T 2036/21 (Composition for prodromal patients/NUTRITIA) of 24.10.2023

Late-filed document - admitted (yes)
Auxiliary requst 4: inventive step - (yes)
Convincing evidence that the claimed therapeutic effect is achieved - (yes)
Application of the principle of free evaluation of the evidence - (yes)
Binding effect of earlier decision of the Board when the facts are not the same - (no)

According to established case law, the principle of the free evaluation of evidence applies universally in proceedings before the EPO when assessing any means of evidence. There is no reason for diverging from this principle when deciding whether a compound or composition induces a therapeutic effect. The EPO deciding body decides on this issue in the light of its conviction, taking into account the evidence available in the proceedings and on the footing that one set of facts is more likely to be true than the other.
This approach does not correspond to that applied in other contexts, where conclusions are only drawn if there is a high grade of statistical confidence. In proceedings before the EPO it is not a prerequisite to perform a statistical analysis of the results and to determine a specific confidence interval, as it is most often required in biomedical research and by health authorities granting marketing authorisations for medicinal products.
(See reasons, points No. 3.25 to 3.29)