Evidence of a written disclosure

During the examination, the burden of proof lies with the Examiner (Guidelines G-IV 7.5.3).

If one of the Examiner’s arguments is that « it is well known to the person skilled in the art« , and the applicant disputes it, they will have to prove it using documents (Guidelines G-VII 3.1).

Evidence of an Internet citation

When the citations are Internet pages, the standard level of proof should be used: the balance of probabilities (T286/10, T2339/09 and T990/09 or even T2227/11).

The proprietor has the burden of casting sufficient doubt to destroy this presumption, more than just invoking a general lack of reliability of the site.

This level of requirement is much lower than the level of proof once required by some decisions: beyond any reasonable doubt (T1134/06).

Evidence of an oral disclosure

Principle

The evidence provided must be examined in a very critical and strict manner (Guidelines E-IV 4.3) and the certainty of the examining/opposition division must go beyond any reasonable doubt (T97/94, as all the means of proof relating to a public prior use are in the possession of the opponent).

Clarifications on the standard of proof

The standard of proof « beyond reasonable doubt » does not require absolute certainty. It is sufficient that the majority of the members of the decision-making body have no reasonable doubt as to the occurrence of an alleged fact (T832/22; see also G2/21).

Case of conference proceedings

Some consider that the conference proceedings are faithful to the presentations that were made (Guidelines G-IV 1 and Guidelines G-IV 7.4) until the applicant contests them with legitimate reasons. At the opposition stage, the opponent must provide proof to the contrary.

However, if the proceedings are published more than 6 months after the conference, the faithfulness of these proceedings can be questioned (T153/88 and T384/94).

Case of the conference speaker’s testimony

Proof of oral disclosure cannot be provided by having the conference speaker testify (T1212/97 and Guidelines G-IV 7.4), as they are in a very different position from the various parties (e.g., their disclosure certainly seemed clear to them while their audience may have understood nothing).

Similarly, it is unlikely that the speaker will remember everything they said several years later (T843/15).

Case of the presentation support (Powerpoint)

One cannot simply assume that an oral disclosure exactly matches its written support (T843/15).

If a speaker gives an oral presentation based on a slide show, this document can establish a presumption of the content of the presentation, but this document, in itself, is not sufficient to guarantee that the content of the slide show was actually presented in full and, if so, in an intelligible manner.

To determine what information was actually disclosed to the public during an oral disclosure, it is therefore generally necessary to provide additional evidence, such as statements or written notes from the public or a handout distributed to the public.

Evidence of prior use

The level of proof expected for the evidence of prior use is « beyond reasonable doubt » (T97/94) when this proof is in the hands of the opponent.

However, if the proof is provided by a witness who is not in the immediate sphere of the opponent (e.g., an independent supplier, T734/18), then the balance of probabilities may apply.