T 0239/20 - (II) Review of findings of fact (IV)

Key points

• Board 3.2.01 reviews the OD's finding, that the alleged public prior use was proven, for errors in the reasoning. The Board seems to follow its earlier decision T1418/17. See also T 1604/16 of Board 3.2.02.
• The Board: "The reasoning of the Opposition Division in this respect is free of any error as regards the underlying facts and the evaluation of the evidence is also free of any contradiction."
• "Bearing in mind the principle of free evaluation of evidence [...] the Board concludes that there is no reason to overturn the evaluation of the evidence made by the Opposition Division in its decision in this respect."
• The Board hence seems to apply a deferential standard of review, as opposed to a de novo review. As a comment, this standard may possibly follow from the nature of appeal proceedings (i.e. to review 'in a judicial manner' the appealed decision including any findings of fact therein, Art. 12(2) RPBA). 

EPO 

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

https://www.epo.org/law-practice/case-law-appeals/recent/t200239eu1.html

9. Evidence - availability of the public prior uses of the contested decision

9.1 The child car seats of the type Triumph with the technical features established during the inspection before the Opposition Division and its manual A2, as well as child car seats of the type Apollo as documented in the pictures A17 and the manual A14 are prior art under Article 54(2) EPC.

9.2 The patent proprietor contested regarding the alleged public prior uses Triumph and Apollo merely their availability to the public. In particular, the Opposition Division erred in its evaluation of evidence since the availability of these public prior uses was not proven beyond any reasonable doubt and the witness Mr. Dahle was not credible.

9.3 The specific arguments put forward by the patent proprietor in this respect in the statement of grounds of appeal were duly taken into consideration by the Opposition Division in its decision. The patent proprietor did not either refute the view of the Opposition Division that the seats Triumph and Apollo have been mass produced before the priority date of the patent in suit.

9.4 The reasoning of the Opposition Division in this respect is free of any error as regards the underlying facts and the evaluation of the evidence is also free of any contradiction.

9.5 Bearing in mind the principle of free evaluation of evidence which pertains to established case law of the Boards of Appeal (see Case Law of the Boards of Appeal of the EPO, 9th Edition, III.G.4.1) and applies before the European Patent Office (see also G 3/97, reasons point 5, G 1/12 reasons point 31), the Board concludes that there is no reason to overturn the evaluation of the evidence made by the Opposition Division in its decision in this respect.