Internet-hosted prior art and proof of publication: UK not bound by EPO level of proof

In a recent hearing concerning a UK patent application, Ranger Services Ltd's application, BL O/362/09, 17 November 2009, Hearing Officer Lawrence Cullen was faced with a question relating to the status of cited prior art which had been obtained from an internet archive. Rejecting the application before him, which was for a system of using an automatic number plate recognition system to detect cloned vehicle number plates, he considered that the current European Patent Office guidelines [see earlier IPKat post here] would suggest that the cited prior art should be taken into account. In doing so, he rejected the applicant's submission that the EPO's guidelines demanded proof beyond reasonable doubt as to the date on which the cited prior art was made available to the public. While it was relevant and appropriate to take note of EPO practice, Dr Cullen said, it wasn't binding in the United Kingdom, where the civil proof merely required that facts be established on the balance of probabilities:

"While it is relevant and appropriate for me to take note of EPO practice in such matters, it does not bind me in the way that UK law does. The maxim of the English Courts in civil matters is that the correct assessment to be made is on the “balance of probabilities”, whereas in criminal matters, it is one of “proof beyond reasonable doubt”. In this case, the recent EPO note would appear to support that this view, despite Mr Hirsz’s argument to the contrary, and I must therefore decide the issue on “the balance of probabilities”" (para.47).

The IPKat notes that, even if the cited prior art had been excluded, the patent application would still have failed under the Patents Act 1977, s.1(2) since the invention concerned the performance of a mental act and/or a computer program as such, both of which are excluded subject-matter everywhere in Europe. Merpel wonders, what is the standard of proof in other jurisdictions? There really should be consistency as between patent-granting regimes and this is just the sort of question where a conveniently arbitrary ruling for all might be handy.

What to do if your vehicle has been cloned here