Key points
- This decision is about a correction of an error in the specified name of the opponent under Rule 139. The Board also recalls the general principle that: “Once a party has submitted conclusive proof of its allegations, it has complied with the requirement of the burden of proof. The evidence need not prove the facts with absolute certainty in order to be deemed conclusive; it suffices that it proves that they are highly probable. If a party has discharged its burden of proof, the counterparty seeking to refute the conclusively established facts by way of counter-arguments bears the burden of proving the alleged facts” ( verbatim in CLBA 10th ed. III.G.5.2.1)
- As a comment, the part in italics can be a bit confusing. The German original is T 1162/07 and differs in the part in italics: " Hat eine Partei ihrer Beweislast genügt, so trägt die Gegenpartei, die die so überzeugend belegten Tatsachen durch Gegenargumente zu entkräften versucht, für diese die Beweislast". "Diese" may refer to "Gegenargumente".
- As a comment, I think that the counterparty has the burden to disprove the alleged facts, i.e. to provide counter-evidence.
- The Notice of opposition was filed with a different name in Form 2300E than in the Notice. The opponent requests a correction of an error under Rule 139, the name in Form 2300E being incorrect.
- G 1/12 requires that the request for correction is filed "without delay".
- The Board: " It is clear that such delay can only start once a party has become aware of its error."
- Still, the opponent's statement as to when it became aware of the error, is checked for objective evidence: "In view of the above, the Board has no reason to doubt the opponent's submission that it only became aware of the incorrectness of the name indicated on Form 2300E on 13 October 2016, when checking the European Patent Register. The Board thus concludes that the request for correction under Rule 139 EPC was filed without delay."
EPO
The link to the decision is provided after the jump, as well as (an extract of) the text of the decision.
source http://justpatentlaw.blogspot.com/2023/01/t-087418-discharging-burden-of-proof.html
