01 July 2023
Videos published on the internet are an increasingly common source of technical information and are used by companies in the same way that marketing literature, user manuals, and educational content have been for some time.
The EPO’s register, and the manner in which evidence is submitted to the EPO, is generally not capable of either receiving video evidence other than by means of a URL.
If decisions of the EPO are to be subject to proper review on appeal, or are to be made properly available to the public, then this problem needs to be solved. The recent update to the EPO Guidelines went some way to address this issue for applications under Examination, but the question of how to deal with it in EPO Oppositions seems to remain open.
The 2023 update to the Guidelines (B-X-11.6 and G-VII-7.5.6) was related to a decision of a Technical Board of Appeal of the EPO in T 3000/19. In that case, the evidence cited by the Examining Division of the EPO in refusing an application was an internet video. The Examining Division cited the URL, gave a screenshot, and quoted some text from the video. They also cited certain video frames by reference to their time stamps. By the time of the appeal, the video in question was no longer available on the internet.
The Board found that the material available on the file “does not provide sufficient evidence to allow the Board to make its own assessment of the relevant evidence.” In explaining that this was unsatisfactory, the Board set out the requirements which should apply to such evidence by reference to the Guidelines of the Committee of Ministers to member states on electronic evidence in civil and administrative proceedings, a publication of the European Commission.
The Board commented that, such evidence “should be collected in an appropriate and secure manner, and submitted to courts using reliable services such as trust services” and using procedures established by member states for the secure seizure and collection of digital evidence.” They also made reference to the need to store such video evidence with standardised metadata and evidence demonstrating when and how it was made available to the public.
Parties wishing to rely on video evidence obtained from the internet, for example in Opposition Proceedings, clearly need to address these issues but the Guidelines do not say how. Opponents should consider creating a secure and verifiable archive of the evidence provided by an internet video disclosure.
They should also ensure that they have some means of verifying that the content of their archive matches the content of the internet video disclosure in case it is later changed or removed from the internet altogether.
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