b) Evaluation of evidence by the department of first instance 

In T 1418/17, the opposition division had considered the prior use resulting from the exhibition and demonstration of the "UWS 500" machine and cited as prior art (Art. 54(2) EPC) to be sufficiently proven, but had not considered the sale of this machine to various customers to be of a public nature. The board established that all the relevant arguments by the parties regarding both prior uses (sale/exhibition) had already been put forward and taken into account in the proceedings at first instance. With regard to the relevant facts established by the opposition division, the board observed that it was generally accepted that the principle of free evaluation of evidence applied before the EPO (G 3/97, OJ 1999, 245; G 1/12, OJ 2014, A114), which also had to have an impact on the review during the appeal proceedings (T 1107/12, T 621/14). Provided that there had not been an error in the application of the law (e.g. an incorrect standard of proof had been applied), a board of appeal should therefore only overrule the evaluation of evidence made by a department of first instance and replace it with its own if that department's evaluation of the evidence clearly had one of the following shortcomings: (i) essential points had not been considered (T 1553/07), (ii) irrelevant matters had been taken into consideration (T 2565/11) or (iii) the laws of thought had been violated, for instance in the form of errors in logic and inconsistencies in the reasoning (T 2565/11). None of these was apparent in this case. The board instead considered the opposition division's decision to be free of any errors of law or logic with regard to the issue of the public nature of the alleged prior uses, and therefore its evaluation of evidence was not open to objection. It thus agreed with the opposition division's findings and reasoning in the decision under appeal as to whether public prior uses had resulted from the sales of the "UWS 500" machine to various customers and from its exhibition and demonstration at trade fairs prior to the priority date of the contested patent, and deemed it expedient to put the reasons for its decision in abridged form in respect of these issues (public prior uses) pursuant to Art. 15(8) RPBA 2020. Unlike the opposition division, however, the board was of the opinion that the subject-matter of claim 9 of the main request had been anticipated by the cited public prior use in the form of the "UWS 500" machine's exhibition and demonstration at trade fairs. The main request was therefore not allowable. T 1418/17 has to date been cited by two decisions. Decision T 1057/15 referred to the principles laid down in the second catchword of T 1418/17 and endorsed the opposition division's evaluation of the evidence and facts in the case in hand. And T 1604/16, even more recent, did not follow T 1418/17 and considered that the boards have competence to review appealed decisions in full, including points of law and fact (see below). In T 1604/16, the invention related to a foldable ramp for loading a wheelchair into a vehicle. The opposition division concluded that there had been a prior use of the invention and, more specifically, that on the day the (former) opponent delivered to Ms M a car with a ramp as depicted in the photographs in E1/1, which took place as indicated in invoice E1, a ramp of this type was made available to the public. E1 showed that a car with a taxi ramp was sold and delivered to Ms M by the (former) opponent before the priority date. The photographs in E1/1 showing Ms M's car were taken by the (former) opponent after the filing date and after the car had had an accident and been repaired. A crucial point was therefore whether the ramp in the photographs was the same as the one delivered to Ms M when she bought the car. Ms M was also heard as a witness. The opposition division had based its assessment on E1, E1/1 and the witness's testimony. The evidence adduced before the board thus included documents E1, E1/1 and the minutes of the hearing of the witness at first instance. Since the board did not itself hear the witness and only had the minutes as evidence, the question arose whether there were restrictions on its competence to review and set aside the opposition division's finding of fact. There were no issues in terms of the witness's credibility (see in general T 474/04), and the questions and answers reflected in the minutes did not leave any gaps or raise any questions which the board needed the witness to clarify. In the board's view, the principle of the free evaluation of evidence has no direct bearing on the extent of the boards' competence to review decisions in general, and particularly findings of fact made by a department of first instance. If the criteria set out in T 1418/17 were applied so broadly, this would amount to a considerable restriction of a board's competence. The board referred to the explanatory remarks to Art. 12(2) RPBA 2020 that the boards have competence to review appealed decisions in full, including points of law and fact. The board was well aware that there is case law on a restriction of the boards' competence when reviewing discretionary decisions. However, it did not consider the evaluation of evidence to be a discretionary decision. The board did not see any reason why it should limit its review of the opposition division's findings of fact in the context of the public prior use by applying the criteria set out in decision T 1418/17. In the case in hand, the evidence lay entirely within the sphere of the (former) opponent, who sold the car, carried out the repairs and took the photographs produced as E1/1. Concerning the photographs in particular, the board noted that the insurance company of the other car involved in the accident would have needed some photographs of Ms M's car at least just after the accident and that there were no such photographs on file. In view of this and several remaining doubts which arose from the content of the minutes, the board held that the evidence produced was insufficient and hence that the opposition division had erred in concluding that the ramp shown in E1/1 formed part of the prior art. See also chapter V.A.1.1. "Primary object of the appeal proceedings – Article 12(2) RPBA 2020".