2.1. Non-exhaustive list of admissible means of evidence

Article 117(1) EPC does not contain an exhaustive list of admissible evidence, only mere examples. Parties to the proceedings are thus free in their choice of evidence. Any kind of evidence is admissible during proceedings before the EPO (T 482/89, OJ 1992, 646). Recently confirmed again in G 2/21 (OJ 2023, A85), point 40 of the Reasons.

The EPC does not provide that certain questions of fact may only be proved by certain forms of evidence. Questions of fact must be settled on the basis of any credible information available (see e.g. J 11/88, OJ 1989, 433).

In T 1199/22 the patent proprietor had requested that the opponents be ordered to provide the patent proprietor with samples for measurement. Concerning this request for provision of evidence, the board found correct the finding of the opposition division that there was no legal basis in the EPC for such orders. The board specified that no legal basis could derive solely from the fact that Art. 117(1) EPC did not contain an exhaustive list of means of giving or obtaining evidence.