4.1 General remarks 

The competent department has the power and the duty to assess whether the alleged facts are sufficiently established based on evidence. The proceedings under the EPC are governed by the principle of free evaluation of evidence. This principle allows, and requires, a competent department to decide at its own discretion and according to its own conviction, after taking into account the entire content of the parties' submissions. There are no firm rules according to which types of evidence are, or are not, convincing. This does not mean that the evaluation of evidence may be arbitrary; rather the evidence must be assessed comprehensively and dutifully. The only decisive factor is whether the department is convinced of the truth of the factual allegation based on all evidence on file, i.e. how credible the department classifies a piece of evidence. To assess the evidencedo this, the department must considerput all the arguments for and against a factual statement, while in relation to the required standard of proof. In doing so, remaining the department remainsbound by the laws of logic and by probability based on experience. The department sets out the reasons for reaching its conclusions in the decision (G 2/21).

The principle of free evaluation of evidence may not be used to simply disregard an admissibly submitted piece of evidence that a party has relied on in support of a disputed inference that is decisive for the final decision, e.g. to prove a technical effect. Disregarding it as a matter of principle would deprive the party of a basic legal procedural right enshrined in Art. 113(1) and Art. 117(1). For example, the mere fact that evidence is post-published is not a sufficient reason to disregard it.

The state of the art to be taken into consideration in individual cases for the purposes of Art. 54 is explained in G‑IV, 1 to G-IV, 5 and G-IV, 7 and G‑V.

The competent department is not obliged to take into consideration any facts or evidence not presented by the parties in time, except within the limits specified in E‑VI, 2.