3.2.2 Evidence wrongly rejected by the opposition division as late-filed

The board in T 1100/07 held that, although the opponent's request that a witness be heard had been filed late and unsatisfactorily presented, the opposition division ought to have heard the witness, particularly since he could have provided testimony on a crucial point it had ultimately relied on in its decision.

In T 190/05 the board found that the opposition division had been wrong to base its finding that an alleged prior use had destroyed a patent's novelty solely on a statutory declaration, because the patent proprietor had expressly disputed both the allegations made by the opponent and those in the declaration, which represented, besides, a piece of evidence and not in itself prior art. That it would have been impossible to give the witness named by the opponent the minimum two months' advance notice of the already scheduled oral proceedings was not, in the board's view, an exceptional circumstance justifying the failure to invite him.