7 October 2022

T 0464/20 - Should contest witness testimony in first instance

Key points

  • The OD revoked the patent as not novel over the alleged public prior use "toasted deli sandwich bag". The patentee tries to reverse the OD's findings of fact. The evidence comprises a sample of the bag, a witness declaration, and the (minutes) of the witness hearing before the OD. Finally, there is a document "Confirmation from Keystone Distribution to Mr. Longstaffe about monthly deliveries of the "WRIN 02135042 TDS Bag" to McDonald's, Linwood".
  • The following quotations of the Board use machine translation.
  • The alleged fact is that " the bags were supplied by Smith Anderson Packaging Limited to Keystone Distribution UK Ltd. and from Keystone to McDonalds" (before the priority date)
  • The patentee tries to contest the credibility of the witness Mr. Longstaffe.
  • "The opposition division saw no reason to doubt the credibility of the witness Longstaffe because he had denied the question of economic or personal interest. Mr Longstaffe is the managing director of Smith Anderson Packaging Limited, which manufactured the prior-use bags. However, it does not follow from this that Mr Longstaffe had a personal economic interest in the outcome of the opposition proceedings"

  • "The appellant [patentee] argued that the opposition division's assessment was unjustified, that the credibility of the witness Longstaffe was not objectionable because, contrary to his testimony (minutes of the hearing of witnesses, page 1: "No, I don't believe so .") he had a special personal and economic interest in the outcome of the proceedings. This is shown by the fact that Mr. Longstaffe's statements that McDonald's was the largest customer of the Smith Anderson company, which Mr. Longstaffe was the managing director of (witness hearing record, page 12, last paragraph: "Almost 50% of our business is with McDonald's") [...] If the patent in suit is maintained, the Smith Anderson Group faces a possible infringement lawsuit. "
  • The Board: " The Board notes that the witness Longstaffe initially denied the question of any economic or personal interest in the outcome of the opposition proceedings. However, his statements did not completely rule out such an interest. However, the board is convinced that the discrepancies highlighted by the appellant do not call into question the credibility of the witness, so that the reliability of the entire testimony should be called into question and should not be taken into account as a whole." 
  • The patentee argues that because the alleged prior use involved 72,000 field test bags, more written evidence should have been filed.
  • The Board, in translation: " The evidence of the testimony thus has the same value as any other evidence referred to in Article 117(1) EPC. The probative value of the testimony of the witness Longstaffe is therefore not devalued by a missing document or a missing piece of evidence, contrary to the view of the [appellant]." 
    • As a comment, based on the machine translation, I understand that the patentee complains about the lack of supporting written evidence; not about any discrepancy between an actually filed document and the testimony. In my view, that has little to do with Article 117(1) EPC not prescribing a hierarchy of evidence.
  • The Board does not admit an objection against the evidence. "1 In the statement of grounds of appeal, the appellant stated that doubts arose as to the credibility of Mr. Longstaffe's statements, since he was unable to give an exact time when he was appointed CEO in 2007 when questioning witnesses. On the other hand, he was able to determine delivery dates and quantities for a single product from Smith Anderson's entire product portfolio in 2007 to the day (reasons of appeal, point III.4 b)).
    In this respect, the appellant formally criticized the opposition division's assessment of the evidence, but in the end, it aimed for a factual statement by the witness. The board agrees with the respondent (Response of Appeal, points 3 to 5) that the contested decision was not based on this objection. Thus, the admission of this submission is at the discretion of the Board under Article 12 (4) RPBA 2020.
    The Board agrees with the Respondent that the Appellant could and should have asked the witness during the taking of evidence by hearing the witness why he could not remember the exact day when he was appointed CEO if that question had been relevant to her. This objection by the appellant relates to facts that could have been clearly clarified in the opposition proceedings as a suspicion during the taking of evidence by questioning the witness. The objection could also not be followed up without further ado, since the witness would have had to be questioned or would have to be questioned.
    Even during the subsequent discussion of the result of the taking of evidence in the oral hearing before the opposition division, the credibility of the witness was not called into question on the basis of this fact.
    Therefore, the Board sees no reason, in exercising its discretion under Article 12 (4) RPBA 2020, to consider this objection in the proceedings, as requested by the Respondent."
  • As a comment,  this decision suggests that you must raise any and all objections against witness testimony during the first instance proceedings. Alternatively, a party may allege a violation of the right to be heard, i.e. allege that it was given an insufficient opportunity to comment on the testimony. In the case at hand, the witness hearing took place on the same day as the oral proceedings before the OD. 
    The Board is of the opinion that the testimony as a whole is to be regarded as very clear and detailed with regard to the issues relevant to the decision and that it provides a consistent and complete picture with regard to the public prior use to be proven. The opposition division did not err in linking the assessment of the evidence to its conviction. The alleged inconsistencies and lack of connection cited by the complainant are not considered sufficient to undermine the probative value of the witness testimony.
  • The board is thus not convinced that the opposition division's assessment of the evidence was incorrect. Therefore, the board shares the opinion of the opposition division in the decision under appeal that on the basis of the witness statements, D1, D1.3 and D1.6, the alleged public prior use of the "toasted deli sandwich" bag is sufficiently proven.

  • Consequently, it forms part of the state of the art under Article 54(2) EPC with the features listed in the minutes of the taking of evidence by visual inspection of D1." 


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




Machine translation

facts and requests

I. The patent proprietor filed an appeal against the opposition division's decision revoking European patent No. 2 535 295 in due form and time.

II. The joint opposition was directed against the granted patent in its entirety and was based on the opposition grounds of lack of novelty and inventive step under Article 100(a) EPC.

III. With a notification pursuant to Article 15 (1) RPBA 2020 dated July 20, 2021, the Board of Appeal informed the parties of its preliminary assessment of the factual and legal situation, according to which the appeal is likely to be dismissed.

None of the parties involved commented on the content of the Chamber's notification in writing.

IV. Oral proceedings were held before the Board of Appeal on January 20, 2022. For the details of the course of the oral hearing, reference is made to the minutes.

The operative part of the decision was announced at the end of the hearing.

V. The appellant (patent proprietor) requested

the annulment of the decision under appeal and the maintenance of the patent as granted (main request),

alternatively, the maintenance of the patent in an amended version on the basis of one of the sets of claims according to auxiliary requests I to VI, filed with a document dated December 20, 2017.

The respondent (co-opponent Weber Verpackungen GmbH & Co. KG) requested

the rejection of the complaint.

VI. The following documents mentioned in connection with the alleged public prior use "toasted deli sandwich bag" are mentioned in this decision:

D1: Pattern of toasted deli sandwich bag

D1.1: Color copy of a bag marked "toasted deli sandwich" and "FRESHLY MADE to your order",

D1.2: Affidavit by Mr. Michael Longstaffe,

D1.3: Invoice from Smith Anderson to Keystone Distribution,

D1.4: Minutes of the testimony of Mr. Michael Longstaffe before the DPMA in opposition proceedings against the priority document DE 10 2007 026 807,

D1.5: Decision of the DPMA in opposition proceedings against the German priority document DE 10 2007 026 807,

D1.6: Confirmation from Keystone Distribution to Mr. Longstaffe about monthly deliveries of the "WRIN 02135042 TDS Bag" to McDonald's, Linwood,

Minutes of the taking of evidence through the hearing of the witness Mr Michael James Longstaffe during the oral proceedings before the opposition division on July 3, 2019 (hereinafter "minutes of the hearing of witnesses"),

Minutes of the taking of evidence by inspection of D1, conducted in the course of the oral proceedings before the opposition division on July 3, 2019.

VII. The independent claim 1 of the patent as granted according to the main request reads:

"Bags based on a paper and/or composite paper material for holding food, in particular unbaked or pre-baked baked goods, ready-baked baked goods, pizza, pizza corners, pancakes, crepes, burgers, potato pancakes, sandwiches and the like, comprising a front side with an opening side edge and a bottom edge and a first side edge and a second, opposite side edge and a back side with an opening side edge and a bottom edge, and a first side edge and a second, opposite side edge,wherein the front and the back are connected directly or indirectly at least in sections in the area of ​​their bottom edges and at least in sections directly or indirectly in the area of ​​their respective first or second side edges that rest against one another, the bag has at least one first weakening line, in particular a perforation seam, on the front side, and that the The back of the bag has at least one second weakening line, in particular a perforation seam, which extends in the same direction from or at a distance from the opening-side end of the front and back to or in the direction of the bottom end of the front and back, characterized in thatand that the bag has at least one second weakening line on the back, in particular a perforation seam, which extends in the same direction from or at a distance from the opening-side end of the front and back to or in the direction of the bottom end of the front and back, characterized marked thatand that the bag has at least one second weakening line on the back, in particular a perforation seam, which extends in the same direction from or at a distance from the opening-side end of the front and back to or in the direction of the bottom end of the front and back, characterized marked that

the rectified first and second lines of weakness of the front and back are spaced a distance from the first side edges of the front and back in the range of 1/8 to 3/8 of the width of the bag and that the opening edge of the front is below the opening edge the back is available."

VIII. Claim 1 according to auxiliary request I comprises, compared to claim 1 according to the main request, the additional features of claim 2 as granted

"and that the respective weakening lines on the front and back have an average distance of no more than 30 mm, in particular no more than 15 mm."

IX. Claim 1 according to auxiliary request II additionally comprises the features of granted claim 3 compared to claim 1 according to the main request

"and that the weakening lines on the front and back, which are aligned in the same direction, can be brought into contact at least in sections along opposite areas of the front and back and in particular lie on the same line."

X. Claim 1 according to auxiliary request III additionally comprises the features of granted claim 9 compared to claim 1 according to the main request

"and that the longitudinal extent of the rear side, measured from the base end to the opening end, is at least twice, in particular at least three times, the longitudinal extent of the front side, measured from the base end to the opening end."

XI. Claim 1 according to auxiliary request IV additionally comprises the features of granted claim 11 compared to claim 1 according to the main request

"and further comprising first and/or second sidewall members between the front and back first side edges and the front and back second side edges, respectively."

XII. Claim 1 according to auxiliary request V comprises, in contrast to claim 1 according to the main request, the features of granted claims 11 and 13

"further comprising first and/or second side wall elements between the first side edges of the front and back or the second side edges of the front and back, wherein

the first and/or second weakening lines run from the front or back in the area which, in the respective folded state, extends from the inside fold of the first side wall element to the inside fold of the second side wall element."

XIII. Claim 1 according to auxiliary request VI additionally comprises the features of granted claims 3, 9, 11 and 13 compared to claim 1 according to the main request

"that the rectified weakening lines on the front and back can be brought into contact at least in sections, in particular along opposite areas of the front and back, and in particular lie on the same line, and that

the longitudinal extent of the rear side, measured from the bottom end to the opening end, is at least twice, in particular at least three times, as large as the longitudinal extent of the front side, measured from the bottom end to the opening end, further comprising

first and/or second side wall elements between the first side edges of the front and back or the second side edges of the front and back, wherein the side wall elements constitute side folds that extend in particular from the bottom end of the front and back, and wherein the first and /or second weakening lines run from the front or back in the area which, in the respective folded state, extends from the inside fold of the first side wall element, in particular the side fold of the first side wall element, to the inside fold of the second side wall element, in particular the side fold of the second side wall element ."

XIV. The relevant submissions of the parties are discussed in detail in the reasons for the decision.

Reasons for decision

1. Joint Objection - Representation

In the communication pursuant to Article 15(1) RPBA 2020, under point 4, the Board of Appeal referred to the following factual and legal situation regarding the representation of the joint opponents, which was not questioned or commented on by any of the parties. The Chamber therefore sees no reason to deviate from its preliminary opinion in this regard and confirms it as follows.

The joint objection was filed by Weber Verpackungen GmbH & Co KG and MIBA Plast Ltd. inserted. According to the brief of the representative of the common opponents dated October 12, 2016, MIBA Plast Ltd. in liquidation at the time. Evidence of this was not submitted. In the absence of proof of the further fate of MIBA Plast Ltd. continues to be considered a co-opponent. The resignation of representation for MIBA Plast Ltd. (Briefing dated June 14, 2017) has no effect insofar as Weber Verpackungen GmbH & Co. KG is deemed to be the joint representative of the two opponents under Rule 151(1) EPC.

2. Admission of documents D1.5 and D1.6 to the procedure

2.1 The appellant requested that documents D1.5 and D1.6 not be admitted to the appeal proceedings because they were submitted too late and were not sufficiently relevant. Document D1.6 is a letter from a person not authorized to sign for Keystone that was submitted after the objection period had expired. There is also a lack of an affidavit by this person to remedy this deficiency. Furthermore, there is neither a link nor any recognizable internal connection between documents D1.6 and D1.3 and the alleged public prior use.

2.2 The Board agrees with the appellant that neither the reasons for the decision under appeal nor the respondent's arguments were based on document D1.5.

The question of the admission of D1.5 to the appeal procedure can therefore remain unanswered.

2.3 Document D1.6 was only filed with the respondent's brief of December 20, 2017, ie after the expiry of the opposition period under Article 99(1) EPC. However, D1.6 was brought to the appellant's attention well in advance of the date specified under Rule 116 EPC by which pleadings and documents in preparation for the oral proceedings could be filed.

Therefore, D1.6 is to be considered as a late-filed document in opposition proceedings, the admission of which to proceedings under Article 114(2) EPC was at the discretion of the opposition division.

According to the settled case law of the Boards of Appeal, it is not for the Board of Appeal to review the entire facts of the case like a department of first instance in order to decide whether it would have exercised its discretion in the same way. A Board of Appeal should only overrule the manner in which the division that issued the contested decision exercised its discretion if it concludes that that division exercised its discretion on the basis of the wrong criteria, in disregard the right criteria or in an arbitrary manner (see Case Law of the Boards of Appeal (RdB), 9th edition 2019, IV.C.4.5.2).

In the present case, the opposition division exercised its discretionary power under Article 114(2) EPC to admit late-filed document D1.6 into the proceedings, clearly without procedural error, based on permissible criteria of discretion, by considering the prima facie relevance of document D1.6 as evidence for established the prior use asserted in the notice of opposition (reasons for the contested decision, point II.2.3). According to settled case law, this is a decisive criterion for the admission of late-filed documents (see RdB, loc.cit., IV.C.4.5.3).

Furthermore, the appellant did not claim that the opposition division had made any mistakes in its discretion, but rather based its submissions essentially on the fact that it did not share the opposition division's assessment of the question of the prima facie relevance of D1.6. However, as mentioned, it is precisely not the task of the Board of Appeal to check the content of the result of an exercise of discretion that is otherwise free of procedural errors.

Thus, the board sees no reason to overrule the way in which the opposition division has exercised its discretion and to exclude document D1.6 admitted by the opposition division from the proceedings.

3. Public Prior Use "toasted deli sandwich bag"

3.1 The opposition division decided that the alleged public prior use "toasted deli sandwich bag" was sufficiently proven and consequently comprised the prior art under Article 54(2) EPC with the features listed in the minutes of the visual evidence of D1.

In making this decision, the opposition division relied not only on the inspection of the submitted bag and on documents D1.3 and D1.6, but also on the testimony given by Mr Michael James Longstaffe during the oral proceedings (cf. "Report on the examination of witnesses").

3.2 The complainant denied that the claimed public prior use was sufficiently proven. The appellant's arguments essentially aimed to question the standard of proof applied by the opposition division, the credibility of the witness Longstaffe and the credibility of his testimony.

3.3 Standard of Proof

3.3.1 The appellant took the view that the opposition division had applied the wrong standard for assessing the alleged public prior use and that, contrary to the contested decision, the standard of proof of probability bordering on certainty should be used to assess the alleged public prior use.

The Complainant argued that the Respondent had had contact not only with Smith Anderson but also with McDonald's sourcing partner Perseco/HAVI. Through Smith Anderson, she would have been able to obtain Keystone's records and correspondence. The Respondent's sphere of influence thus extended beyond Smith Anderson to Keystone and Perseco/HAVI. According to the opposition division, the alleged public prior use took place in this sphere of influence. However, this meant that practically all the evidence was within the Respondent's power of disposal. On the other hand, the Appellant, not least as a direct competitor of the Respondent and Smith Anderson, had no access to this sphere of influence.

The standard of proof of complete proof (T 472/92 and T 1776/14) was to be applied, since practically all evidence of the public prior use alleged was subject to the power of disposal and the knowledge of the respondent.

3.3.2 The respondent replied that the evidence was not within the control of the opponent (Weber Verpackungen GmbH & Co. KG; MIBA Plast Ltd. was in liquidation), whereby the opposition division correctly applied the standard of proof of balance of probabilities.

3.3.3 The board does not share the appellant's view. Even if the board followed the appellant's view that practically all the evidence was within the respondent's control and that both parties did not have equal access to the evidence, the board would have to be convinced of the incorrectness of applying the balance of probabilities principle in the present case to consider the standard of proof used by the opposition division for the assessment of evidence to be incorrect. This is because the board applies the board's conviction as the standard of proof in the appeal proceedings. However, the board is not convinced by the appellant's arguments for the following reasons.

Although the opposition division's assessment of evidence fell under the standard of proof of balance of probabilities, the opposition division did not disregard in its assessment and clarified that, under the principle of balance of probabilities, it is not sufficient that the alleged facts are merely more probable; the opposition division must be satisfied of its correctness (decision under appeal, page 12, fourth paragraph; T 545/08, points 4-11 of the Reasons).

It follows that the opposition division did not base its assessment solely on the question of whether the alleged fact that the bags were supplied by Smith Anderson Packaging Limited to Keystone Distribution UK Ltd. and from Keystone to McDonalds was beyond the Respondent's control was more likely, but that she believed it to be true. The opposition division thus linked the application of the standard of proof to its belief in the correctness of the alleged facts.

The board is therefore not convinced that the application of the balance of probabilities principle was incorrect, especially since the opposition division was convinced of the correctness of the alleged facts. In this respect, the board agrees with the statement in T 768/20, Reasons No. 2.1.2, fourth paragraph.

3.4 Credibility of the Witness

3.4.1 The opposition division saw no reason to doubt the credibility of the witness Longstaffe because he had denied the question of economic or personal interest. Mr Longstaffe is the managing director of Smith Anderson Packaging Limited, which manufactured the prior-use bags. However, it does not follow from this that Mr Longstaffe had a personal economic interest in the outcome of the opposition proceedings (reasons for the contested decision, page 10, third paragraph) .

3.4.2 The appellant argued that the opposition division's assessment was unjustified, that the credibility of the witness Longstaffe was not objectionable because, contrary to his testimony (minutes of the hearing of witnesses, page 1: "No, I don't believe so .") have a special personal and economic interest in the outcome of the proceedings. This is shown by the fact that Mr. Longstaffe's statements show that McDonald's was the largest customer of the Smith Anderson company, which Mr. Longstaffe was the managing director of (witness hearing record, page 12, last paragraph: "Almost 50% of our business is with McDonald's"; and page 37, first paragraph: "McDonald' If the patent in suit is maintained, the Smith Anderson Group faces a possible infringement lawsuit. The statements of the witness as managing director of Smith Anderson are therefore burdened with the stigma of bias. If the patent in suit is maintained, the Smith Anderson Group faces a possible infringement lawsuit. The statements of the witness as managing director of Smith Anderson are therefore burdened with the stigma of bias.

3.4.3 The Board notes that the witness Longstaffe initially denied the question of any economic or personal interest in the outcome of the opposition proceedings. However, his statements did not completely rule out such an interest.

However, the board is convinced that the discrepancies highlighted by the appellant do not call into question the credibility of the witness, so that the reliability of the entire testimony should be called into question and should not be taken into account as a whole.

The board therefore sees no reason to deviate from the opposition division's assessment of the Longstaffe witness as credible.

3.5 Credibility of the testimony of the witness

3.5.1 The opposition division was satisfied of the credibility of the testimony of the witness Longstaffe (reasons for the decision under appeal, page 10, third paragraph).

3.5.2 The appellant criticized the opposition division's view and argued that there was no consistent and uncontradictory witness testimony.

According to the complainant, there were contradictory statements by the witness at the time of the field test (see also D1.2 and D1.4). Nevertheless, the opposition division based the decision under appeal on a field test in April 2007. Furthermore, there is no evidence for such a field test. As for the whereabouts of the alleged 72,000 field test bags, the witness Longstaffe only stated that they went to one of McDonald's three distribution centers in the United Kingdom. No proof was provided for this either. In the absence of submission of evidence for the field test, this was not made credible.

Furthermore, there were no delivery notes to prove the alleged public prior use and to substantiate the witness testimony.

In addition, the witness could not have clarified the lack of assignment of D1.3 and D1.6.

Also, the Respondent did not provide any evidence that the bag according to Document D1/D1.1 was one of the bags that were delivered to Keystone. There is no confirmation of the actual design of the bag and therefore doubts about the type of bag, especially since, according to witness statements, there were three different development products from March to May 2007.

The complainant contested that the D1/D1.1 bags were made public by a delivery to Keystone Distribution UK in April 2007. Because there was no evidence that the sealed bag packs delivered to Keystone had been opened and that Keystone had had access to the bags. There was no evidence that the bags delivered to Keystone were inspected.

Therefore, the evidence for the alleged public prior use is incomplete overall.

3.5.3 The [appellant] has brought up a large number of possible gaps and alleged contradictions in the testimony of the witness. However, this does not convince the board that the opposition division's conclusion that there was public prior use was incorrect.

According to established case law, a document does not have a higher probative value than witness statements, since the evidence is not listed in any order in Article 117(1) EPC (RdB, loc.cit., III.G.2.2d); T 918/11).

The evidence of the testimony thus has the same value as any other evidence referred to in Article 117(1) EPC. The probative value of the testimony of the witness Longstaffe is therefore not devalued by a missing document or a missing piece of evidence, contrary to the view of the [appellant].

Therefore, Mr. Longstaffe's testimony must be assessed as such. In this context, the chamber considers the testimonies of witnesses to be logical and coherent overall, especially with regard to the alleged inconsistencies and contradictions cited by the complainant, such as the field test, the missing delivery notes and the design of the bags, with the essential points being mentioned that opposition division based its decision on.

With regard to the appellant's objection to the lack of evidence that the sealed bag packs delivered to Keystone were actually opened and the bags inside were inspected, the board notes that the publicity of the alleged prior use is irrelevant. As stated in the contested decision, Keystone Distribution, as the owner of the bags, had the opportunity to open boxes and examine the contents. The bag was therefore made available to the public when it was delivered to Keystone Distribution (reasons of the contested decision, page 12, second paragraph).

3.6 In the notification pursuant to Article 15 (1) RPBA 2020, the Board of Appeal pointed out the following factual and legal situation regarding further objections by the appellant regarding credibility and credibility under points 7.1.2 to 7.1.4, 7.1.6, 7.4 and 7.5 (see points 3.6.1 to 3.6.6 below) which have not been questioned or commented on by any of the stakeholders. The Chamber therefore sees no reason to deviate from its preliminary opinion in this regard and confirms it as follows.

3.6.1 In the statement of grounds of appeal, the appellant stated that doubts arose as to the credibility of Mr. Longstaffe's statements, since he was unable to give an exact time when he was appointed CEO in 2007 when questioning witnesses. On the other hand, he was able to determine delivery dates and quantities for a single product from Smith Anderson's entire product portfolio in 2007 to the day (reasons of appeal, point III.4 b)).

In this respect, the appellant formally criticized the opposition division's assessment of the evidence, but in the end it aimed for a factual statement by the witness. The board agrees with the respondent (Response of Appeal, points 3 to 5) that the contested decision was not based on this objection. Thus, the admission of this submission is at the discretion of the Board under Article 12 (4) RPBA 2020.

The Board agrees with the Respondent that the Appellant could and should have asked the witness during the taking of evidence by hearing the witness why he could not remember the exact day when he was appointed CEO if that question had been relevant to her. This objection by the appellant relates to facts that could have been clearly clarified in the opposition proceedings as a suspicion during the taking of evidence by questioning the witness. The objection could also not be followed up without further ado, since the witness would have had to be questioned or would have to be questioned.

Even during the subsequent discussion of the result of the taking of evidence in the oral hearing before the opposition division, the credibility of the witness was not called into question on the basis of this fact.

Therefore, the Board sees no reason, in exercising its discretion under Article 12 (4) RPBA 2020, to consider this objection in the proceedings, as requested by the Respondent.

3.6.2 The appellant stated that there was a contradiction between a testimony under D1.4 (page 3, last paragraph) and the testimony before the opposition division (page 13, last paragraph, of the minutes of the witness examination). According to D1.4, the witness testified that McDonald's does not accept opened sachet packs. On page 13, last paragraph, of the record of the hearing of witnesses, however, it is noted that controlled products, if they are not objectionable, are closed again and returned to the transport pallet (reason for complaint, point III.4 c)).

The Chamber sees no contradiction in the testimony of the witness. Because according to the opinion of the Respondent, the witness Mr. Longstaffe did not state that tested pouch packs were sent to McDonald's.

3.6.3 The Appellant argued that the statements made by the witness Longstaffe regarding an owner of several McDonald's branches in Scotland were contradictory (Statement of Complaint, point III.4 d)).

The Board agrees with the Respondent that page 4, lower section, taken together with page 20, last paragraph, of the minutes of the hearing of witnesses shows that towards the end of 2006 Mr Longstaffe and the manager of a local McDonald's restaurant came up with the idea of ​​the perforated line was developed, but not by the franchisee. Thus, contrary to the complainant's opinion, Mr Longstaffe did not have to correct himself, but merely confirmed that the franchisee he personally knew was not on site. Therefore, there are no contradictory statements by the witness about the franchisee he personally knows.

3.6.4 The complainant noted that Mr Longstaffe used the subjunctive form throughout almost all of his statements. Therefore, Mr. Longstaffe's statements have an element of arbitrariness (statement of appeal, point III.4 f)).

The Board is not convinced that the use of the subjunctive affects the credibility of the testimony and the credibility of the witness Mr Longstaffe, especially as the appellant's arguments in this regard are to be regarded as rather cursory and unsubstantiated without concrete indication of a corresponding testimony by the witness.

3.6.5 The appellant submitted under point III.8 of the statement of grounds of appeal that the WRIN number and a delivery date were missing from the invoice D1.3. A connection between the bags for the field test and the invoice D1.3 is therefore purely hypothetical. There is also no connection between the field test bags allegedly delivered to Keystone and the bags allegedly delivered to the McDonald's Linwood branch.

According to the Respondent, D1.6 indicates the full WRIN number (which is also found on D1 and D1.1) and Keystone confirmed that they shipped these bags to McDonald's.

For the rest, the Board follows the reasons of the contested decision (page 11, third to fourth paragraphs), in which the contexts questioned by the appellant are presented.

3.6.6 According to the appellant, D1.6, as a single statement by a person who is not authorized to sign, should be denied prima facie relevance (point III.9 of the statement of grounds of appeal). Delivery notes or the like should have been provided to substantiate D1.6 and as an essential part of the evidence for an alleged public prior use (point III.10 of the statement of grounds of appeal).

The board does not share the appellant's view. On the one hand, the opposition division has already established the prima facie relevance of D1.6 for the alleged prior use in view of the patent proprietor's objections in this regard (decision under appeal, points II.2.1 and II.2.3). The Board sees no reason to depart from this finding (see point 2.3 above).

Second, according to the contested decision, page 11, last paragraph, D1.6 confirms that Keystone Distribution received bags with WRIN 02135042 and sold part of them to McDonald's Linwood in April and May 2007. The fact that a delivery to Keystone Distribution took place is also supported by the further evidence D1.3 and the witness statement. Therefore, the Board is not convinced that additional delivery notes or other evidence are required to substantiate D1.6 and the public prior use claimed (see point 3.5.3 above).

It is also not clear why information in a declaration signed by an employee of Keystone Distribution would not have probative value because she might not be "authorized to sign", i.e. not authorized to carry out legal transactions on behalf of the company.

Contrary to the appellant's opinion, the opposition division also did not overlook the fact that D1.3 and D1.6 cannot be compared with regard to the amounts listed therein. According to the contested decision, page 11, last paragraph, to page 12, first paragraph, the reason for this was that there was a time delay between deliveries to Keystone Distribution and further deliveries to McDonald's and that deliveries of the bags took place frequently.

3.7 The appellant's arguments are therefore not convincing of the incorrectness of the opposition division's finding, which is also based on the personal impression that the opposition division gained during the examination of the witnesses, that the credibility of the testimony and the credibility of the witness Mr. Longstaffe are not in doubt.

The Board is of the opinion that the testimony as a whole is to be regarded as very clear and detailed with regard to the issues relevant to the decision and that it provides a consistent and complete picture with regard to the public prior use to be proven. The opposition division did not err in linking the assessment of the evidence to its conviction. The alleged inconsistencies and lack of connection cited by the complainant are not considered sufficient to undermine the probative value of the witness testimony.

The board is thus not convinced that the opposition division's assessment of the evidence was incorrect. Therefore, the board shares the opinion of the opposition division in the decision under appeal that on the basis of the witness statements, D1, D1.3 and D1.6, the alleged public prior use of the "toasted deli sandwich" bag is sufficiently proven.

Consequently, it forms part of the state of the art under Article 54(2) EPC with the features listed in the minutes of the taking of evidence by visual inspection of D1.

4. Novelty to public prior use "toasted deli sandwich bag"

4.1 According to the contested decision, the subject matter of claim 1 of the main request and auxiliary requests I to VI was not considered new in the light of the prior use "toasted deli sandwich bag".

4.2 It is undisputed that the previously used bag discloses all the features of claim 1 according to the main request and according to auxiliary requests I to VI.

4.3 Therefore, the previously used bag anticipates the respective subject-matter of claim 1 according to the main request and auxiliary requests I to VI in a novelty-destroying manner (Articles 100a) and 54(2) EPC).

Order

For these reasons it is decided:

The appeal is rejected.

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