Europe Determines When Email Disclosures Can Be Prior Art

Summary and implications

The European Patent Office Technical Board of Appeal has ruled on what is increasingly an important component of the evidence forming prior art attacks, namely alleged disclosures by email.¹ The precedent-conferring status of the TBA means that this is a significant decision both for EPO oppositions and for litigation in national courts across Europe.

The TBA has held that contents of an email do not automatically become publicly available and form part of the prior art as a result of the transmission of the relevant email. This is irrespective of whether the email was encrypted or not, and of whether or not the emails were publicly available because they could have been lawfully intercepted by an internet service provider or by law enforcement personnel.