Since there are no direct legal rules about how a strategic publication is to be made in order to be legally effective, various requirements have arisen from an overall consideration of the case law relating to this subject. A number of decisions which deal with this subject-matter are cited below:

T 381/87 of 10.10.1988

This case dealt with the availability to the public of an article which had appeared in the journal "Chemical Communications". A patent application was refused for a lack of novelty on account of the article. The Board of Appeal decided that the journal became available to the public on the date on which it became able to be inspected in a single library by any person on request. It was neither entered in the register of the library nor placed on the open shelves of the library to allow inspection. The judges emphasized that the availability to the public of a document is not dependent on whether a member of the public actually knew or was aware of the availability of the document. The Board of Appeal further stated that the journal Chemical Communications is a publication which is issued regularly and contains up-to-date articles about chemistry, which is intended "as a forum for preliminary accounts of original and significant work in any area of chemistry", and which is known as such.

T 444/88 of 9.5.1990

In this case, an exemplary embodiment which was contained in a Japanese patent application stood in the way of patentability. However, at the time of the publication of the application, the relevant exemplary embodiment was not yet included in the application documents. It was only added to the documents three years after the publication of the application, by way of an amendment to the application. And the documents were only actually looked at for the first time a further year later. In the opinion of the Board of Appeal, the exemplary embodiment likewise became available to the public on the date on which it was added to the patent application, because all that was relevant was that the document was actually available at that point and not when the documents were actually looked at for the first time.

T 314/99 of 21.06.2001

The Board of Appeal found that a Diplomarbeit (degree dissertation) did not by its mere arrival in the archive of the Hamburg University Chemistry Department Library become publicly available, since that did not mean that it was as of that point in time catalogued or otherwise prepared for the public to acquire knowledge of it, and because without such means of information the public would remain unaware of its existence.

T186/01 of 25.10.2002

A work report by the Bundesforschungsanstalt für Landwirtschaft [Federal Research Institute for Agriculture] was not deemed to be publicly available because only its arrival in the library archive, but not its cataloguing or other type of preparation to allow the public to acquire knowledge of it, could be proved.

The case of I.C.E. Corp. v. Armco Steel Corp., 1966 (US District Court SDNY)

In the case of I.C.E. Corp v Armco Steel Corp., the New York District Court held that, in order for a finding to be made that a document was available to the public, it had to have been made available to a person ordinarily skilled in the subject matter or art. However, a document is only available to the public if the means of disclosure can be located exercising reasonable diligence ("[...] exercising reasonable diligence, can locate it [...]"). For a document to be publicly available, it is not necessary for someone to have actually become aware of the disclosed information.

Case: In re Bayer, 1978 (CCPA, US Court of Customs and Patent Appeals)

In this case the CCPA decided that a document was publicly accessible even if only part of the public has access to the document, as long as there is a justified presumption that specialist circles could have been aware of the document. Then, however, if the probability that a document will be found is near to zero, it must be concluded that it is not publicly accessible. The accessibility to the public of a Masters thesis which, although it had been received in a library, had been neither indexed, catalogued nor placed on the shelves, is cited. However, three members of the examination committee knew of the existence of the Masters thesis and could legitimately have passed on this knowledge to third parties at any time. Here, the Court decided that there was no accessibility to the public, as the actual likelihood of the document being found was close to zero.

Case: In re Hall, 1986 (CCPA, US Court of Appeals for the Federal Circuit)

In this case, in which a single copy of a doctoral dissertation was placed on the shelves of Freiburg University Library and was indexed in the catalogue of dissertations, the CAFC held that this document was publicly available as it presumed that the specialist circles could have been aware of the dissertation.