4.3.2 Public prior use
Overview
4.3.2 Public prior use
Although the standard of proof is the same for all objections covered by Art. 100 EPC (cf. T 270/90, OJ 1993, 725), the case law identifies two levels or standards of proof to be applied with regard to disputes around public prior use – either the "balance of probabilities" or "up to the hilt".
About burden of proof, see decision T 2037/18, which sets out detailed reasons on the issue (prior use; distinction between the admissibility and the substantive merits of the opposition; burden of presentation and burden of proof; principle of "negativa non sunt probanda"; non-confidentiality clause; shifting of the burden of proof) and cites numerous other decisions.
- T 1138/20
Catchword:
1. There is only one standard of proof in the proceedings before the EPO: the deciding body, taking into account the circumstances of the case and the relevant evidence before it, must be convinced that the alleged fact has occurred (see point 1.2.1 of the Reasons). 2. The boards have the power, at any stage of the appeal proceedings, to establish the relevant facts of the case before them and thereby substitute the findings of fact of the departments of first instance. However, the boards have no obligation to establish facts de novo already established by the departments of first instance (see point 1.2.4 of the Reasons). 3. The board's review of a fact-finding process should not be conflated with the review of discretionary decisions within the meaning of the obiter dictum in G 7/93, Reasons 2.6 (see point 1.2.4 (a) of the Reasons).
- 2023 compilation “Abstracts of decisions”