BOARDS OF APPEAL
Decisions of the Technical Boards of Appeal
Decision of Technical Board of Appeal 3.5.2 dated 8 September 1993 - T 804/92 - 3.5.2*
(Official Text)
Composition of the Board:
Chairman: | R.E. Persson |
Members: | W.J.L. Wheeler |
| A.G. Hagenbucher |
Patent proprietor/Appellant: Thermo Produkter B.S. AB
Opponent/Respondent: WAECO - Wähning & Co. GmbH
Headword: Energy-saving refrigeration apparatus/THERMO PRODUKTER
Article: 117(1)(g) EPC
Keyword: "Sworn statements in writing, contents should not be suggested by the EPO"
Headnote
While it is permissible, and even desirable, in proceedings before the EPO for the EPO to draw attention to any discrepancies between the arguments presented and the documents which are supposed to support those arguments, this should always be done in an as neutral and objective way as possible. It is definitely not proper to request the filing of statements under oath having a content suggested by the Opposition Division or any other instance. This involves the risk of leading witnesses and could seriously undermine the probative value of such statements. Such practice should therefore be avoided (point 5 of the Reasons for the decision).
Reasons for the Decision
...
5. Finally, the Board, without questioning that the Opposition Division and everybody else concerned acted in good faith in this particular case, considers it appropriate to make the following general remarks about the proceedings before the Opposition Division.
5.1 The Board has noticed that the statements D1.2 and D2.2 were filed in response to the communication from the Opposition Division dated 14 November 1991, in which was stated inter alia that:
"The opponent should ... present a statement under oath by Mr. K. ... that:
- contrary to the standard version of LT 40 IPE a modified version has been sold and made available to the public
- said modified version could also be operated below a battery voltage of 12,2 Volts like a normal refrigerator
- that it was common practice that the users of the modified versions received no written manual and were satisfied with only an oral explanation.
The opponent should also provide a statement under oath by Mr. W. ... that:
- all manuals of the old Coolmatic DCU/S have been destroyed
- said old and new FA-30 Coolmatic use the same mechanical thermostat
- said old Coolmatic DCU/S operated according to the temperature diagram on page 4 of the letter filed 09.02.90."
5.2 While it is of course permissible, and even desirable, in proceedings before the EPO for the EPO to draw attention to any discrepancies between the arguments presented and the documents which are supposed to support those arguments, this should always be done in an as neutral and objective way as possible. It is definitely not proper to request the filing of statements under oath having a content suggested by the Opposition Division or any other instance, as illustrated in paragraph 5.1 above. This involves the risk of leading witnesses and could seriously undermine the probative value of such statements. Such practice should therefore be avoided.
* This is an abridged version of the decision. A copy of the full text in the language of proceedings may be obtained from the EPO Information Desk in Munich on payment of a photocopying fee of DEM 1.30 per page.