T 0702/99 (Cosmetic/SHISEIDO COMPANY LIMITED) vom 03.12.2003

1. It is essential that comparative tests, conducted by a number of persons as evidence for or against qualities such as an improved "feel" of a product, be made under conditions which ensure maximum objectivity on the part of those conducting the tests and who may be required at a later date to give evidence in proceedings. Since such evidence is opinion evidence and thus inherently subjective, its value lies in the number of similar or same opinions and the tribunal faced with such evidence will seek to judge the objective value of a number of subjective opinions. Parties to proceedings should adopt the same standards in the preparation of such test evidence as they should in the preparation of experimental evidence. (See Reasons, paragraphs 2 to 4.)

2. While the use of independent persons would naturally tend to carry more weight, the use of employees may not be objectionable per se as long as the test conditions are designed to ensure that, just as if independent persons were used, the employees are not biased by prior knowledge of either the products under test or of their employer's expectation of the result of their tests. (See Reasons, paragraph 3.)

3. It is always desirable that such tests can be shown to be "blind"; that the testers have had no part in the making of the claimed invention or research leading up to the invention or the patenting procedure; and that the tests have been conducted in the strictest conditions - for example that no- one has given any or all of the testers any advance information, that each tester performs his or her test in the absence of the other testers, and that their opinions are accurately recorded. (See Reasons, paragraph 3.)

4. The presentation of such evidence must also be accurate but the format of the presentation is of secondary importance - a carefully prepared report and/or table may convey as much information as a large number of statements from the testers. However, in cases where a report and/or table is used, a statement (either within the report or a separate witness statement) from the organiser of the tests detailing the test conditions as well as the results can only assist in assessing the objective value of the test evidence. (See Reasons, paragraph 4.)