Technical contribution to the invention in the presence of measurement data

The two standards of proof traditionally relied upon by the EPO Boards of Appeal – the “balance of probabilities” and the “beyond reasonable doubt” tests – can be applied in straightforward cases. However, this binary approach may prove excessively formalistic and over-simplified in more complex situations. Where evidence whose public availability before the patent’s priority date is in dispute lies neither within the opponent’s sphere of influence nor within a neutral sphere accessible to both parties, neither standard can be applied without qualification. In such circumstances, the deciding body must be convinced, in the light of the particular facts of the case and the pertinent evidence, that the alleged fact is established (EPO BoA 12 Sep 2024, T 1311/21).