SONN Patentanwälte – IP Attorneys

Verifiability of the free evaluation of evidence

With regard to the evaluation of the relevant facts by the Opposition Division, it must be considered that the principle of free evaluation of evidence is recognized to apply before the EPO, which must also impact the review in appeal proceedings. To the extent that there is no error in the application of law (e.g., because a wrong standard of proof was applied), a Board of Appeal should therefore only set aside the evaluation of evidence of a deciding body of first instance and supersede it by its own if the deciding body of first instance recognizably - (i) failed to consider essential aspects, or - (ii) included irrelevant considerations; or - (iii) violates the rules of logic, such as logical errors and contradictions in the reasoning of decisions (EPO Board of Appeal, 17 July 2020, T 1418/17).