the citation was available on the Internet in any time zone on the day before the filing or priority date (Examination Division of EUIPO)

Both approaches have their justification, which the Federal Supreme Court also acknowledged in its judgment.
In favour of the approach mentioned under A), the BGH stated that the consistent use of the time zone of the patent office at which the patent or priority application was filed rules out the possibility that a citation which had not been published before this period could constitute prior art.
However, for this approach it is necessary that the exact time of publication must be determined, especially for publications in other time zones – because 8.36 Central European Time [CET] on 8 January is simultaneously in Alaska at 22.36 [Yukon time] on 7 January and in Hawaii at 21.36 to Hawaii standard time, also on 7 January.

In the event of a dispute, however, the approach mentioned under B) had the consequence that publications also belonged to the state of the art, although in principle they were only considered to have been published at the patent office there one day later, since the publication could also be retrieved via the Internet in Alaska or Hawaii after the time applicable there on the day before filing of the priority application.

BGH rejects extension to all time zones

The BGH rejected an extension of the reference frame from the time zone at which the publication action took place to all time zones without any reference to the publication action.

The Federal Court of Justice therefore recalled the fundamental idea of the Paris Convention. Accordingly, the exact time and thus also the ratio of the calendar days applicable at different reference places is irrelevant in each case – and thus also permits a publication to have taken place at a certain place on a certain calendar day (after the time zone applicable after this place) lying before the filing date at its count. Alternatively, the time zone applicable at the place where the act took place, with which the technical teaching was made accessible to the public, could also be used as a yardstick for determining the time of the prior publication.

Public accessibility for the experts

For this reason, the Federal Court of Justice ruled that the best way to make a technical teaching available to the public via a medium such as the Internet that enables immediate worldwide availability is to take account of the place and time zone where the action leading to the public accessibility of technical information for the professional world takes place, also corresponds best to the Paris Convention.

Leading decision

“A technical teaching which is made available to the public by being uploaded to a web server and made available to the general public or to part of the professional public worldwide via the Internet shall not constitute prior art if, at the time of upload, the priority or filing date had not yet started in a time zone other than that of the uploading location”. (Quoted and translated from the ruling of the BGH, Akz. X ZR 14/17.)

With this ruling, the BGH has stated an important decision which remedies the legal uncertainty in the classification of time zones and the state of the art on the filing date or priority date – at least in German patent law.

Do you need help or support in a patent application for Germany or International?

Our lawyers are experienced in trademark and patent law, national and international law.

 

 

 

Sources: 

Urteil des BGH X ZR 14/17

Image:

geralt / pixabay.com / CCO License

  • share  22 
  • share 
  • share 
  • tweet 
  • share 

Category iconPatent Law Tag iconpatent law,  time of publication,  publication,  extension to all time zones,  leading decision,  publicly accessible,  online,  Art. 54 para. 2 EPC,  priority date,  exact time,  BGH,  prior art,  calendar day,  technical doctrine,  time zone,  time zones,  other time zone,  EPC,  published on the Internet,  published prior art online,  European Patent Convention,  filing date,  Patent Application,  web server uploaded

Reader Interactions

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Primary Sidebar

More articles about: Patent Law

All articles

Blog Menu

  • Design Law
  • Healthcare & Lifesciences
  • International Intellectual Property
  • Licenses
  • News from our law firm
  • Overall
  • Patent Law
  • Product- and Trademark piracy
  • Trademark Law

Recent Posts

  • BPatG: Patent claim of cancer drug on active substance as salt 7. March 2022
  • Grant for European IP Protection: SME Fund 2022 4. March 2022
  • CODE-X vs. Cody’s: Likelihood of confusion in drinks? 25. February 2022
  • EOS lip balm no 3D trademark – appeal before ECJ not admissible 24. February 2022

Fields of Law

  • Patent Law
  • Utility Model Law
  • Employees’ Inventions
  • Trademark Law
  • Design Law
  • Trademark and Product Piracy
  • Expert Opinions
  • Costs

Das könnte Sie auch interessieren:

4. March 2022
Grant for European IP Protection: SME Fund 2022

Grant for European IP Protection: SME Fund 2022

22. February 2022
PAP is in force: UPC possible in 2022

PAP is in force: UPC possible in 2022

8. February 2022
Germany: Value in dispute and costs in proceedings

Germany: Value in dispute and costs in proceedings

3. February 2022
PCT application – does the principle of joint applicants apply?

PCT application – does the principle of joint applicants apply?

1. February 2022
Proof of patent infringement by whistleblower

Proof of patent infringement by whistleblower

19. January 2022
Computer Data identification declared invalid

Computer Data identification declared invalid

Contact us or request a call back

+49 (0) 69 / 606 278 – 0
[email protected]
Request a call back

Footer

Contact

Torhaus Westhafen
Speicherstrasse 59
D – 60327 Frankfurt am Main
Deutschland
+49 (0) 69 / 606 278 – 0
+49 (0) 69 / 606 278 – 199
[email protected]

Office Hours
Moday – Friday:   08:00-18:00

Fields of Law

  • Patent Law
  • Utility Model Law
  • Employees’ Inventions
  • Trademark Law
  • Design Law
  • Trademark and Product Piracy
  • Expert Opinions
  • Costs

Law Firm

  • Request non-binding call back
  • Company
  • Our Law Firm
  • ISO Certificate
  • Privacy Policy
  • Data handling for clients
  • Imprint

Follow Us

  • Facebook
  • Twitter
  • LinkedIn
  • xing
  • Email

Newsletter Signup

© Patent- & Rechtsanwaltskanzlei Meyer-Dulheuer MD Legal Patentanwälte PartG mbB

Contact Form

 

Give us a call, send us an email or fill out the contact form.

+49 (0) 69 / 606 278 – 0
[email protected]

Kontaktformular

 

Rufen Sie uns an, schicken Sie uns eine Mail oder füllen Sie das Kontaktformular aus.

+49 (0) 69 / 606 278 – 0
[email protected]