Résumé de Article 117 EPC pour la décision T0832/22 du 18.12.2024

In T 832/22, several pieces of evidence were submitted by the opponent (appellant) to establish the publication date of document D9, a user manual issued by the opponent. The respondent (proprietor) considered that it was not sufficiently proven that D9 had been published on the internet before the priority date. Among about the ten affidavits submitted by the opponent, the affidavit D46 was submitted for the first time with the statement of grounds. The board decided to admit D46, which was prima facie relevant and essentially stayed within the legal and factual framework underlying the appealed decision. Concerning the standard of proof, the respondent argued that since the evidence of the public availability of D9 lay within the sphere of the opponent, the higher standard "beyond reasonable doubt" had to be applied, but that that standard had not been fulfilled due to the contradictions with respect to the publication date of D9 in the various pieces of evidence. The board, with reference to the case law and the principle of free evaluation of evidence, stressed that the standard of proof referred to the nature or degree of personal conviction that the members of the deciding body had to have in order to be satisfied that an alleged fact had occurred. If the applicable standard of proof was that which has been termed "the balance of probabilities", an alleged fact was proven as soon as the members of the deciding body were convinced that the occurrence of that fact was more likely than not. If the applicable standard of proof was that which has been termed "beyond reasonable doubt", the required degree of personal conviction of the members of the deciding body was higher. The board explained that standards of proof related, in legal systems based on the principle of free evaluation of evidence, to the nature or degree of conviction required of the members of the fact-finding body. Accordingly, it was difficult to quantify the difference in the required degree of conviction between the two standards. Attempting to describe this difference in the form of numerical thresholds (certain percentage) could even be misleading. Regarding the "beyond reasonable doubt" standard, in the board’s view, it thus seemed more expedient to focus on the term "reasonable" on the basis that the "beyond reasonable doubt" standard did not require absolute certainty, and that it was sufficient if the (majority of the) members of the deciding body had no reasonable doubt that an alleged fact had occurred. In other words, even if there was some remaining doubt, the "beyond reasonable doubt" standard of proof could be met as long as the remaining doubt was not reasonable. In any case, the board stated that if the higher of two disputed standards of proof has been met, it could be left open which of these standards must be applied when assessing the evidence in question. Hence, if the deciding body is convinced beyond a reasonable doubt that an alleged fact occurred, there is no need to decide which standard of proof is applicable. This was the situation in the present case in which the board considered with reference to D39 (Digital forensics technical report) that D9 was part of the state of the art under Art. 54(2) EPC. Indeed the board saw no reason to question the conclusions in the report D39 with respect to the upload date. The credibility of the report D39 and the methodology applied was as such not challenged by the respondent either. The fact that D39 had been commissioned by the appellant and was based on digital evidence from the appellant had, in the absence of any inconsistencies or other counter-evidence, no negative impact on its credibility. The further evidence did not contradict the conclusions based on the publication date based on D39. Even if – for the sake of the argument – it had to be decided which of the contradicting publication dates in D39 or D9’, two independent pieces of evidence, was the correct one, both of them were well before the priority date.