4.1 General remarks 

The competent department has the power and the duty to assess whether the alleged facts are sufficiently established based on evidence. The proceedings under the EPC are governed by the principle of free evaluation of evidence. This principle allows, and requires, a competent department to decide according to its own discretion and conviction, by taking into account the entire content of the parties' submissions. There are no firm rules according to which certain types of evidence are, or are not, convincing. This does not mean that the evaluation of evidence may be arbitrary, rather the evidence must be assessed comprehensively and dutifully. The only decisive factor is whether the department is convinced of the truth of the factual allegation, i.e. how credible the department classifies a piece of evidence. To do this, the department must put all the arguments for and against a factual statement in relation to the required standard of proof. In doing so, the department remains bound by the laws of the logic and by probability based on experience. The department sets out in the decision the reasons for reaching its conclusions (G 2/21).

The principle of free evaluation of evidence may not be used to simply disregard an admissibly submitted piece of evidence that is relied upon by a party in support of an inference that is challenged and is decisive for the final decision, for example to prove the presence of a technical effect. Disregarding it as a matter of principle would deprive the party of a basic legal procedural right enshrined in Art. 113(1) and Art. 117(1). For example, the mere fact that evidence is post-published is not a sufficient reason not to take it into account.

The competent department must examine whether the conclusions drawn by the parties from the evidence and facts are correct and give grounds for the conclusions it itself freely arrives at on the basis of the situation as a whole.

The state of the art to be taken into consideration in individual cases for the purposes of Art. 54 is that laid down in G‑IV, 1 to G-IV, 5 and G-IV, 7 and G‑V.

The competent department is not obliged to take into consideration any facts or evidence not presented by the parties in due time, except within the limits specified in E‑VI, 2.