13.07.2021: BGH decision on discoverability by search engines and the state of the art on the Internet
In connection with invalidity proceedings in the mobile communications sector ("Discontinuous Radio Link"), the issue was, among other things, an electronic document stored on an ftp server and retrievable there, which could not be found on the priority date with the help of usual search engines because it had only been stored as a zip archive. This raised the question of what is considered to be 'publicly accessible' on the Internet, and thus noteworthy as prior art within the meaning of the Patent Act.
The BGH ruled that the electronic document was available for retrieval on the ftp server and was thus 'publicly accessible'. It was not mandatory that the document could be found by entering suitable search terms via a search engine in order to be considered 'publicly accessible'.
The BGH did not provide a generally applicable answer to the question of whether every document available on the Internet is deemed to be 'publicly accessible' without further ado or whether additional means are required to enable accessibility.
Practical tip:
The exchange of data and documents as well as communication via the Internet should always be checked and set up to determine whether publication is desired or should be prevented. Should a so-called defensive publication be achieved, with which a patenting of the ideas by third parties is avoided, a wide or unrestricted access should be ensured, whereby it also does not depend on a significant visibility or easy discoverability.