Friday, 5 April 2013

T 1698/08 – On Self-Depreciation

This appeal was filed by the opponent after its opposition had been rejected.

The patent proprietor questioned the authorisation of the opponent’s previous and current representatives and the admissibility of the appeal. It requested the Board not to admit certain documents filed by the opponent, among which there was an extract from the Zurich Commercial Register. In what follows, the Board deals with the admission of this document:

[1.5] Although the [patent proprietor] – until the announcement of the admissibility of the appeal – had not objected to the admission of the documents filed with the [opponent’s] letter of 27 November 2012, the day before the oral proceedings, after this announcement it objected to the admission of this extract as it states at the end “Die obenstehenden Informationen erfolgen ohne Gewähr und haben keinerlei Rechtswirkung”, which in its opinion had the consequence that the extract could not be considered as a means of evidence in the sense of A 117(1).

A 117(1)(c) lists “production of documents” as a valid means of giving evidence, whereby it is to be noted that the list in A 117(1) is not exhaustive, as can be deduced from the words “shall include”. A refusal to admit such a piece of evidence can therefore not be based on A 117(1).

While it has been accepted in the jurisprudence of the boards of appeal that EPO departments have some discretion in admitting evidence, e.g. where the evidence is unnecessary or of no relevance (cf. T 142/97 [2.2]), the main legal basis for refusing the admission of evidence are the provisions dealing with the late filing of evidence (A 114(2) EPC, A 12(4) and 13 RPBA). The present piece of evidence cannot be considered as having been filed late, as it was filed in direct response to arguments the [patent proprietor] had raised for the first time in its letter of 15 November 2012.

There is also no other reason for the board to exercise its discretion to refuse to admit the evidence, as it can neither be said that it is irrelevant nor that it is unnecessary. A refusal to admit can in any case not be based on statements in the document with respect to the accuracy of the facts it contains. Such statements relate to the probative value of a document. Based on the principle of free evaluation of evidence (G 3/97 [5]), the board is free in assessing to what extent the information in a document is credible, whereby such statement may play a role.

The board has been in a position to establish that the appeal is admissible without relying on the data in the document in question (extract from the Zurich Commercial Register), but has at the same time found no indication in the document that would cast any doubts on the finding of admissibility. It has also found no indication that would lead to doubts as to Mr Peter Geistlich’s authority to sign the authorisation for Mr Barry. This document rather confirms all the findings by the board as far as based on the evidence filed by the [patent proprietor] himself, and the board is convinced that its content is credible at least to that extent.

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