3.3.2 Parties' right to comment

In T 838/92 the board observed that in applying the principle of free evaluation of evidence, the opposition division or the board of appeal must exercise caution when evaluating the testimony of a witness whose impartiality is in doubt, with the parties of course being given an opportunity to comment on that testimony (Art. 113(1) EPC 1973). The board was not minded to sustain the appellant's objection to consideration of court bailiffs' reports on the basis that they had been established unilaterally. Such documents recording findings of fact were merely pieces of information which could be added to the file as evidence once they had been submitted to the parties for comment.

In T 909/03, where one of the appellants had objected to the manner in which a witness had been heard, the board held that it was not necessary for a party to be given a copy of the minuted testimony before questioning a witness. During the oral proceedings the party had been given sufficient opportunity to comment on the testimony of the witness.

In R 15/21 the Enlarged Board stated that although the right to be heard implied that the decision could only be based on grounds on which the parties had been able to comment and therefore also covered factual and legal aspects taken into consideration for the decision, that right did not extend to the stance the board ultimately planned to take. Therefore, the right to be heard laid down in Art. 113(1) EPC did not mean a board had to inform the parties in advance of the reasons it was considering in reaching its decision (see R 8/15, R 19/11). As this principle applies to reasons in general, it is also applicable to the evaluation of evidence, including a board's interpretation of a document or passage, such as the disputed passage of statement E33 relied on by the appellant in the review.