3.23 A disclosure becomes part of the state of the art on the date it first becomes available to the public. Notably, the Act does not place any requirements on the age of the disclosure, the location of the disclosure, the type of disclosure (paper or electronic), or the language of publication.

3.24 Communication to a single member of the public without inhibiting fetter is enough to amount to making available to the public (Bristol-Myers Co’s Application [1969] RPC 146). Similarly, in Monsanto (Brignac’s) Application [1971] RPC 153, the Court held that the company had published a document by supplying it to its salesmen without a restriction on disclosure.

3.25 A document is available to the public even if a fee is required to view it. Furthermore, there is no need to show that the document has actually been read by a member of the public – a document is regarded as having been published provided it can be inspected as of right by the public. Guidance in the Singapore context was given by Tay Yong Kwang J in Insitutut Pasteur v Genelabs Diagnostics Pte Ltd [2000] SGHC 53 at [188]:

“The law concerning anticipation is strict to the patentee and to the challenger of the patent. A claim is invalid if it covers any item of the prior art which has been disclosed to anyone (except in confidence), by any means (written or oral or by use), anywhere in the world, at any time in history (before the priority date). Even availability to a single member of the public will suffice. Similarly, availability to the public is satisfied if the document can be found on the shelves of a public library. It is irrelevant whether anyone knew it was available or had inspected it. [Vitoria, Encyclopedia of United Kingdom and European Patent Law] Anticipation can therefore encompass a disclosure which the inventor was totally ignorant of.”

3.26 If a publication date is present upon a document (for example the publication date on a patent or journal article), then this is assumed to be the date of publication. In the event that this date is disputed by the applicant then evidence to the contrary will be required. Internet dates and the like may be problematic but in general, if a date is associated with the web page it may be considered the actual date of publication. On the other hand, if the web page itself does not explicitly indicate a publication date, Examiners may utilize Internet archiving databases such as the “WayBack Machine” on to provide evidence of when the web page was published.

3.27 Disclosures, such as conference proceedings published before the relevant priority date may be used as a basis for a novelty objection. In the absence of evidence to the contrary, it may be assumed that the proceedings are an accurate reflection of the content of the lecture or public disclosure.

3.28 Generally, the Act does not require consideration of the actual time that a document was published when establishing whether or not the document forms part of the state of the art; Section 14 merely specifies that the state of the art constitutes all matter made available to the public before the priority date of the invention. However, in the case where a publication date is close to the priority date, the time zone of publication may be important to interpret the publication date. This is particularly pertinent to internet disclosures, which are made available to the public simultaneously worldwide at the point of publication. Hence, because of the difference in time zones, it is conceivable that a particular internet disclosure may have a different publication date in a different part of the world. It would therefore be necessary to consider a frame of reference in determining the publication date of such a disclosure.

3.29 In Unwired Planet v Huawei and Samsung [2015] EWHC 3366 (Pat), it was held that for the purposes of Section 2(2) of the UK Patents Act 1977, the equivalent provision to Section 14(2), the frame of reference should be the time zone of the patent office at which the priority document was filed. For example, in relation to a Singapore patent application which claims priority to a US patent application filed at the USPTO (GMT -5) on 7 Feburary 2015, an internet disclosure on 7 Feburary 2015 at 9 a.m. Singapore time (GMT +8) would constitute the state of the art under Section 1 (2), since the publication date of said disclosure would have been 6 Feburary 2015 at GMT -5, which is before the date on which the priority document was filed.

3.30 The prior art disclosure must be a single document. Lack of novelty cannot be argued on a mosaic of documents; an obviousness objection may be appropriate in such cases. However, two separate documents may be read as though they were a single document if the person skilled in the art would take them to be such a disclosure. This was stated by Tay Yong Kwang J in Insitutut Pasteur v Genelabs Diagnostics Pte Ltd [2000] SGHC 53 at [190]:

“Anticipation must be found within the document alleged to have anticipated the invention. It is not permissible to combine the teachings of two or more documents except where one of these directs the reader to study the other. One cannot create a ‘mosaic of extracts’ from documents spread over a number of years [Von Heydon v Neustadt, (1880) 50 LJ Ch. 126]. Similarly, ‘it is not open to you to take a packet of prior documents and by putting a puzzle together produce what you say is a disclosure in the nature of a combination of the various elements which have been contained in the prior documents. … it is necessary to point to a clear and specific disclosure of something which is said to be like the patentee’s invention’ [Lowndes’ Patent, (1928) 45 RPC 48].”

3.31 Nevertheless, it should be noted that the mere presence of a cross reference in a cited document to a second document is not sufficient indication that the two may be read together. It should be established that the cross-reference necessitates that part or all of the disclosure of the second referenced document be considered as part of the disclosure of the cited document. The use of expressions such as “incorporated by reference” when referring to the second document in the cited document may suggest such necessity. For example, a cited document may refer explicitly to a second document as being incorporated by reference for providing more detailed information on certain features identified in the cited document. In this case, the teaching of the second referenced document would be regarded as part of the disclosure of the cited document for the purposes of enablement, only if the second referenced document was also available to the public at the publication date of the cited document. This is because, for the purposes of novelty, the cited document must provide a sufficient disclosure at its date of publication.