SONN Patentanwälte – IP Attorneys

EPO case law: In opposition appeal proceedings, the principle of production of evidence applies

The publication date of a citation prior to the priority date may permissibly be contested by the patent proprietor if there are contradictory indications of the publication date (in the specific case in relation to a thesis which is dated considerably prior to the priority date but bears a library entry stamp with a date considerably later than the priority date). If the opponent, who carries the burden of production and proof in this respect, does not react in a substantiated way to this contest, this citation cannot be used by the BoA as prior art, since the principle of production of evidence applies in opposition appeal proceedings due to their nature as contentious proceedings and the principle of examination by the EPO on its own motion (Art. 114(1) EPC) is thus limited (EPA-BoA 10 October 2017, T 2501/11, Verkehrszeichenerkennung und Navigation/Bosch).