Abstract on Article 117 EPC for the decision T1604/22 of 16.09.2024

In T 1604/22, the opposition division found the two public prior uses regarding dialysis machine and POL software alleged by the opponent (respondent) to be proven. Two witnesses were heard and a CD was inspected during the oral proceedings, which were held by videoconference. The opposition division concluded that the two prior uses belonged to the state of the art under Art. 54(2) EPC. The public availability of D1, an instruction manual for the "sleep·safe" dialysis machine sold by the respondent, was considered. Since the conclusion in T 2292/14 was based on affidavits which were again submitted as evidence in the opposition proceedings which led to the present appeal, the current board, like the opposition division, saw no reason to depart from that conclusion given that the alleged facts and circumstances of the public prior use invoked by the respondent were the same. D6 was a user manual for the "PatientOnLine" (POL) software sold by the respondent which enables the creation and management of prescriptions for the "sleep·safe" dialysis machine. Concerning its public availability, affidavits D6a and D6d stated that D6 was made publicly available during the installation of this software in a hospital in June 2007. In relation to this alleged prior use, the authors of the affidavits were heard as witnesses and a CD, presented by the respondent as an original installation CD of the POL software and allegedly containing a copy of D6, was inspected during the oral proceedings before the opposition division, which were held by videoconference. In reply to the appellants’(patent proprietors') objection with regard to the admittance of the CD, the board stated that it had no discretionary power not to admit the CD into the appeal proceedings as it formed part of the evidence on which the decision under appeal was based. As to the appellants’ objection that it had been inappropriate to inspect the CD and to hear the two witnesses by videoconference, the board stated that the fact that the inspection of the CD was carried out by videoconference did not prejudice the proper inspection of its content. The inspection was carried out by a member of the opposition division, assisted by a technician who presented the CD to the camera. The minutes also showed that the parties were able to follow the inspection in real time during the videoconference and that the content of the CD, including some of its directories, was displayed to the videoconference participants. Moreover, all the pages of the user manual requested by the parties and the opposition division were displayed, with corresponding screenshots included in the minutes. The fact that some of the files were corrupted and therefore could not be opened was not related to the format of the oral proceedings. Also, the hearings of the two witnesses were not compromised by the videoconference format. The minutes of both hearings showed among other things that precautions were taken to ensure that the witnesses were alone in front of the camera. According to the minutes, the parties were provided with the draft minutes of the taking of evidence and were given the opportunity to comment on them already during the oral proceedings. None of the parties made any comments at that time except a minor remark. Moreover, the appellants never complained that their right to be heard had been violated by the fact that the oral proceedings were held by videoconference. Therefore, conducting the taking of evidence by videoconference was not inappropriate and did not diminish the probative value of the evidence taken. D6a and D6d were affidavits, i.e. statements sworn under oath, which should be given a high probative value, unless other evidence casts doubt on them. The fact that the affidavits might have been written by someone else, e.g. the respondent's representative, was immaterial since by signing them the authors endorsed the statements made in the affidavits. The board was satisfied that the provided evidence was sufficient to prove the public availability of D6. The alleged inconsistencies and doubts raised by the appellants were not convincing. The fact that the events in question took place a long time ago could easily explain some imprecisions in the witnesses' testimonies, without calling into question the overall credibility of their statements. The appellants also explicitly did not question the witnesses' credibility.