3.2.11 When to order the taking of evidence and hearing of witnesses at oral proceedings

In J 20/85 (OJ 1987, 102) the Legal Board held that evidence should be taken as soon as an issue arises. In a dispute between the appellant and the Receiving Section as to whether a particular document had been filed on a particular day, the post room staff could not have been expected to have a clear recollection of what had happened more than a year after the events in question. See also in this chapter: T 1028/11 (late-filed request for a witness hearing); T 2003/08 of 31 October 2012 date: 2012-10-31 (hearing of a duly summoned witness who had failed to confirm attendance but was present on the appointed day).

Decision T 1505/16 (slide mechanism of vehicle seat) is an example of a case where, in relation to an alleged prior use, the board decided at the oral proceedings to take evidence by visual inspection – of the slide mechanism of the seat brought along by the appellant (opponent) to those oral proceedings – pursuant to Art. 117(1)(f) EPC and R. 117 EPC. This taking of evidence was performed during the oral proceedings before the board. See T 144/17 for a visual inspection by the opposition division.