In T 1764/06 the board noted that the only expressed distinction between the definition of the claimed photocatalyst and the photocatalyst of D1 relied on a parameter feature that was not usual, let alone common, for the skilled person. The board stated that, in these circumstances, the presumption that the claimed catalyst was not novel (as detailed throughout the examination and appeal proceedings), having regard to e.g. D1, had not been displaced by evidence. The onus of proof in that respect lay on the applicants, but no proven distinction had been shown. Consequently, the condition of Art. 52 EPC (... provided that they are new ...) was not fulfilled. As regards the benefit of the doubt, which in the applicant's view was to be accorded to applicants in complex situations without direct disclosure, the position of the board was that in a situation where the applicants have used an unusual parameter feature to define their product, which unusual parameter feature represents the only distinction over otherwise identical known products, and the applicants have decided not to provide evidence that the parameter feature as such represents a difference in the claimed products from the known products, no benefit of the doubt could be accorded.
In T 1920/09 the board stated that since the applicants had decided to formulate the definition of the invention by an unusual parameter, the onus was on them to convincingly establish novelty over the illustrated embodiments of D8. However, no evidence had been adduced by the applicants to discharge their burden of proof. The board therefore decided that the presumption that the claimed subject matter was not novel having regard to the disclosure of D8 had not been displaced by the evidence. No benefit of the doubt could be accorded in this respect (e.g. T 1764/06). Therefore, in the absence of convincing evidence, novelty could not be acknowledged.