2.5.1 Sworn statements and affidavits

Art. 117(1)(g) EPC provides for sworn statements in writing as a means of evidence (rare in practice). However, since any kind of evidence is admissible in proceedings before the EPO, other, less solemn types of written statement (common in practice), e.g. statutory declarations, are also accepted. It is for the decision-making departments then to assess their probative value on a case-by-case basis. Such declarations consist of a witness's written statement, the main purpose of which is to avoid the need to hear that witness. The various departments may, however, decide to order such a hearing, for example if a party so requests. The terminology used in the case law of the boards of appeal includes "affidavits", "statutory declarations" and "unsworn statements" (French: "déclarations écrites", "déclarations sur l'honneur" and "attestations"; German: "eidesstattliche Versicherungen" and "eidesstattliche Erklärungen").

For further decisions dealing with unsworn declarations, see T 443/93, T 563/02. The board in French-language case T 2338/13 explicitly referred to affidavits as "attestations". The board in T 474/04 (OJ 2006, 129), which had English as the language of the proceedings, referred to a document entitled "eidesstattliche Versicherung" as a "declaration in lieu of an oath" and an "unsworn witness declaration". In T 703/12, the board called a document of this kind entitled "eidesstattliche Versicherung" a "statutory declaration" and in T 1231/11 an "affidavit". In proceedings before the EPO even a simple declaration can be an admissible means of evidence within the meaning of Art. 117(1) EPC (T 474/04, OJ 2006, 129).

A statutory declaration ("eidesstattliche Erklärung" or "déclaration tenant lieu de serment") is a means of giving evidence within the meaning of Art. 117(1) EPC and as such is subject to the principle of free evaluation of evidence (T 558/95, cf. T 482/89, OJ 1992, 646; T 575/94). The EPO accepts unsworn solemn declarations the same way it accepts other unsworn statements (T 970/93, T 313/04, T 535/08). Older decisions include T 770/91, J 10/04 and T 1127/97.

The board in T 939/14 also held that the objection that affidavits did not meet the requirements of Art. 117(1)(g) EPC failed on the whole because standard board of appeal practice was to handle witness declarations, in whatever form or manner they are made, pursuant to the principle of free evaluation of the evidence.

In R 3/10 the Enlarged Board took signed declarations of persons who had attended the oral proceedings into account.

In T 915/12 the board considered that there was not sufficient evidence to prove that D16 – an extract from the encyclopedia- was made available to the public before the priority date (5 February 2001). The printing (2000) and copyright (1999) years indicated in D16 could not alone prove accessibility before early 2001. The hand-written annotation made by Ms S. – Head of Collections Department University – on the cover page did not fulfil the requirements of form and content which usually apply for affidavits or similar documents.