Friday, March 25, 2016 T 2054/11 - Witness not a gap-filler

In this opposition appeal, the appellant alleges that the Opposition Division committed a substantial procedural violation in that it failed to hear a witness.

The case concerns an alleged public prior use. During opposition proceedings, the opponent (now appellant) attempted to substantiate the public prior use (i.e., the "what, when, how...") by submitting, amongst others, an affidavit of a witness (mr. Steinparzer).

However, the Board concludes that the opponent had at no point in the procedure explicitly named mr. Steinparzer as a witness to be heard, nor requested him to be heard, nor indicated why mr. Steinparzer was to be heard. As such, the Board concludes that the Opposition Division did not commit a substantial procedural violation by refraining from hearing the witness.

The Board further concludes that hearing the witness would also not helped the opponent's case, since the opponent apparently relied on the witness to fill 'gaps' in the substantiation of the public prior use since it was found to be incomplete. However, the Board confirms that witnesses can only be used to 'harden' the substantiation, but not to fill gaps therein.