T 1311/21 of 12.09.2024

Amendment to case - complexity of amendment (main request: yes; first auxiliary request: no)
Amendment to case - suitability of amendment to address issues (main request: no; first auxiliary request: yes)
Late-filed request - should have been submitted in first-instance proceedings (first auxiliary request: no)
Novelty - public prior use
Novelty - standard of proof
Novelty - public prior use
Novelty - obligation to maintain secrecy
Remittal - special reasons for remittal (yes)

1. Where the opposition division decides at the same time on several objections of added subject-matter, resulting in the filing of a single amended request overcoming all objections during the first-instance proceedings, Article 12(6) RPBA does not prevent the board from admitting a new request overcoming only some of the objections raised during first-instance proceedings (see reasons 2.1.2).
2. The two standards of proof appearing in the jurisprudence of the boards of appeal - "balance of probabilities" and "beyond reasonable doubt" - may well be used as a yardstick in straightforward cases. However, this binary approach to proof standards can turn out to be overly formalistic and simplistic. If the evidence whose public availability prior to the priority date of the patent is at issue is neither within the sphere of control of the opponent nor within a neutral sphere of control to which both parties have access, neither standard of proof is exclusively applicable; rather, what matters
is 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 Reasons 3.2.1).