Wednesday, 28 October 2009

T 95/07 – There is No Withdrawal of Evidence

[The second opponent] submitted in its statement of grounds of appeal with respect to A 54 and the disclosure of comparative example 4 of D1 that the data of D6, i.e. the experimental data of [the first opponent] were more reliable than D11, i.e. the theoretical calculation provided by [the second opponent] and stated that it withdrew D11. [V(c)]

[…] The fact of the matter is that D11 formed part of the proceedings from the outset and forms part of the public file. Whilst a party may choose not to rely on a particular piece of evidence in the file the Board is not aware of any legal mechanism for removing arbitrarily or by simple preference of that party elements of evidence already cited and forming part of the proceedings. On the contrary by analogy with the finding of T 270/94 [2.1], D11 formed part of the legal and factual framework within which the examination of the opposition was to be conducted. Pursuant to A 113(1) each party must be allowed to comment on any evidence legitimately submitted in the proceedings. Allowing one party, even the party having originally submitted that evidence unilaterally and arbitrarily to require such evidence to be excluded from consideration would infringe this right.

In the present case, moreover, for the reasons given the remaining piece of evidence relied upon (D6) leads to the conclusion that the subject-matter of comparative example 4 of D1 does not anticipate the subject-matter of operative claim 1. D11 contains no information which would result in a modification of this conclusion. Hence insofar as the consideration of novelty is concerned, neglecting the evidence provided by D11 would not change the conclusion reached. [4.2.12]

To read the whole decision, click here.