Selected decisions 

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)

To judge whether a claim request was admissibly raised in opposition proceedings within the meaning of Article 12(4) RPBA 2020, a board has to decide whether the opposition division should have admitted the claim request, had a decision on admittance been required. If so, the claim request was admissibly raised (reasons, point 7).

As a rule, claim requests filed in reply to the notice of opposition within the time limit set under Rule 79(1) EPC should have been admitted by the opposition division and were thus admissibly raised. Not admitting these claim requests and thus considering them not to have been admissibly raised must be limited to truly exceptional situations (reasons, points 7.1.2 and 7.1.3).

Whether or not a claim request filed after the expiry of the time limit set under Rule 79(1) EPC and before the expiry of the time limit set under Rule 116(1) EPC is to be considered filed in due time depends on whether this request was submitted in direct and timely response to a change to the subject of the proceedings introduced by the opponent or the opposition division. Opposition divisions have the discretion to not admit any late-filed claim request and therefore the board has the discretion to consider a late-filed claim request not to have been admissibly raised (reasons, points 7.2.4 and 7.2.6).

The criteria generally used by the boards of appeal when exercising their discretion to admit or not a party's submission in appeal under the Rules of Procedure 2020 may also be considered when deciding whether or not a late-filed claim request submitted after the expiry of the time limit set under Rule 79(1) EPC and before the expiry of the time limit set under Rule 116(1) EPC should have been admitted by the opposition division and was thus admissibly raised. However, when taking this decision, in view of the administrative character of opposition proceedings, these criteria should be used by the boards in a more lenient way than for a party's submission filed during appeal proceedings. In fact, to properly defend its patent, a patent proprietor must in principle be permitted to redefine its fallback positions in terms of auxiliary claim requests also at a late stage of opposition proceedings (reasons, points 7.2.7 and 7.2.10).

- Binding effect of a referring decision (see Reasons, points 9 to 9.4.5)

- Interpretation of order no. 2 of G 2/21 (see Reasons, points 10 to 11.14, in particular points 11.10 and 11.14)

- Submissions based on earlier decisions of the boards of appeal - admittance into the appeal proceedings (see Reasons, points 32 to 32.4, in particular point 32.3)

Any reasons as to why an amendment to a party's appeal case overcomes an objection which is not part of the decision under appeal or of the appeal proceedings do not constitute valid reasons for admitting the amendment in view of Article

12(4) RPBA, second paragraph.