3.2.7 Parties' responsibilities

When a party seeks to prove potentially relevant facts by means of the statement of a witness, it is particularly important that this statement be furnished early in the opposition phase so as to enable the witness to give oral evidence in accordance with Art. 117 EPC 1973, in the event that the statement is challenged or the EPO deems it necessary (T 953/90).

In appeal proceedings both parties are under a duty to submit all relevant facts in due time. In T 106/15 the appellant did not at any point in opposition (or opposition appeal) proceedings request that the author of the statutory declaration be heard (see also T 2010/08). Compare with T 41/19.

In T 753/09 an expert declaration had been late filed by the appellant (opponent). Having said that it would allow such belated evidence only if it were sufficiently relevant and if the other party could reasonably react to the late filing, the board ultimately refused to admit it into the proceedings. The board pointed out, inter alia, that as an expert declaration had to be considered not just as an argument, but as evidence pursuant to Art. 117(1)(e) EPC, the other party should be given the possibility to have such an expert declaration verified or possibly refuted by another expert with the same qualifications (as requested by the respondent as an auxiliary measure). Indeed, in the particular case, such a defence against the expert declaration required quite some time.

In case T 703/12 the board stated that, in accordance with Art. 12(2) RPBA 2007, the appellant's statement of grounds of appeal should contain its complete case, inter alia it should specify expressly all the evidence relied on. The appellant (opponent) was aware from the impugned decision that it was questionable whether the alleged prior use had been proven beyond any reasonable doubt. There was no justification for waiting until the oral proceedings to request that the witness be heard. Furthermore, consistent with established jurisprudence, the generic reference to the appellant's submissions in opposition in the notice of appeal could not be interpreted as expressly specifying the offer of a witness. Accordingly, the witness offer made for the first time during the oral proceedings constituted an amendment to the appellant's case in accordance with Art. 13(1) RPBA 2007 and could only have been dealt with by an adjournment of the oral proceedings. In accordance with Art. 13(3) RPBA 2007, the board decided not to hear the witness. As regards the duty to present a complete case, see T 30/15 and T 1949/09 (late-filed tests). See also the case law applying new Art. 12(3) RPBA 2020 in chapter V.A.4 below.

In T 1201/14, concerning a fourth line of argument (i.e. implied transfer under Taiwanese law) together with exhibits (opinion of a legal expert and excerpts from the Taiwanese Patent Act) the board concluded that even if Taiwanese law were to be accepted as the applicable law, the outcome would not be different from that of the appellant's second line of argument, as a result of a lack of substantiation regarding the content of the underlying evidence. Consequently, the board decided not to admit the fourth line of argument or the evidence submitted in support of it.