T 0042/19 of 19.01.2023

Public prior use (no) - insufficient evidence (yes)
Late-filed request to hear witness
Late-filed request - admitted (no)
Sufficiency of disclosure - main request (yes)
Novelty - main request (yes)
Inventive step - main request (yes)
Late-filed facts - submitted with the statement of grounds of appeal
Late-filed facts - admitted (no)
Free evaluation of evidence

1. A boards' power to review appealed decisions is not limited to points of law but extends to points of facts (in agreement with T 1604/16).
2. However, it is settled case law that a board is not obliged to take all the evidence anew and that parties do not have the right to have the taking of evidence repeated at their request before the board.
3. The principle of free evaluation of evidence, meaning that there are no firm rules on the probative value of the various types of evidence but that the deciding body is entrusted with weighing up all the evidence and basing its decision on what it is then satisfied has been established, implies a degree of freedom comparable to the one referred to by the Enlarged Board of Appeal in decision G 7/93, Reasons 2.6.
4. Thus, it is wise to similarly respect this freedom, especially when taking into account that a board, except when only reviewing documentary evidence, does not have the same first-hand impression of the probative value of a means of evidence as a department of first instance that has itself heard a witness or expert or inspected an object.
5. Although the Board is not limited in its decision, it normally seems useful to apply the test set out in decision T 1418/17, Reasons 1.3: Unless the law has been misapplied (e.g. application of the wrong standard of proof), a board of appeal should overrule a department of first instance's evaluation of evidence and replace it with its own only if it is apparent from that department's evaluation that it: (i) disregarded essential points, (ii) also considered irrelevant matters or (iii) violated the laws of thought, for instance in the form of logical errors and contradictions in its reasoning.
6. The evaluation of evidence only refers to establishing whether an alleged fact has been proven to the satisfaction of the deciding body. The discretion-like freedom is restricted to this question and does not extend to the further question of how the established facts are to be interpreted and what the legal consequences are (see Reasons 3.2 to 3.6).