3.3.7 No violation of right to be heard where evidence of limited probative value

In T 103/15 the appellant (opponent) invoked the right to be heard to challenge the opposition division's disregarding the test report (D9) it had submitted as evidence. It argued that the reliability of D9 and the fact that its author had not been disclosed had not been an issue during the written phase of the opposition proceedings, not being raised by the opposition division until the oral proceedings, and alleged that it had thus been taken by surprise when the opposition division announced that D9 would not be taken into account. On evaluation of the evidence, the board held that, with respect to the probative value of test evidence, it was important not only to indicate the conditions under which those tests had been conducted, but also to specify the names of the testers and their employers so that the relationship between the testers and the party could be established if necessary. The appellant had been given the opportunity to provide the relevant information about the authorship of the test report D9 during the oral proceedings, but had refused to do so. In view of the test report's limited probative value, the board did not take it into account when reviewing the opposition division's decision (see also chapter III.G.4.2.2a) below).

For another case where the board accepted the opposition division's decision to disregard evidence, see T 1680/15.