T 1138/20 (Reviewing findings of fact/VIASAT) vom 25.04.2023

Document NPL1 valid state of the art - (yes): public availability sufficiently proven
Standard of proof - conviction of the deciding body
Errors in the opposition division's fact-finding process - (no)
Novelty over NPL1
Novelty - main request and 1st auxiliary request (no)
Allowability of 2nd auxiliary request - (yes): prohibition of
reformatio in peius
Ramos Nunes de Carvalho e Sá v. Portugal2018

1. 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 (see point 1.2.1 of the Reasons).
2. 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 (see point 1.2.4 of the Reasons).
3. The board's review of a fact-finding process should not be conflated with the review of discretionary decisions within the meaning of the obiter dictum in G 7/93, Reasons 2.6 (see point 1.2.4 (a) of the Reasons).