4.3.5 Abusive conduct

In G 3/97 and G 4/97 (OJ 1999, 245 and 270) the Enlarged Board of Appeal held that if the person named as opponent according to R. 76(2)(a) EPC (former R. 55(a) EPC 1973) was acting on behalf of a third party, such an opposition was inadmissible only if the involvement of the opponent was to be regarded as circumventing the law by abuse of process. The deciding body had to be satisfied on the basis of clear and convincing evidence that the law had been circumvented by abuse of process.

In T 291/97 the appellant had contended in the statement of grounds of appeal that the publication of document (1) had occurred in consequence of an evident abuse within the meaning of Art. 55(1)(a) EPC, and thus did not constitute prior art citable against the claims at issue. The board decided that the above publication was to be taken into consideration for the application of Art. 54 EPC. It observed in its decision that the finding of an evident abuse under Art. 55(1)(a) EPC was a serious matter. An abuse was not lightly to be presumed. The standard of proof was identified by the words ”evident abuse” (German: ”offensichtlicher Missbrauch”; French: ”un abus évident”) as being high: the case had to be clear-cut, and a doubtful case would not be resolved in favour of the applicant. The evidence filed in the case at issue did not meet the standard that the board would consider appropriate, in particular in that virtually every declaration filed contained serious mis-statements that had subsequently been corrected, or the indicated mis-statements had not been relied on. That the errors had been corrected or not relied on was commendable, but left unresolved the problem of whether any part of such a statement could be relied on at all. The board also pointed out that in proceedings before the EPO it had to be possible to rely on the written evidence as having been checked with the facts; should that not be the case, the party in question would run the risk of having its evidence being disregarded as unreliable as a whole (see also T 41/02).

In D 5/86 (OJ 1989, 210), the board held that an infringement of the rules of professional conduct had to be established to the satisfaction of the disciplinary body before it could impose a disciplinary measure. Absolute certainty was not required, but a higher degree of probability which in human experience verged on certainty. A disciplinary measure could not be imposed if there was reasonable doubt as to whether the infringement had occurred.

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