3.1.7 Example procedure for hearing a witness

Decision T 401/12 of 8 November 2017 date: 2017-11-08, in which the taking of evidence requested by both parties was considered necessary, is an example of an interlocutory decision ordering that evidence be taken by hearing witnesses at a future date (R. 117 EPC) and dealing with the associated costs (R. 122(1) EPC) and the language issue (R. 4(3) EPC). The witnesses were given permission to bring any relevant documents. See also, in case T 738/04, the decision of 22 August 2008 ordering the hearing of a witness under R. 117 EPC at the oral proceedings on 11 December 2008, at the end of which the final decision was taken. T 660/16 addresses the issue regarding the nature of a decision – in this case, before the opposition division – ordering the hearing of a witness (case-management measure), and the deposit of an advance payment.

Decision T 104/23 concerns the holding of the witness hearing in a case where the proprietor alleged that the opponent had had contact with the witness before their hearing on the day of the oral proceedings, a violation of the opposition division’s instructions. The board did not accept the proprietor’s allegation of a fundamental procedural violation, considering it to be unfounded, and pointed out that it regarded the correct approach in these circumstances to be to consider the witness's disregard of the division's instructions in the evaluation of evidence, namely the witness's credibility. The board made reference to the Guidelines (version of November 2017), chapters IV.E.1.6 “Hearing of parties, witnesses and experts” and IV.E.1.6.4 “Separate hearings”. The board also observed that it would also appear as manifestly unrealistic to expect from parties to wholly refrain from contacting witnesses before their hearing, in particular to refrain from consulting them before a hearing. Otherwise, it would be plainly impossible for the attorney to select the appropriate persons, possibly out of a larger circle of people, very often all the employees of the party.