2.2.8 Indication of facts, evidence and arguments – substantiation of grounds for opposition
Assessing the evidence is part of the process of ascertaining whether the opposition is well founded in substance (T 234/86, OJ 1989, 79). Thus, in T 353/06 the board identified the appellants' arguments for the inadmissibility of the opposition as concerning the corroborative value of the facts and evidence, rather than a failure to indicate such facts and evidence in support of the grounds of opposition.
In T 426/08 too, the board, citing T 234/86 and T 538/89, stressed that R. 55(c) EPC 1973 did not require that the indicated evidence be put on file within the period for opposition. However, the board considered that the content of evidence merely referred to within the opposition period but not produced until after it could not, for the purpose of examining admissibility, be taken into account either as an indication of facts or evidence or as proof of facts. On the indication of evidence in the context of public prior use, see in this chapter IV.C.2.2.8 i) below.