6. Distinction between presentation of facts and evidence and presentation of arguments

In G 4/95 the Enlarged Board noted that the distinction between the presentation of facts and evidence, on the one hand, and the presentation of arguments, on the other hand, was of basic importance under the EPC. It noted, as discussed in T 843/91 (OJ 1994, 818), a practice developed in the boards of appeal "to allow contributions by experts under the control of the authorised representative when it considers it would be useful for the good understanding of the case", thus mirroring the practice within the opposition division. In decision T 843/91 it was suggested that the legal basis for admitting such oral submissions by "experts" was Art. 117 EPC 1973. In this connection, the Enlarged Board did not accept that Art. 117 EPC 1973 provided a legal basis for hearing oral submissions by an accompanying person involving the presentation of facts and evidence, as was suggested in decision T 843/91 for example. Art. 117 EPC 1973 and its implementing rules, R. 72 to R. 76 EPC 1973, were solely concerned with setting out the procedure relevant to the formal "taking of evidence". Such procedure necessarily involved as a precondition for its use the making of a decision to take evidence within the meaning of Art. 117 EPC 1973, and that decision had to set out all the matters prescribed in R. 72(1) EPC 1973, as the first stage in the procedure.

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