T 2463/22 - On evidence, the standard of proof, Re B (Children) (and Francis Bacon)

Key points

• Some reflections on the standard of proof from Board 3.3.09 in this appeal about an alleged public prior uses.
• "The case law of the Boards of Appeal has tried to reconcile the following two aspects.
• - On the other hand, there is an imbalance in that one of the parties to the proceedings has access to the evidence and the other does not. The party that contests the prior use usually has little or no access to evidence that could support its case. All it can do is, essentially, point out inconsistencies or gaps in the chain of evidence provided by the other party.
• - On the one hand, under the principle of free evaluation of evidence, the deciding body must not observe any formal rules when assessing evidence, such as giving one means of evidence, as such, more weight than another. Accordingly, a lower probative value must not be systematically attributed to e.g. witness statements on a prior use from real life than to written evidence such as patent specifications."
• " In the current board's view, under the principle of free evaluation of evidence, it is always decisive in the evaluation of evidence that the members of the deciding body are personally "convinced". Moreover, they must always be convinced of whether, as stated in T 1138/20, "the alleged fact has occurred". Both is true regardless of which standard of proof is applied. "
• "The current board considers the following extracts from House of Lords, Re B (Children) [2008] UKHL 35, Reasons 2 to be an accurate and illustrative description of the issue at hand: "If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. [...] [T]he standard of proof [...] is [...] the degree of persuasion which the tribunal must feel before it decides that the fact in issue did happen." (emphasis by the board)."
• As a comment, I thought "non liquet" is an essential element of the law on evidence, but legal traditions apparently differ. Even in the meaning of the phrase, it turns out. Compare the English and German Wikipedia pages for non liquet
• https://en.wikipedia.org/wiki/Non_liquet - "In law, a non liquet (commonly known as "lacuna in the law") is any situation for which there is no applicable law."
• https://de.wikipedia.org/wiki/Non_liquet - "Auch heute wird im Verfahrensrecht bei Beweisproblemen mit non liquet eine Situation bezeichnet, in der weder der Tatsachenvortrag der einen noch der anderen Seite bewiesen werden kann." ... "Im Zivilprozess hängt die Entscheidung bei einem non liquet von der (materiellen) Beweislast ab. Derjenige, der nach den Regeln der Beweislast die streitige Tatsache zu beweisen hat, verliert den Rechtsstreit, weil er beweisfällig bleibt (zumeist der Anspruchsteller)."
• I'm more familiar with the German use of the term non liquet (the term is used in the same way in Dutch law). The question for me was: what do judges do if the evidence is ambiguous in common law procedures / in the UK?
• To cite Francis Bacon in Reading on the Statute of uses (published in 1642):
• 
  
  https://books.google.nl/books?id=fusOD6ELKZ4C&newbks=1&newbks_redir=0&dq=The%20learned%20reading%20of%20Sir%20Francis%20Bacon%2C%20one%20of%20Her%20Majesty's%20learned%20counsel%20at%20law%2C%20upon%20the%20statute%20of%20uses&pg=PA305#v=onepage&q=non%20liquet&f=false 
• It seems that the view of the House of Lords in 2008 is still very much in line with the common law approach, or perhaps the remark of the House of Lords - self-evident as it is to the Lords, it is foreign to me - can be explained by the historical English approach to evidence.
• As a further remark, since under German law, the "Beweislast" rules determine the outcome of the case in the event of a (German-style) non liquet of the evidence, a concept alien to English law, it seems, it may have to be considered what 'burden of proof' precisely means in English law.
• See also T 1076/21: "If a material fact is not or cannot be proven, a decision is taken on the basis of who bears the relevant burden of proof. The fact that the real position cannot be established is to the detriment of the party which bears the burden of proof for this fact, among other things because the other party is given the benefit of the doubt. In principle, each party bears the burden of proof for the facts it alleges (T 63/06, Reasons 3.1 and 3.2)."

EPO 

The link to the decision can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t222463eu1