T 0127/22 - Expert opinions

Key points

• Sufficiency of the patent is at issue.
• "The respondent [opponent] further submitted declaration D7, in which an expert working for the opponent gave the opinion, that the determination of the gas flow factor would not be a matter of simply measuring the pressure drop across the entire catalyst article and then applying Darcy's law"
• "Declaration D7, as opinion of an expert, is admissible evidence under Article 117(1)e) EPC. No circumstances have been presented that would question the credibility or qualification of the expert. The mere fact that the expert is an employee of the respondent does not in itself cast doubt on the value of the opinion. The statements of employees of parties to the proceedings are not objectionable per se"
• As a comment, Article 117(1) allows for any type of evidence to be filed. An opinion of an expert under Article 117(1)(e) EPC in the strict sense is, however, to be understood to refer specifically to reports of experts that are commissioned under Rule 121 EPC.

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the decision text.

https://www.epo.org/en/boards-of-appeal/decisions/t220127eu1

1.6 The respondent further submitted declaration D7, in which an expert working for the opponent gave the opinion, that the determination of the gas flow factor would not be a matter of simply measuring the pressure drop across the entire catalyst article and then applying Darcy's law, since Darcy's law is valid in a homogeneously permeable medium while the catalyst article of claim 1 according to the Main Request is not homogeneously permeable.

1.7 Declaration D7, as opinion of an expert, is admissible evidence under Article 117(1)e) EPC. No circumstances have been presented that would question the credibility or qualification of the expert. The mere fact that the expert is an employee of the respondent does not in itself cast doubt on the value of the opinion. The statements of employees of parties to the proceedings are not objectionable per se (cf. CLB, ibid, III.G.4.2.2a)).