T 0955/24 - On offering a witness

Key points

• The opponent cites D3, a paper of a conference presentation, as prior art. The presentation was given by an independent third party. As supporting evidence, the opponent submits "D4 | Facebook excerpts from the FuturePack Conference, September 10, 2019 " and D12, a declaration of the speaker, Ms. Nilsen.
• The proprietor contests that the presentation was sufficiently proven, also in appeal. The proprietor is the appellant. 
• The Board, in translation: "The conference at which the lecture containing the disputed content was given was public. It was not organized by the opponents, and neither the speaker, Ms. Nilsen, nor Mr. Myhre, who also attended the lecture, were employees of the opponents. Thus, the situation differs from a case of manifest prior use, where all evidence is exclusively in the hands of the opponents. "
•  The Board, in translation: " In this context, it must be taken into account that the appellant [proprietor] expressly objected to the examination of the witnesses offered by Opponent 1 during the opposition proceedings [ ausdrücklich gegen eine Vernehmung der seitens der Einsprechenden 1 angebotenen Zeugen aussprach] and did not request such an examination in the appeal proceedings either. For the opposition proceedings, the appellant justified this by stating that it was not her task to fill gaps in the opponent's evidence. However, this argument misses the point. Given the circumstances of the present case, the patent proprietor could have attempted to refute the evidence presented by the opponent, for example, by examining witnesses not attributable to the opponent, such as Ms. Nilsen and Mr. Myhre. However, she did not avail herself of this opportunity. "
• "Furthermore, as already explained above, with regard to statement D12 [of Ms Nilsen], witness testimony was offered by Opponent 1, complementing D3, D4 and D12. This witness testimony was rejected by the appellant and not taken up by the Opposition Division. This request was conditionally maintained by the opponents in the appeal proceedings, but was not requested by the appellant in the appeal proceedings either. The Board considered the examination of these witnesses unnecessary due to the probative value of the written documents. "
• As a comment, I'm not entirely sure what it means to offer a witness, at least in terms of EPO proceedings. Perhaps it means a conditional request to hear a witness, with the condition being that the other party disputes the evidence and/or that the OD cannot accept the asserted facts as sufficiently proven based on the other (documentary) evidence. Any comments are welcome.

EPO 

The link to the decision is provided after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/t240955du1