Certainty

In T1624/21, a decision of the Examining Division (ED) to refuse European patent application no. 17159000.3 was appealed by the patent proprietor (P).

In its reasoning, the Board explained that, according to established case law of the boards of appeal, the applicable standard of proof to assess whether a specific statement of fact is true or not was the balance of probabilities. The ED further stated that, because the claimed antibody was only defined by a linear epitope to which it bound, the P did not discharge themselves from the burden to provide the necessary evidence that the antibody disclosed in D6 and D7 did not bind to the claimed epitope or at least a part of it. The P disagreed with the decision of the ED and considered that a wrong standard of proof had been applied to assess novelty. Specifically, the ED considered that the P’s arguments in support of novelty of the claimed subject-matter did not help the instant authority to ascertain with absolute certainty that the functionally defined antibodies as claimed met the novelty criteria under The Board of Appeal (The Board) agreed with the P and confirmed that on issues arising before EPO departments, the applicable standard of proof to assess whether a specific statement of fact is true or not is the balance of probabilities. The P disagreed and argued that the ED had applied the wrong standard of proof and that decisions on issues arising before EPO departments did not need to be based on absolute conviction.