Zusammenfassung von EPC2000 Art 117 für die Entscheidung T1311/21 vom 12.09.2024

See also abstract under Article 12(6) RPBA. In T 1311/21, concerning the public availability of the user manual E7, written by the company Sensors, Inc., the board addressed in detail the question of standard of proof. The board noted that neither of the two standards of proof "balance of probabilities" and "beyond reasonable doubt" was to be applied exclusively and without further reflection. The board also referred to the applicable standards when both parties have access to the evidence relating to the alleged prior use (balance of probabilities) compared to cases where evidence lies within the sphere of the opponent in the sense that the proprietor has barely any or no access to the evidence (up to the hilt). However, in certain cases, such as the present one, the board stated this binary approach to proof standards could turn out to be overly formalistic and simplistic. On the one hand, since E7 originated not from the opponent but from a third party, it could not simply be said that the evidence "lies within the sphere of the opponent". On the other hand, the arguments put forward by the patentee showed that there was an imbalance between the parties in the access to E7 and thus the possibility to establish whether E7 was part of the prior art, so that it could also not simply be said that both parties had access to this evidence. Actually, while the board concurred with the patentee that the evidence on the question of whether E7 was part of the prior art was not in a neutral sphere of control, inter alia due to the undisputed business relationship between the opponent and Sensors, Inc., the board was of the opinion that the patentee had had opportunities to search for counter-evidence. Since the user manual E7, whose public availability prior to the priority date of the patent was at issue, was neither within the sphere of control of the opponent nor within a neutral sphere of control to which both parties had access, the board was of the opinion that neither standard of proof was applicable. In fact, the present board agreed with the conclusions reached in the decisions T 1138/20 and T 1634/17. It therefore considered that, while the two standards of proof appearing in the jurisprudence of the boards of appeal may well be used as a yardstick in straightforward cases, what mattered, in plain language and as concluded in T 1138/20, was the deciding body's conviction on the occurrence of an alleged fact, taking into account the particular circumstances of the case and the relevant evidence before it (see Catchword 2.). The dispute between the parties about which exact standard of proof was to be applied to the present situation could be left undecided, and the board came to the conclusion after assessment of the evidence that it was sufficiently proven that E7 had actually been made available to the public prior to the priority date of the patent. The subject-matter of claim 1 was not novel in view of document E7 (Art. 54(1) EPC).