T 1890/15 - Experts oral proceedings Boards

Key points

• The Board notes in an obiter paragraph that " Should oral submissions by an accompanying person be considered and intended to be oral evidence comparable to a written statement ("affidavit") of said person, the same criteria as for the admission of late filed facts and evidence should apply. Indeed, submissions by an accompanying person involving the presentation of oral evidence will by definition relate to factual circumstances which will require that the opposing party be given an adequate and proper opportunity to present facts, evidence and arguments in reply (Article 13(2) RPBA). In the absence of exceptional circumstances and of an agreement by the opposing party, a request for hearing an accompanying person on specific facts which is filed either shortly before the date appointed for oral proceedings, or at the oral proceedings, will therefore be refused. " 
• As a comment, this may possibly mean that the Board notes that where an affidavit filed during the oral proceedings to evidence a certain fact would not be admissible, an oral submission by an accompanying person evidencing such a fact should not be a way to circumvent this; also to safeguard the right of the other party to provide counter-evidence to any facts asserted during such oral submissions. Note that oral submissions by accompanying persons are, as a matter of law, entirely different from a formal witness hearing under Art. 117 EPC. 
• The decision was taken already on 19.12.2017, the written decision was issued on 30.11.2018 so the Board needed some time for drafting the decision (perhaps for one of the other paragraphs of the decision, or for the one discussed above).

EPO T 1890/15 -  link



2.6 Although not relevant for its decision, the Board notes that in decision G 4/95, the Enlarged Board did not accept that Article 117 EPC provides a legal basis for hearing oral submissions by an accompanying person involving the presentation of facts and evidence (G 4/95, OJ 1996, 412, point 8 of the Reasons). In view of the reference to Article 117 EPC in general, it is not entirely clear whether the Enlarged Board considered that an accompanying person, in particular a technical expert, gives oral evidence by way of making oral submissions at the oral proceedings, or merely presents (legal or technical) arguments in place of the presentation of the case (pleading) by the professional representative. Should oral submissions by an accompanying person be considered and intended to be oral evidence comparable to a written statement ("affidavit") of said person, the same criteria as for the admission of late filed facts and evidence should apply. Indeed, submissions by an accompanying person involving the presentation of oral evidence will by definition relate to factual circumstances which will require that the opposing party be given an adequate and proper opportunity to present facts, evidence and arguments in reply (Article 13(2) RPBA). In the absence of exceptional circumstances and of an agreement by the opposing party, a request for hearing an accompanying person on specific facts which is filed either shortly before the date appointed for oral proceedings, or at the oral proceedings, will therefore be refused. This is in line with the conclusions in point 10 of the Reasons of G 4/95.