02/04/2025
Most prior art submitted in EPO oppositions is written prior art. However, online videos are becoming an increasingly common source of technical information. And if a picture is worth a thousand words, who knows what a video is worth? One thing we do know is that the right online videos can certainly be worth submitting in EPO oppositions. In this blog, we discuss our view on the best practice for such submissions based on recent experience.
Recent experience
In a recent opposition involving Reddie & Grose, an online video was cited as prior art by two opponents. Specifically, a URL to a YouTube video was provided in each opponent’s notice of opposition. However, after filing the notices of opposition, the video was deleted from YouTube so was no longer accessible at the URL. The opposition division noted this in their preliminary opinion. In response, one of the opponents uploaded the video to Google Drive and provided a new URL to allow the patentee and the opposition division to download and watch the video.
Later, at the oral proceedings, the opposition division decided that the opponents providing the URL to the YouTube video in their notices of opposition, rather than posting a physical carrier with the video on to the EPO, was a choice made by the opponents, and that choice meant that:
- the task of actively accessing the video was imposed on the division and the patentee;
- access to the video was made contingent on the continued availability of the video at the URL, which the opponents were not in a position to guarantee; and
- accessing the video could be hindered by optical character recognition errors (because the URL contained similar-looking characters).
The opposition division also noted that points 1 and 3 above applied to the provision by one of the opponents of the new URL to the video on Google Drive.
In view of this, the opposition division decided that the video was late-filed and it was not admitted into proceedings.
Notably, however, screenshots from the video which were included in the notices of opposition were considered to have been filed on time and were admitted into proceedings.
Best practice
In view of the case discussed above, we suggest that opponents citing an online video as prior art not only provide a URL to allow access to the video, but also download the video onto a physical carrier and post the physical carrier to the EPO.
We also suggest that opponents include any particularly relevant screenshots from the video in their notices of opposition. This is because, like in the case discussed above, such screenshots may be treated as separate evidence to the video itself. So, even if the video is not admitted, the screenshots may still be admitted.
Reddie & Grose have extensive experience working with professional searchers to find videos for use as prior art, and in subsequently presenting or defending against attacks using videos as prior art. So if you’d like more information on the use of videos in oppositions, contact a Reddie & Grose attorney.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
