|European Case Law Identifier:||ECLI:EP:BA:1991:T027090.19910321|
|Date of decision:||21 March 1991|
|Case number:||T 0270/90|
|IPC class:||C08L 71/04|
|Language of proceedings:||EN|
|Download and more information:||
|Title of application:||-|
|Headnote:||In opposition proceedings decisions of the Boards on the evidence adduced by the parties must be arrived at on the basis of the overall balance of probability, as distinct from "beyond all reasonable doubt" or "absolute conviction". Each of the parties must therefore seek to prove facts alleged by it to that degree of proof.|
|Relevant legal provisions:||
|Keywords:||Novelty (no) - prior use - availability of the product and the information
Late submissions - abuse of procedure
Summary of Facts and Submissions
Reasons for the Decision
2. As it appears from hereinabove, the objection of lack of novelty boils down to an objection of prior public use based on the analytical results of NORYL samples submitted by the respondents.
2.1 In relation to the issue of prior use the appellant strongly argued that, as a matter of law, this ground of objection needed to be proved more strictly than any of the other grounds of objection available under Article 100 EPC. Indeed, he went so far as to say that the evidential test for establishing prior use under the EPC must be at least as strict as the strictest of tests applied by any of the relevant judicial organs of the Contracting States. In effect, he submitted that prior use had to be established not on the balance of probability but beyond reasonable doubt, that is to say established with the same degree of strictness as applies, for example, to criminal proceedings in the United Kingdom.
The Board wishes to restate the principles of law that apply to appeal proceedings under the EPC, for these principles are tacitly assumed in many cases, but are seldom expressly spelt out.
When arriving at their decisions, the Boards, in addition to exercising their inquisitorial powers (should this be necessary), decide the issues before them on the basis of the evidence adduced by the parties. Their decision need not, and indeed in most cases could not, be based on absolute conviction, but has, instead, to be arrived at on the basis of the overall balance of probability, in other words, on the footing that one set of facts is more likely to be true than the other (see decision T 182/89 of 14 December 1989, Extent of opposition/SUMITOMO, OJ EPO 1991, 391).
As far as each of the parties to the proceedings is concerned, they carry the separate burdens of proof of any fact they allege. The weight of that burden is the balance of probability as distinct from "beyond all reasonable doubt" or "absolute conviction". In the course of an appeal, therefore, each party must seek to prove facts alleged by it to this degree of proof and, as was said above, it is the function of the Board to decide, applying the same standard, which set of facts is more likely than the other to be true.
These principles clearly apply to all facts and matters alleged in relation to all grounds of opposition, including public prior use. Accordingly, the appellant's submission that the evidential test or burden of proof for prior public use needs to be stricter than that for other grounds of objection under the EPC is rejected.
Therefore, in the present case of alleged prior public use, the Board needs to decide which set of facts is more likely:
(a) that the material analysed by the opponents was one in general commercial use, or
(b) that it was a confidential and special sample sent by one opponent to one of his main competitors.
Having regard to all the evidence adduced by the parties, the Board has no hesitation in deciding, on the balance of probability, it is more likely that the sample analysed was one that was already freely on the market, and accordingly the objection of prior public use is upheld.