Key points
- "the opposition division found the two public prior uses alleged by the opponent (the respondent), relating respectively to the "sleep safe" dialysis machine and the "PatientOnLine" (POL) software, to be proven. With regard to the latter, two witnesses, Mr Guido Neyer and Ms Claudia Wolfers, were heard and a CD was inspected during the oral proceedings, which were held by videoconference."
- D6 is a user manual for the "PatientOnLine" (POL) software sold by the respondent which enables the creation and management of prescriptions for the "sleep safe" dialysis machine. D6a and D6d are affidavits stating that D6 was made publicly available during the installation of this software in a hospital in June 2007. In relation to this alleged prior use, the authors of the affidavits were heard as witnesses and a CD, presented by the respondent as an original installation CD of the POL software and allegedly containing a copy of D6, was inspected during the oral proceedings before the opposition division, which were held by videoconference."
- I assume it is a CD-ROM, not an audio CD.
- "The inspected CD was filed after the expiry of the opposition period. However, as noted by the opposition division (see point 2 on page 10 of the decision under appeal), the respondent did not submit it as evidence of a new set of facts but to support the alleged prior use of the POL software and in accordance with the opposition division's order to take evidence of 21 January 2021, according to which evidence was to be taken on this prior use, inter alia, "by inspecting an original installation CD of the POL software in the version 4.2" (see page 2). This prior use had already been invoked in the notice of opposition (see point VI.3 on page 16). In such a situation, the opposition division had no discretion not to admit the CD into the opposition proceedings. In any case, its decision to admit it did not suffer from an error in the use of discretion as set out in G 7/93, point 2.6 of the Reasons.'"
"the Board does not have any discretionary power of its own under Article 12(4) RPBA not to admit the CD into the appeal proceedings as it forms part of the evidence on which the decision under appeal is based within the meaning of Article 12(2) RPBA."
"The appellants also objected that it had been inappropriate to inspect the CD and to hear the two witnesses in oral proceedings held by videoconference. In their view, this format of oral proceedings was incompatible with the high degree of complexity of the case."
"The Board disagrees. The fact that taking of evidence may be conducted by videoconference is expressly mentioned in Rule 117 EPC. It is also immaterial that the appellants themselves did not have physical access to the inspected CD. The inspection of the CD did not concern its haptic feel, texture or handling experience, but only its content - in particular the file "PatientOnLine User Manual" with which D6 was alleged to be identical - and the fact that the inspection of the CD was carried out by videoconference did not prejudice the proper inspection of that content. The inspection was carried out by a member of the opposition division, assisted by a technician who presented the CD to the camera. The minutes also show that the parties were able to follow the inspection in real time during the videoconference and that the content of the CD, including some of its directories, was displayed to the videoconference participants. Moreover, all the pages of the user manual requested by the parties and the opposition division, as well as the contents of several other files, were also displayed, with corresponding screenshots being included in the minutes. The fact that some of the files were corrupted and therefore could not be opened is not related to the format of the oral proceedings."
"The Board also sees no reason to consider that the hearings of the two witnesses by the opposition division were compromised by holding the oral proceedings by videoconference. The minutes of both hearings show that precautions were taken to ensure that the witnesses were alone in front of the camera and that they had no document in front of them from which to read their statements."
- Good to know about this. I wonder if the EPO sends practical instructions to witnesses?
- The Board is satisfied that this evidence is sufficient to establish that D6 was made available to the public in June 2007, i.e. before the earliest priority date of the contested patent. D6 therefore belongs to the state of the art for assessing the novelty and inventive step of the subject-matter claimed in the patent.
- The case is remitted to the OD.