GL E IV 4.3 Examination of evidence

When evidence is submitted, the first thing to establish is what fact is being asserted, and then whether that fact is relevant to the decision. If not, the assertion is no longer considered and the evidence is not examined further. If the alleged fact is relevant, the next point is whether it is proven by the evidence submitted.

When evidence is examined, since the EPC says nothing about how the outcome of taking of evidence must be assessed, the principle of unfettered consideration applies.

GL E IV 4.2 Types of evidence

When evaluating submissions made, the difference between facts, evidence and arguments must be observed.

Example:

The opponent asserts that the preamble to claim 1 is described in document A, the characterising portion in document B (facts).

GL E IV 4.1 General remarks

The competent department must examine whether the conclusions drawn by the parties from the evidence and facts are correct and give grounds for the conclusions it itself freely arrives at on the basis of the situation as a whole.

The state of the art to be taken into consideration in individual cases for the purposes of Art. 54 is that laid down in G‑IV, 1 to 5 and

GL E IV 4 Evaluation of evidence

4.1 General remarks

4.2 Types of evidence

4.3 Examination of evidence

4.4 Asking for evidence

4.5 Evaluation of the testimony of a witness

4.6 Evaluation of the testimony of parties

GL E IV 3.6 Taking of evidence by an appointed person

If the law applied by the competent authority obliges the parties to secure evidence and the authority is not able itself to execute the letters rogatory, that authority may, with the consent of the competent department, appoint a suitable person to do so. When seeking the consent of the department concerned, the competent authority must indicate the approximate costs which would result from this procedure.

GL E IV 3.5 Costs of taking evidence

The execution of letters rogatory does not give rise to any reimbursement of fees or costs of any nature. Nevertheless, the state in which letters rogatory are executed has the right to require the European Patent Organisation to reimburse any fees paid to experts and interpreters and the costs incurred as a result of the attendance of members of the competent department when evidence is taken.[Rule 150(7); ]

GL E IV 3.4 Procedures before the competent authority

The EPO must be informed of the time when, and the place where, the enquiry is to take place and must inform the parties, witnesses and experts concerned.[Rule 150(5); ]

If so requested by the EPO, the competent authority shall permit the attendance of members of the department concerned and allow them to question any person giving evidence either directly or through the competent authority.

GL E IV 3.3 Letters rogatory

The EPO must draw up letters rogatory in the language of the competent authority or must attach to such letters rogatory a translation into the language of that authority.[Rule 150(2); ]

Letters rogatory must be addressed to the central authority designated by the contracting state.[Rule 150(1); ]

GL E IV 3.2.2 Evidence taken by a competent court

The competent department will, if necessary, request a competent court to take evidence, where appropriate under oath, where:[Rule 120(3); ]

(i)the taking of evidence by that department would entail disproportionately high travelling costs or the taking of evidence by the competent court appears to be appropriate on other grounds;

GL E IV 3.2.1 Taking of evidence on oath

The principal case where evidence is taken by a competent court will be the hearing of parties, witnesses or experts. In such instances the competent department may request the competent court to take the evidence on oath or in an equally binding form.[Rule 120(3); ]