Zusammenfassung von EPC2000 Art 117 für die Entscheidung T0042/19 vom 19.01.2023

In T 42/19 the board summarised in its catchword the extent to which the board's power extended to reviewing the first instance decision in respect of the evaluation of evidence: "1. A board's power to review appealed decisions is not limited to points of law but extends to points of facts (in agreement with T 1604/16). 2. However, it is settled case law that a board is not obliged to take all the evidence anew and that parties do not have the right to have the taking of evidence repeated at their request before the board. 3. The principle of free evaluation of evidence, meaning that there are no firm rules on the probative value of the various types of evidence but that the deciding body is entrusted with weighing up all the evidence and basing its decision on what it is then satisfied has been established, implies a degree of freedom comparable to the one referred to by the Enlarged Board of Appeal in decision G 7/93, Reasons 2.6. 4. Thus, it is wise to similarly respect this freedom, especially when taking into account that a board, except when only reviewing documentary evidence, does not have the same first-hand impression of the probative value of a means of evidence as a department of first instance that has itself heard a witness or expert or inspected an object. 5. Although the board is not limited in its decision, it normally seems useful to apply the test set out in decision T 1418/17, Reasons 1.3: Unless the law has been misapplied (e.g. application of the wrong standard of proof), a board of appeal should overrule a department of first instance's evaluation of evidence and replace it with its own only if it is apparent from that department's evaluation that it: (i) disregarded essential points, (ii) also considered irrelevant matters or (iii) violated the laws of thought, for instance in the form of logical errors and contradictions in its reasoning. 6. The evaluation of evidence only refers to establishing whether an alleged fact has been proven to the satisfaction of the deciding body. The discretion-like freedom is restricted to this question and does not extend to the further question of how the established facts are to be interpreted and what the legal consequences are (see Reasons 3.2 to 3.6)." In the case at issue, the appellant (opponent) requested a reversal of the opposition division's decision that an alleged public prior use of an insulin injection device marked named GensuPen had not been sufficiently proven. The board recalled in its reasons the principles which can be found in the catchword above and also stated that the boards usually just reviewed the way in which the evidence was taken by the departments of first instance and, where they did not find any deficiencies, applied the law on the basis of the facts found in the decisions. A board, being a deciding body as well, was also entrusted with the weighing of evidence under the principle of free evaluation of evidence. As a consequence, it could not be excluded that a board might come to a different conclusion than the body that issued the impugned decision. But being under the obligation to give reasons for its decision, the board had to be able to convincingly demonstrate where the competent division had erred. In this respect the test set out in T 1418/17 gives valuable guidance. In the present case none of the circumstances which would justify a review could be identified in the first instance's reasoning. Notably, the balance of probabilities was the correct standard of proof. And concerning the witness Ms S., relevant information was completely missing (for example, in what capacity she had accessed the consultation room of the medical centre, the precise circumstances under which she had obtained the GensuPen, whether she was a member of the public, why she wrote on the same day a declaration that was used six years later), casting a shadow on the plausibility of her statement, and justified to the opposition division that the public prior use, even under the lower standard of proof of the balance of probabilities, was not sufficiently proven because the circumstances were not fully and clearly specified. This lack of factual basis did not substantially change with the new submissions in appeal proceedings. And without this fundamental information, it was irrelevant whether the burden of proof rested on the respondent (proprietor) that certain persons like hospital personal or patients in a study were bound by a confidentiality agreement. The board did not see any reason to overrule the decision concerning the alleged prior use of GensuPen and therefore confirmed the opposition division's conclusion. In exercise of the discretion provided by Art. 12(4) RPBA 2007, the board further decided to disregard the appellant's request to hear another witness submitted at the appeal stage to fill the gaps identified by the opposition division, since doubts and objections in this respect were already raised by the proprietor (respondent) during the written opposition proceedings.