3.5.1 Burden of proof

Where lack of novelty is alleged, the burden of proof lies with the party claiming that the information in question was made available to the public before the relevant date (see, for example T 193/84; T 73/86; T 162/87; T 293/87; T 381/87, OJ 1990, 213; T 245/88 and T 82/90). According to the boards' established case law, each of the parties to the proceedings bears the burden of proof for the facts it alleges. If a party, whose arguments rest on these alleged facts, does not discharge its burden of proof, this is to the detriment of that party, who may not shift the onus of proof onto the other party (see T 270/90, OJ 1993, 725; T 355/97; T 836/02; T 176/04; T 175/09; T 443/09).