T 0449/23 - (II) On evidence (in general)

Key points

• The Board provides a useful overview of the general rules on evidence. 
• (a) The legal burden of proof is the duty of a party to persuade the deciding body of allegations of facts on which the party's case rests. In principle, a party must prove alleged facts (assertions) from which it infers a legal consequence, i.e. which establish the basis for the party's legal claims. Thus, the allocation of the burden of proof depends on a party's substantive case.
• (b) To discharge its legal duty of persuasion, a party must prove the alleged facts by appropriate evidence to the required standard of proof. The party with whom the legal burden of proof lies therefore bears the risk that the alleged facts remain unproven, i.e. that the deciding body has not been persuaded in accordance with the required standard of the existence of these facts. In this case, the deciding body will decide against that party and reject its legal claims. Thus, the legal burden of proof requires the production of appropriate evidence to persuade the deciding body to the required standard.
• See also my recent analysis of T2463/22 of a (possibly) somewhat different approach. 
• (c) In principle, the legal burden of proof does not shift. References in the case law to a shift of burden of proof relate to the so-called evidentiary/evidential burden of proof (see for this distinction T 741/91, point 4.3). The notion of evidentiary/evidential burden of proof relates to the state of the evidence produced in the course of proceedings. Once the party bearing the legal burden of proof has adduced sufficient evidence to support its allegations of facts to the required standard of proof, the onus is on the adverse party to rebut the asserted facts by adducing appropriate evidence. Otherwise, the adverse party risks that the deciding body is persuaded of the existence of the facts and allows the claims. Thus, if the party having the legal burden of proof has made a "strong case" by filing convincing evidence, the onus of producing counter-evidence shifts to the adverse party (see e.g. T 859/90, reasons, points 2.2.2 and 2.2.3). However, this does not mean that the legal burden of proof is on the adverse party to prove the non-existence or the contrary of asserted factual allegations. It is sufficient that the adverse party raises substantiated doubts that prevent the deciding body from being persuaded of the existence of the alleged facts.
• In practice, of course, and differently from Dutch civil procedure, parties are not informed of such a shift of the evidentiary burden, and the Board does not invite parties to submit counter-evidence. 
• (d) In opposition and opposition-appeal proceedings, each of the parties carries the legal burden of proof for the asserted allegations of facts on which their respective substantive case rests.
• This seems correct, though a somewhat open question is whether the standard of review of factional findings by the opposition division is deferential or de  novo, with a related question about whether the burden of proof of the appellant can be different from the one in the first instance procedure. 

EPO 

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

https://www.epo.org/en/boards-of-appeal/decisions/t230449eu1