Résumé de EPC2000 Art 117 pour la décision T0423/22 du 24.03.2023

In T 423/22 the opposition division had heard witness M by videoconference without the consent of the appellant (patent proprietor). The board considered that Art. 117(1)(d) and R. 117 EPC provided a legal basis for hearing a witness by videoconference. The board furthermore emphasised that hearing the witness by videoconference in the case in hand had not infringed the appellant's right to be heard and it had not substantially limited the interaction between the opposition division, the parties and the witness compared to hearing a witness in the courtroom. As to the appellant's argument that it had not been able to observe the witness's body language during their hearing, and therefore it had been deprived of the opportunity to objectively judge their credibility, the board noted the following: Firstly, it was the deciding body's responsibility, not the parties', to judge the personal credibility of a witness and the plausibility of a witness's statement. It was up to the relevant department to decide which possible way to hear a witness. Secondly, the credibility of a witness was not determined largely by their body language. On the contrary, the credibility of a witness depended primarily on the plausibility and conclusiveness of their testimony and the absence of contradictions, in particular contradictions within the witness's own testimony, but also contradictions between the testimonies of several witnesses and/or contradictions between the witness's testimony and the evidence on file (see also Catchword). Thirdly, most of the body language relevant for determining secondary information such as whether a witness was nervous could be perceived in the camera-section visible to the other participants of the videoconference anyway. According to the board the appellant did not give any reason related to the present case as to why the body language not visible during the videoconference could have influenced the opposition division's decision such that it would have come to a different conclusion on the witness's credibility. And even if part of the body language could not be seen, this drawback could never affect a party's right to be present and to put questions to the witness (R. 119(3) EPC) to such an extent that its right to be heard, i.e. the "opportunity to present comments on grounds or evidence" (Art. 113(1) EPC), would be violated. The board further pointed out that its considerations with regard to hearing a witness by videoconference did not contradict decision G 1/21. Furthermore, under the current technical possibilities it could not be assumed that the EBA would have considered there to be a general obstacle against holding a witness hearing via videoconference. Whether G 1/21 required a general emergency in order to hear a witness by videoconference did not have to be addressed since G 1/21 did not concern oral proceedings in opposition proceedings nor taking of evidence, but instead was limited to oral proceedings in appeal proceedings. Finally the board examined the question of whether the opposition division had made an error of judgment when deciding to hold the witness hearing by videoconference. According to the legal framework applied in first instance, the opposition division may deviate from the standard of holding oral proceedings by videoconference if there are serious reasons against it. The board held that neither the "importance" of the prior use nor the fact that the outcome of the case hinged on the question of whether this prior use was public could constitute such "serious reason". The appellant had further alleged at the appeal stage that the witness being an employee of the opponent and being located in the opponent's office during their hearing constituted a special reason. However, this had not been raised during the opposition proceedings. Furthermore the minutes of the taking of evidence showed that the opposition division had made sure that the witness was sitting alone in the room. The mere fact that the witness was an employee of the opponent did not necessarily cast doubts on the witness's reliability that were serious enough for a hearing by videoconference to be ruled out. Regarding the review of the evaluation of evidence by the first instance, the board adhered to T 1418/17 and T 42/19. The referral of a question of law to the Enlarged Board was not considered necessary in view of the requirements of Art. 112(1)(a) EPC and Art. 21 RPBA 2020.