2.6. Other documents

As the EPC neither defines the term "documents" (Art. 117(1) EPC) nor gives any indication of the probative value of such documents, the principle of free evaluation of evidence applies. Any kind of document, regardless of its nature, is admissible during proceedings before the EPO, including appeal proceedings (T 482/89, OJ 1992, 646). See also, for example, G 2/21 (OJ 2023, A85), point 40 of the Reasons.

In T 1698/08 the respondent (patentee) objected to the admission of an (internet) extract from the Zürich Commercial Register as it stated at the end that the information was provided without warranty and had no legal effect whatsoever, which in its opinion had the consequence that the extract could not be considered as a means of evidence within the meaning of Art. 117(1) EPC. The board stated that a refusal to admit such a piece of evidence (an uncertified extract from a commercial register) could therefore not be based on Art. 117(1) EPC. The board decided that there was no reason to exercise its discretion to refuse to admit the evidence, as it could neither be said that it was irrelevant nor that it was unnecessary. A refusal to admit it could in any case not be based on statements in the document with respect to the accuracy of the facts it contained. Such statements relate to the probative value of a document.

In T 71/99 the minutes of the proceedings as taken by the opposition division did not provide a full account of the conduct of the oral proceedings. To show the board what had actually happened, the respondent submitted part of a copy of a report of the opposition proceedings which had been dictated by his representative in the course of those proceedings. The appellant argued that this document should not be admitted, albeit without disputing the facts set out in it. Since the submitted part of the report was significantly more precise and not difficult to understand, the board saw no reason to disregard the evidence. In R 3/08 the Enlarged Board, having taken private minutes into account, considered that there was no indication that the petitioner had raised any objection.

In T 2274/22, in relation to concerns about bias before the department of first instance after one of the opponent's representatives joined the breakout room intended for the interpreters' briefing, the board found that the sequence of events at the oral proceedings before the opposition division could be pieced together on the basis of the minutes, its annexes and the parties' submissions. The parties confirmed that the minutes were a true representation of the facts and the general order of proceedings. The parties also agreed on the other events; these were not immediately discernible from the record, but the participants were able to provide an objective account of them.

On minutes of oral proceedings as evidence of the course of the proceedings, see also chapters III.C.8.10., V.B.3.7.5. and R 7/11. See also in this chapter: T 361/00 (minutes not contested), and T 2301/12, in which, the accuracy of the minutes of the oral proceedings having never been challenged, the board started from the position that they represented a faithful account of events. Similarly, in R 6/17 the petitioner had neither objected to nor requested a correction of the minutes. Likewise, in T 1604/22, although the proprietor challenged the holding of first-instance proceedings by videoconference for the visual inspection of a CD and the hearing of two authors of written statements, none of the parties commented on what the draft minutes said about the taking of evidence during the hearing, presented to the parties at the oral proceedings. To dismiss the objections that videoconference was unsuitable for consideration of the CD, the board pointed out that the minutes of the oral proceedings included screenshots of the visual inspection. In T 246/22, in relation to the application of Art. 12(4) RPBA and the issue of maintaining requests, the board held that the maintenance of the requests was self-evident from the minutes of the oral proceedings before the opposition division.

In various cases concerning prior use, photographs were submitted as evidence (see e.g. T 833/99 (photos considered too unclear); T 1410/14; T 564/12; T 453/02 (photos as annexes to affidavits); T 973/10; T 1647/15; T 1127/97; T 544/14; T 1604/16; T 1202/20 and T 778/21).

T 523/14 concerned an advertising newsletter as an alleged prior publication. Of the evidence produced by the opponents, the appellant (patent proprietor) argued that D61 – a screenshot of Microsoft Outlook documenting the forwarding of the email – might be a forged document. However, the appellant did not indicate, and the board could not find, any inconsistency or discrepancy in D61 which could suggest that this document was a forgery. The mere fact that it was a screenshot of Microsoft Outlook was insufficient to warrant the conclusion that it had been forged. See also T 649/20, in which at issue was whether D1, a printout of an online entry of a scientific journal, was prior art – printouts of emails were also provided as evidence – D14 an extract from a public database from a central library was considered as sufficient evidence; T 884/18, in which on the balance of probabilities, date stamps on evidence (screenshots of an internet page) from the Wayback Machine established availability to the public. Compare however with T 3000/19, in which the screenshot of a video that was no longer available was found to be insufficient for judicial review.

Where there is no evidence of forgery, it is not necessary to submit the originals of instruments of transfer. Failure to submit originals is not sufficient by itself to raise reasonable doubt as to the validity of the transfer (T 2466/13, which concerned a transfer of priority right).

The board in T 41/19 dealt, among other things, with the probative value of an email in light of a witness statement as to an alleged novelty-destroying prior use (it was considered to be weak in the context of the case in hand).

In T 518/10 (concerning a transfer of opponent status), opponent 2 had filed a copy of an extract from the Norwegian companies register from which it was clear that its name had changed following a merger. The board considered this evidence sufficient to demonstrate who was opponent 2's universal successor in law. See also T 347/15 (two extracts from the commercial register).

In T 2220/14 the opponent submitted a decision of a US District Court in relation to the appellant's US patent. Ultimately, pursuant to Art. 13(1) and (3) RPBA 2007, the board decided not to admit this document into the proceedings. It recalled the relationship between national decisions and procedures before the boards of appeal (point 16 of the Reasons) and considered the document to be irrelevant to the issues before it. For a list of board decisions on evidence in relation to national proceedings, see in this chapter III.G.4.2.2e).

In T 301/94 a report by a "huissier de justice" (court bailiff) concerning champagne bottles had been submitted as evidence of alleged prior use. The evidential value of such official reports drawn up by a "huissier de justice" was no longer questioned at the appeal stage (see also T 838/92).

In T 801/98 lock designs had been deposited, under seal, with a court bailiff and submitted by the appellant during the oral proceedings before the board.

In T 1332/12 the respondent (opponent) filed a copy of Japanese application D7 as evidence of the prior art and a JPO machine translation into English (D7T). The appellant (patent proprietor) filed later D7JPO, in its view a more accurate machine translation of D7. The board pointed out that there was nothing in the EPC to prevent a party from filing a corrected translation of a document filed as evidence, even if the evidence and/or translation was filed by the other party to the proceedings. This also applied if the document was a patent application. (T 1332/12 cited by T 1968/18). See also chapter III.F.5. "Translations".

For internet publications, see in particular T 286/10 and T 2227/11, reported in this chapter.