Zusammenfassung von EPC2000 Art 117 für die Entscheidung T1138/20 vom 25.04.2023

In T 1138/20, the main question was whether the opposition division had correctly found that NPL1 was made available to the public. The appellant (patent proprietor) challenged the opposition division's findings of fact that NPL1 was the presentation that had been delivered to the European Space Agency (ESA) and then published on its website. On whether NPL1 was indeed prior art within the meaning of Art. 54(2) EPC, the appellant and the opposition division were of the opinion that the facts had to be proven "beyond reasonable doubt"; the appellant had no involvement in the alleged events. The board noted that, for the issue concerning whether evidence demonstrates the prior art's availability to the public, sometimes the standard of "balance of probabilities" and sometimes the standard of "beyond reasonable doubt" or "up to the hilt" is applied in the jurisprudence of the Boards of Appeal. The present board considered that making a distinction between the above-mentioned standards was neither necessary nor mandated by case law (in line with T 545/08, T 768/20, T 660/16, T 1634/17). If only the opponent had access to the relevant evidence, this fact had to be given due consideration in the deciding body's assessment as to what weight and importance are to be attached to such evidence. This was not the same as to say that a different standard of proof should apply. Therefore, the board considered that there is only one standard of proof in the proceedings before the EPO: the deciding body, taking into account the circumstances of the case and the relevant evidence before it, must be convinced that the alleged fact has occurred. The evaluation of evidence was the genuine task of the trier of fact, that is, the deciding body that establishes the facts of a case; in the context of the EPC, the departments of first instance and the boards of appeal. Evidence is to be assessed in accordance with the principle of the free evaluation of evidence. Whether or not a fact can be regarded as proven has to be assessed on the basis of all the relevant evidence on file. The deciding body that establishes the facts of the case has to weigh all relevant evidence before it. In this regard, the first instance is the first deciding body competent to undertake this task. Depth and detail of such finding varied and in particular depended on whether or not certain facts were disputed. As with any other findings of a deciding body, a finding of fact must be reasoned (see e.g. G 2/21, point 31 of the Reasons). This was particularly important if there was contradictory evidence on file. Then, the process of weighing the different pieces of evidence must be properly reflected in the reasoning of the final decision. Concerning their competence the boards have the power, at any stage of the appeal proceedings, to establish the relevant facts of the case before them and thereby substitute the findings of fact of the departments of first instance. However, the boards have no obligation to establish facts de novo already established by the departments of first instance. The review of findings of fact had simply nothing to do with the review of discretionary decisions. Discretionary decisions could only be reviewed for a particular type of errors (cf. G 7/93, point 2.6 of the Reasons), while a review of findings of fact had no such limitation. The board also said that the burden is on the party challenging a fact on appeal to demonstrate that the first-instance department erred in its finding of fact. For demonstrating an error in the fact-finding process, it will generally not be sufficient to argue on appeal that the evidence on file would have allowed a different conclusion and that this conclusion was equally likely, plausible or reasonable. Rather, in order to show an error, the party must demonstrate that no body competent to establish the facts and acting in a reasonable way could have come to this conclusion. In such a situation, the contesting party may successfully allege on appeal that the first- instance department did not fulfil its duty of giving reasons for its finding of fact. The boards may also at any stage of the appeal proceedings decide to establish the facts on their own motion - even if no error was demonstrated by a party. And concerning reviewing errors in the fact-finding process, the boards have full competence to review findings of fact, and reference was made to T 42/19 and T 1604/16 (among others). The board decided that the appellant had failed to demonstrate an error and it saw no reason to overturn the finding of the opposition division.