4.2.2 Witness testimony and written statements
In T 361/00, as to the two statutory declarations (relating to visits to a cement works), the board had no doubt that they had been made in good faith but found them to be contradictory. Having found that the appellant's (opponent's) submissions at the oral proceedings had not clarified the contradictions, it concluded that the appellant had failed to furnish conclusive proof of the alleged prior use. Lastly, it held that there was no need to hear the witness, giving reasons for this finding (on contradictory statements, see also T 833/99 and T 832/13, serious doubts due to the general nature of the statement).
In T 1266/16 the board stated that, notwithstanding that the two declarations submitted were "word-for-word identical", they did not contain any specific detail with respect to the suppliers they referred to, let alone any data regarding purchase or analysis performed. As such, these statements, unsupported by any corroborating evidence, could not be considered as proof of the appellant's argument. Compare with T 1604/22, where the board stated the fact that the affidavits might have been written by someone else, e.g. the respondent's representative, was immaterial, since by signing them the authors endorsed the statements made therein.
In T 1914/08 the board – like the opposition division at first instance – regarded two witnesses' testimonies as the decisive evidence proving without any gaps the alleged prior public use. Each testimony, considered in isolation, gave a consistent and full picture of the process in question.
In T 1293/13, to overcome an objection of insufficient disclosure based on a reference to a machine that was no longer in existence, the proprietor had submitted a statement from the president of the company that manufactured machines of this kind attesting that the results would be the same irrespective of the machine used. The board was not persuaded by the statement as it was not based on any verifiable data.
On an alleged prior use, the board in T 453/02, disagreeing with the patent proprietor (respondent), held the content of three statements to be consistent and convincing. Furthermore, the impartiality of the first statement could not be doubted as it had been made by the patent proprietor itself. In any event, the proprietor could not plausibly argue that the alleged public prior use had been based solely on testimony given after the date of filing of the contested European patent application. That testimony had been corroborated by other evidence (original trade fair catalogue bearing a date).
In T 1043/93 the deposition of the witnesses (who did not bring documents as requested by the board) contained unclear answers, inconsistencies, and were in conflict with another, so that the board found that the related alleged public prior use was not proven and could not be considered to belong to the prior art (Art. 54(2) EPC)
In T 100/97, without casting doubt on the good faith of the submitted declaration, the board stated that for the content of such statements to be considered sufficiently credible, it had to be corroborated by documents of a definite date. In the absence of any such documents, the board decided that it could not be established with a sufficient degree of certainty what had been made available to the public before the priority date of the opposed patent.
In T 2546/17 the board found that contradictions between the information in documents D7 and D9 (internet citation) when compared with document D11 cast general doubt on the reliability of document D11 (an email written nine years after the last date mentioned on document D7 by a person (librarian) not mentioned in document D7). D7 did not belong to the relevant state of the art.
In T 473/93 the board decided that the appellant's surmise that he had been in error in making his statutory declaration was not sufficient to allow orally presented facts which deviated from the declaration to appear more credible. The fact alleged orally therefore had to be regarded as not proven.
An unsigned statement by an unknown and unnamed person should in principle be given minimal weight (T 750/94, OJ 1998, 32; T 1818/12). In T 212/97 the board could not regard the citation of facts based on hearsay and not accompanied by a witness testimony as adequate evidence for the alleged prior uses.
In T 939/14 the patent proprietor complained that the opposition division had ruled after having heard just one witness. Addressing its objection that, as per the decision in T 1210/05, a single item of testimony was insufficient to rule on the facts beyond any reasonable doubt, the board held that no such general principle could be gathered from that decision or, for that matter, from the case law of the boards of appeal in general. Cf. T 2165/18 (point 1.9 of the Reasons) and T 1057/15 (public prior use of a USB stick in a training session for customer service engineers).
Decision T 464/20 provides a very detailed example of a board's evaluation of testimony contested by the patent proprietor. In this case, the board reviewed the patent proprietor's arguments with particular focus on alleged inconsistencies in the testimony. The board also ruled on the standard of proof in relation to convincing the department of first instance and on the consequences of not ranking the evidence when evaluating said testimony. In very detailed reasons, the board ultimately agrees with the evaluation at first instance, namely that the public prior use had been sufficiently proven.
In T 1171/16 the board stated in relation to Art. 83 EPC that the respondent (patent proprietor) had argued that the declaration D7 by an employee of the respondent made in 2016 attested to the knowledge of the skilled person in 2004. The board, however, did not find the declaration to be a reliable source for establishing this. First, the declaration did not contain any particular information about the declarant's qualifications, occupation, knowledge nor indeed any other particular reason that would convince the board that the declarant could reliably attest to the knowledge of a skilled person in 2004.
In T 34/18, a case involving prior use and the examination of whether there existed an obligation to maintain confidentiality, the board held that the statements provided by a witness for the patent proprietor, as per the affidavit and the minutes of their hearing before a department of the Austrian Patent Office, were vague and did not cast any doubt on the credibility of testimony given in support of the opponent's assertions regarding a lack of any such obligation. The patent proprietor's witness had stated that there was indeed a written confidentiality agreement, but no such document could be produced. Overall, the impression the board took from this witness' statements was that he could not properly recall the events and had speculated on some points. He did not appear to specifically remember such an agreement but had assumed there would be one since that was normal practice. The statements by another witness offered by the patent proprietor were also too vague to refute the detailed statements provided by the opponent's witnesses. Decision highlighted by way of example due to its detailed reasoning on these points.
In R 15/21 before the Enlarged Board, the appellant (opponent-respondent) criticised the board for having disregarded relevant evidence regarding written statement E33 in relation to the publication date of E1 (user manual), evidence which, according to the appellant, would have led the board to revoke the patent. In the written decision, the board had not made any reference to the passage discussed by the petitioner in its oral arguments. The board decided that a gap such as the lack of a date in the user manual E1 could not be filled in by statements and testimony from a single person. Among other things, the appellant made reference to board decisions in which the testimony of just one witness had been enough to prove the asserted facts. The Enlarged Board did not agree with the appellant's analysis, holding that it was clear from the written reasons that the board had acknowledged – and indeed considered – the opponent's oral arguments. The Enlarged Board explained why in the case at issue the gaps in relation to E1 had not been filled in by a (single) witness and ultimately rejected the appellant's arguments. If the Enlarged Board were to assess whether the alleged facts, evidence and arguments presented by the appellant had been properly evaluated, this would require a review as to the substance, which was not within the Enlarged Board's competence (established case law since R 1/08).
In T 2892/19 the appellant patent proprietor alleged that K was an unreliable witness since it had an interest in the invalidation of the patent and was involved in criminal proceedings. The board considered that such considerations did not render evidence or witness statements automatically inadmissible or unreliable; it had to be considered in the evaluation of the submitted evidence. In view of the strong documentary evidence provided in addition to K's witness statements and the fact that the appellant had not pointed to any substantial contradictions in these witness statements, the board was convinced, on the balance of probabilities, that Regen kits according to D127 and instructions for their use according to D129 were delivered to Levi Medical and clinicians in Italy before the priority date of the patent.
See also T 649/20 which concerned the status of D1 – a scientific article from a journal – as prior art, of which the exact publication date was not available, as well as two printouts of emails (D15, D16) in which the managing editor and the senior publisher of the journal independently indicated the same date as date of publication for the issue of the journal in question (high degree of certainty). The board anyway considered that D14 (extract from public database from Central Library for Medicine) provided sufficient evidence that D1 was in fact publicly available before the priority date. Also relating to an issue as to when a journal was available to library users, in T 1050/12, meeting abstracts published in a supplement to a regular volume of a scientific journal were found to be publicly available before the priority date of the patent on the basis of library date-stamps and accompanying declarations of the librarians. Indeed the board stated inter alia there was evidence on file from three different libraries around the world (Germany, USA and UK) that copies of the journal were publicly available; there was corroborating evidence in the form of date-stamped copies for the dates of receipt and/or cataloguing, and the board had no reason to doubt that what the librarians described as being the usual routines in their libraries would indeed have been followed as regards the journal at issue. The board considered that regardless of whether or not the librarian was considered to be a member of the public (as was at stake in decision T 834/09), that there was persuasive evidence that documents D3 and D7 had been made available to the public before the priority date of the present patent. In T 649/20 the board decided that the librarian that received the journal issue and registered it in the database was a member of the public.
See also T 1138/20, point 1.2.3 of the Reasons (obligation to provide reasons).