3.1.4 Hearing the witness introduces new facts into the proceedings

In T 1231/11 the board refused the request to hear a witness in support of an allegation of prior use. The witness had been offered to confirm the contents of his statutory declaration, but the board concluded that since he had not made any written statement regarding the decisive issue, any information provided on this matter would amount to introducing new facts into the proceedings. In addition the board concluded that there had been no substantial procedural violation by the department of first instance since hearing the witness had not been considered relevant for the outcome of the case. The board found the circumstances to be different from those ruled on in three other cases, where the request to hear witnesses related to facts already on file: T 267/06 (essential details referred to in the affidavit); T 25/08 (hearing necessary in order to confirm what had been brought forward in writing); T 448/07 (need to clarify inconsistencies in a written statement).