Zusammenfassung von Rule 117 EPC für die Entscheidung T1283/22 vom 16.10.2025

In T 1283/22 the board held that while the amending of R. 117 EPC to allow for hearing witnesses by videoconference may have been occasioned by a particular situation (in this case the pandemic), the wording of R. 117 EPC does not limit its application to a pandemic or similar exceptional situation. It thus applies irrespective of whether the situation which led to it being amended persists. On the applicability of G 1/21, the board stated the following: The board is not aware of any statement by the Enlarged Board in G 1/21 that would be even indirectly – let alone directly – applicable to hearing a witness. G 1/21 examines parties' procedural rights, such as the right to be heard, and examines the definition of oral proceedings for the purposes of Art. 116 EPC. Its statement concerning the "gold standard" has to be taken in that context. The procedural situation of a witness is not comparable with that of the parties. As the witness is presumed to be unaffected by the outcome of the proceedings, their position in the proceedings is neutral. The purpose of hearing the witness is to obtain from them any relevant technical information, including any further information about them that may support (or undermine) the veracity of their statements. As the board understood it, the appellant argued that any witness statements made during a videoconference that may leave room for doubt were inherently unsuitable as evidence, given that their veracity could not be judged in the same way as at an in-person hearing. This argument essentially boiled down to the frequently raised yet fundamentally flawed reasoning that some evidence submitted by a party was not sufficiently convincing for the purposes of "up-to-the-hilt" proof, since better evidence was conceivable. The proposition that a witness statement was inherently unsuitable as evidence unless the witness was heard in person was also plainly inconsistent with the principle of free evaluation of evidence. As the Enlarged Board set out in G 2/21, points 27 to 34 of the Reasons, this principle applies in proceedings before the EPO and implies that there are no formal rules excluding any admissibly raised evidence. In the case in hand, this would mean excluding the offered witness statement because the witness was heard by videoconference. This argument by the appellant would effectively imply the formal rule – without any basis in the EPC – that a witness statement could only serve as evidence if the witness is heard at an in-person hearing. The board did not question that, in principle, witness statements must not be influenced in any way that may distort the truth, i.e. the facts sought to be proven with the witness. However, this was nothing more than an ideal that was practically impossible to achieve, regardless of whether the witness was heard by videoconference or in person. Thus, any expectation that the witness would take part in the proceedings with absolutely no idea about the subject of the proceedings and the relevant technical issues was wholly unrealistic, irrespective of how the witness was heard, i.e. by videoconference or in person. In summary, the board saw no reason why hearing witnesses by videoconference would be unsuitable or incompatible with the Convention. In view of the above, the board was of the opinion that, contrary to the appellant's submissions, there were no serious reasons that would have required the opposition division to grant the appellant's late-filed request to hold the oral proceedings and hear the witness in person on the premises of the EPO. The opposition division's discretionary decision (see decision G 1/21, point 50 of the Reasons) to refuse the request for the oral proceedings by videoconference to be adjourned and for the oral proceedings to be held and the witness to be heard on the premises of the EPO was not at odds with decision G 1/21. The question of whether the principles laid out in G 1/21 also applied to a department of first instance could be left open. The above conclusions were reached on the assumption that G 1/21 was binding for the departments of first instance but would apply a fortiori if this were considered not to be the case. Thus, the opposition division's conduct of the proceedings was correct, irrespective of whether the principles laid out in G 1/21 also applied to an EPO department of first instance. The board considered that decision G 1/21 and the settled case law of the boards of appeal gave sufficient guidance for the case in hand, so the appellant's request for a referral to the Enlarged Board was refused.