Evaluation – other tests 

In ex parte case T 2340/12 the application related to a space energy implosion unit. In relation to sufficiency of disclosure, the appellant (applicant) claimed without citing a specific internet citation that over 40 000 internet citations could be found concerning "Space Energy", and it only referred to "indirect" measurements carried out on white rats or patients, but did not elaborate on the nature of these experiments or on their relevance for the claimed invention, despite having been invited to do so in the provisional opinion issued by the board. The criticisms raised by the examining division regarding the absence of a control group for the patients treated, the doubts regarding the statistical relevance of the experiments carried out, the absence of details as to the circumstances and the way the experiments were controlled, were justified.

In T 453/04 the board found the experimental evidence advanced by the appellant (opponent) to be defective for two reasons. Firstly, the teachings of the patent in suit were not accurately replicated. Secondly, the product presented as representative of the prior art had not been shown to belong to the prior art. Thus the experimental evidence of the appellant did not demonstrate that the process steps set out in claim 1 of the main request resulted in products indistinguishable from those of the prior art.

In T 1248/08, in the application as filed, a number pertaining to a value used in example 1 was illegible and indecipherable. It was not clear whether it should read "0.08" or "0.09", or even "0.05". The board held that the arguments of the appellant adopting proof "on the balance of probability", in particular a survey in favour of the value of "0.09", had to fail. According to the survey conducted amongst partners and staff at the firm of the appellant's representative these results demonstrated that the value in question could not be considered to be "0.09" with a certainty "beyond reasonable doubt", as required by the established jurisprudence. In any event, a question of accuracy and disclosure could not be decided by a poll (see also chapter II.E.5. "Evidence and standard of proof for allowing amendments and corrections").

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