T 0768/20 - (I) The balance of probabilities

 Key points

•  The Board in this opposition appeal deals with Art. 123(2).
• “The applicable standard [under Article 123(2)] is thus "beyond reasonable doubt" rather than "beyond any doubt". The very requirement of an "unambiguous" disclosure under the gold standard indicates that a strict standard has to be applied and that the actual existence of a disclosure is not a matter of probabilities.” 
• “the board wishes to point out that the practical relevance of the distinction between the "balance of probabilities" standard and the "beyond reasonable doubt" standard is often overestimated. Both standards are only fulfilled if the deciding body is persuaded that the alleged fact is true, which is not a matter of "just tipping the balance slightly" (see decision T 545/08, point 8 of the reasons). This is also confirmed by the passage in Case Law, section III.G.4.3.1, according to which "the balance of probabilities standard [is] met if, after evaluating the evidence, a board [is] persuaded one way or the other" (underlining by this board).”
• As a comment, possibly in common law civil cases, the standard of "the balance of probabilities" may indeed mean "proof that the fact in issue more probably occurred than not" (to cite Lord Hoffmann). However, for the EPO, the Board's summary of established case law seems entirely correct. 

https://www.epo.org/law-practice/case-law-appeals/recent/t200768eu1.html

2.1.2 Question of standard of proof

The appellant expressed the opinion that the decision

under appeal was based on the assumption that the implicit disclosure of the feature "intact" had to be proven beyond any doubt. The board sees no reason to assume that the opposition division applied that standard. The relevant jurisprudence of the boards of appeal is summarised in Case Law, section II.E.5:

"In accordance with the established case law of the boards of appeal, in the case of a proposed amendment under Art. 123(2) EPC ... the factual disclosure of a European patent application as originally filed has to be established to a rigorous standard, namely the standard of certainty 'beyond reasonable doubt'."

The applicable standard is thus "beyond reasonable doubt" rather than "beyond any doubt". The very requirement of an "unambiguous" disclosure under the gold standard indicates that a strict standard has to be applied and that the actual existence of a disclosure is not a matter of probabilities.

Incidentally, the board wishes to point out that the practical relevance of the distinction between the "balance of probabilities" standard and the "beyond reasonable doubt" standard is often overestimated. Both standards are only fulfilled if the deciding body is persuaded that the alleged fact is true, which is not a matter of "just tipping the balance slightly" (see decision T 545/08, point 8 of the reasons). This is also confirmed by the passage in Case Law, section III.G.4.3.1, according to which "the balance of probabilities standard [is] met if, after evaluating the evidence, a board [is] persuaded one way or the other" (underlining by this board).

In the case at issue, the board is not persuaded that the original application can be deemed to implicitly disclose, directly and unambiguously, that the metallic ink is applied directly to the surface of the cured energy curable layer in its original state. The board thus reaches the same conclusion as the opposition division in point 17.7 of the decision under appeal.