T 1199/22 - When must a witness be heard?

Key points

• When must an offered witness be heard by the OD? 
• "Opponent 3 criticised that the opposition division took this decision - that the alleged prior use did not form part of the state of the art - without hearing the witnesses Mr Weist and Mr Schubert, because the witnesses had not only been offered to confirm that the meeting to which D24 relates took place, but also to testify as to the participants and the contents of the meeting (opponent 3's notice of opposition, page 10, as reproduced in opponent 3's statement of grounds of appeal, page 7). This included the delivery. Opponent 3 also criticised the fact that the witness Mr Hasenclever was heard on the contents of D24 instead of the witnesses that had been offered in relation to it. In their opinion, not hearing the witnesses Mr Weist and Mr Schubert affected the outcome of the decision."
• "The opposition division found that the presentation D24 and the general statements by the witness Mr Hasenclever did not prove beyond reasonable doubt the actual delivery of the foils to Hueck, and that considerable doubts remained as to the public nature of the delivery, if any (point 2.4.2 of the impugned decision). The opposition division was of the opinion that the alleged deliveries in the presentation D24, page 11, could be considered to be more likely than unlikely, but it concluded on the basis of D24 and Mr Hasenclever's testimonial (who, however, did not participate in the relevant meeting) that "absent any indications to the contrary" there were doubts as to the public nature of the alleged sales in view of the applicable standard of proof, beyond reasonable doubt (ibid.)."
• The Board: "the witnesses Mr Weist and Mr Schubert had been offered to testify as to the content of the meeting, which included the delivery of the foil because this meeting (in the form of the internal presentation D2
• 4) was provided as the (only) evidence of the delivery (opponent 3's notice of opposition, page 10, second and fifth paragraphs). In the light of the above, it is not possible to exclude the possibility that the opposition division might have come to a different conclusion if it had heard the witnesses Mr Weist and Mr Schubert on the content of this meeting."
• " Furthermore, the alleged prior use with order number 709.437-01 seems to be highly relevant because it allegedly relates to a foil having a relevant chemical composition (D27), ... "
• "In particular, it may be more relevant than the other prior art under consideration, and - if proven - may thus be decisive for the outcome of the case. For these reasons, it appears equitable that the witnesses Mr Weist and Mr Schubert should be heard before deciding on the public availability of the prior use "Hydro/Hueck"."
• The case is remitted.

EPO 

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

https://www.epo.org/en/boards-of-appeal/decisions/t221199eu1