Posted in Free/Libre Software, Kernel, Microsoft at 10:18 am by Dr. Roy Schestowitz
Summary: If technical issues are being disguised using colours and genders (among other things), then it’s important to highlight who’s behind it (what company/ies) rather than fling back insults at people because it makes things worse
IT’S NOT too uncommon to see terms like “SJW” thrown around to discredit people who potentially cause trouble, borderline troublemakers who call people whom they don’t agree with (on technical grounds) “racist”, “sexist”, “rape apologist” and so on.
“Since corporations can be held accountable for staff that defames senior and prominent Linux developers, rather than take it out on the people who are often unwittingly exploited (taking down critics of some corporate objectives) try to work ‘in reverse’ or go ‘up the chain’, finding out whose agenda is served and why. Show it to them.”Calling such troublemakers names isn’t going to help. The common enemy here is/are the corporations that hijack (and therefore harm/dilute) these social causes to advance potentially harmful agenda, such as back doors, DRM, software patents and so on. We’ve given several examples over the years, even recently in relation to the founder of Linux and his longtime filesystems right hand (Linux and Ted, respectively).
May we suggest something? Since corporations can be held accountable for staff that defames senior and prominent Linux developers, rather than take it out on the people who are often unwittingly exploited (taking down critics of some corporate objectives) try to work ‘in reverse’ or go ‘up the chain’, finding out whose agenda is served and why. Show it to them. Explain how ridiculous a concept it is that Microsoft supports minorities and women (Microsoft faces many lawsuits from those who dispute that to the point of suing) while it’s inserting literally sexist code into Linux, the kernel. I’ve actually seen some Microsoft staff trying to leverage the “sexist” card against Techrights (it didn’t go far as it was baseless) and it’s all too familiar. To the point where it’s better not to name people whom/whose actions you criticise, especially if they’re not male and Caucasian (criticism of a company or an employee’s action can be spun as ad hominem and bigoted). A decade ago a lot of these tactics were leveraged against Richard Stallman, who is a vocal proponent of feminism, equality and so on. We wrote about it a lot back then. █
Permalink
Send this to a friend
Posted in Deception, DRM, GNU/Linux, IBM, Kernel, Microsoft, Red Hat at 9:58 am by Dr. Roy Schestowitz
Recent: Azure Running GNU/Linux Isn’t About ‘Love’ But About Control
Summary: Linux, the kernel, has become a corporate playground or a sandbox that’s used to upsell proprietary software, including surveillance; freedom in Linux is gradually being diminished if not completely obliterated and it does not worry the foundations entrusted to guard against it
THE urgent need to return to old topics (hence this reader consultation) was realised some time last year, especially after we had seen various groups — OIN included — becoming mouthpieces of Microsoft and its PR/reputation laundering campaigns (e.g. "Microsoft loves Linux" at OIN). Months ago we also saw Microsoft staff (on Microsoft’s payroll) entering the Board of OSI, then speaking for the OSI in the OSI’s official blog. We responded similarly to the Microsoft/Novell deal, which yielded various other lies. Now there’s the IBM/Red Hat problem. As we noted last night, Alexandre Oliva, who refused to pursue (software) patents at Red Hat, very recently left the company. It’s pretty significant because he was one of the few in that company who truly valued Software Freedom (as in Free/libre software in its purest form). He told me he had declined this push for patents and days ago he told me that he no longer works for Red Hat. These companies no longer attract these high-calibre developers. These companies become incompatible with them. It’s not the developers who change; it’s those companies that change (Oliva cited problems associated with the company’s move to “the cloud” and some likely proprietary, privacy-hostile tools).
All of these things very much matter to Software Freedom (perhaps we should start capitalising that). “It is relevant to the OSI because the LF [Linux Foundation] is using its position to weaken and undermine the GPL rather than advance its for its advantages,” one reader told us. “However … As mentioned, I think the fundamental premise of the LF is wrong: it’s currently about representing the members’ interests inside Linux rather than advancing Linux itself and representing it to the world. That would be a very hard situation to turn around now that it has been allowed to develop for so long.”
We often feel guilty for, having covered European matters so closely for a number of years, dropping the ball on the LF situation. We barely wrote about it until earlier this year, whereupon sources came forth and gave us a lot of additional, invaluable information. Days ago Benjamin Henrion quoted his deceased friend, who suggested starting new initiatives rather than trying to repair broken ones. “I was thinking of that as an option as one way of ‘turning around’ the situation,” one reader then told us, urging us to cover these things at Techrights rather than pressuring the likes of OSI or LF to do the same. “For a new [Linux] foundation to have any relevance,” he added, “it falls nearly 100% on Linus being willing to pull up stakes and move to it. He still owns the trademark but is probably still uninterested in the bureaucracy. And all of that will involve a lot of money. I presume the current group has him tightly by the mortgage and college bills.”
Speaking personally, I’ve become more sympathetic towards Torvalds after what they did to him last year, indirectly removing (or shaming) him from his own project, even if just temporarily. It reminded me of what happened in Docker after Microsoft had gotten involved (Docker is nowadays in Microsoft’s pockets and the founder, who originally came from Red Hat, was pretty much ousted).
Looking at the latest from the Linux Foundation and Linux.com, I am rather frustrated. It has a very long history (OSDN, OSTG, then the golden days with Tina Gasperson and others under SourceForge). Over the past few days I kept asking my wife whether to cover this or how to even approach the issue without offending anyone*. It seems as though some generally good people have been ‘co-opted’ by the Foundation (and its corporate overlords), so I don’t think they deserve blasting, let alone naming. Attached to the pockets of millionaires like Jim Zemlin, these people are just desperate for a job or a gig (they’re vulnerable, poorly-paid writers swimming around ‘big sharks’ like Zemlin, funded by proprietary giants). Linux.com essentially shut down back in April, leaving some people unemployed or partly employed. Days ago we noticed that Linux.com sort of came back to life at a very limited capacity of just a couple of paragraphs a day, authored by “swapnilbhartiya” (the RSS feeds give that identity away; he’s sometimes linking to his own blog, where Foundation puff pieces get posted).
“Looking at the latest from the Linux Foundation and Linux.com, I am rather frustrated.”Well, if the Foundation is trying to revive Linux.com with just one writer doing about 2 paragraphs a day, including Microsoft promotion, then it’s using a site called “LINUX” (.com) to promote “Microsoft” and other Linux-hostile interests. Just before the weekend they advertised Microsoft, rendering it not too hard to see what these sellouts really are…
Some time on Friday they published: “Get a digest of original Linux and open source news and tutorials from Linux.com delivered to your inbox weekly.”
So there is at least some intent or a plan to make something of the site. On Friday morning Google News search results for “Linux” included several items from Linux.com, but 50% of the results were actually about Microsoft (promotion of Microsoft and Azure) and a quarter came from the Linux Foundation, so who’s this good for? You search for Linux, you get Microsoft (articles like this one or this one.) This is what Microsoft wants us to see in search results for “Linux”: Azure, WSL and so on.
“Linux.com essentially shut down back in April, leaving some people unemployed or partly employed.”Eric Brown, who used to write for Linux.com, has just done this Azure piece; there are also AWS pieces in similar sites about devices. What we see here has been brewing for a while and it’s getting worse all the time. My wife too complains about it. She wants to post news stories about Linux in Tux Machines, but RSS feeds are stuffed with Microsoft instead. Whose kernel is it now? IBM’s? Microsoft’s? Intel’s? Can we support Linux if it’s led and controlled by companies that use it to spread DRM? And Microsoft patent traps? Remember that Microsoft is still suing over it.
“Can we support Linux if it’s led and controlled by companies that use it to spread DRM?”We recently began wondering if Linux still holds the same promises of freedom the GNU project initially put forth. “I’d say yes for now,” one reader argued. “And especially support Linus himself. If he moves, follow.”
And when asked “what about other OSes?” (as in supporting Hurd, Guix etc.) this reader said: “Yes, though with caution. The FreeBSD Foundation has a very different structure and goal than the LF but is no less out of the sights of Microsoft. OpenBSD is quite insular but maybe a higher priority for Microsoft to crush. There are also trivial side projects like Haiku OS and ReactOS. I’m not in favor of the latter though it still deserves some respect as an Open Source project. There are also major disruptors flying for now under the radar. Fuchsia is the main one there and it carries a lot of danger along with its positive potential.”
This reader went on to expressing his concerns about IBM. “I really don’t know what to do about the IBM/RHT thing,” I confessed. “Or rather, not sure… that too needs to be clearly defined and time will tell (depending on what IBM does)…”
“Proprietary stuff gets built around “Linux” and then sold/rented. That’s not freedom; that’s arguably a ‘lesser’ form of digital slavery.”“I’m neutral on that,” the reader replied. “Close to 20 years ago, IBM invested $1 billion in the kernel and got that money back with profit within the year. So this purchase might turn out to be quite beneficial for RH. However, there is also a different generation involved at IBM now. Some of these have grown up on anti-GPL rhetoric and some have intentionally funded Poettering to name one of their money attacks. The risk I see from IBM is that they might be following the decommoditization strategy outlined in The Halloween Documents. They are in a position to do so, far more than Microsoft is. However, Microsoft is really trying that with Azure and, I suspect, moving more and more departments’ budgets under Azure to give the illusion of growth. Fake-it-till-you-make-it is admired in the business community and those chumps are Microsoft target still.”
IBM won’t profit from “Linux”; it will profit from stuff like RHEL subscription (supporting systemd and Wayland or other Red Hat-centric things when they break); Microsoft profits from Azure and WSL helps Microsoft push Vista 10 at the expense of GNU/Linux. Surely the likes of Torvalds understand that. How they feel about it and what they do (if anything) about it is another question altogether. Proprietary stuff gets built around “Linux” and then sold/rented. That’s not freedom; that’s arguably a ‘lesser’ form of digital slavery.
“Torvalds is wealthy enough to run the kernel on his own, even without a salary.”The Linux Foundation was supposed to prevent one single company from controlling Torvalds (and by extension the kernel) through salaries; at the end, however, it controls him collectively on behalf of companies that are largely hostile towards freedom. So what is really achieved by that? Torvalds is wealthy enough to run the kernel on his own, even without a salary. █
_____
* I’ve said dozens more things in microblogs over the past week or two, but they were not too significant and might cause offense (although likely to those who deserve it… for helping foes of Linux).
Permalink
Send this to a friend
Posted in Site News at 7:24 am by Dr. Roy Schestowitz
Summary: We invite ideas and recommendations for the future of the site, notably which topics and aspects are worth covering as a matter of higher priority
ABOUT EIGHT years ago we asked on at least a couple of occasions what to do next. We asked readers. Why? Because collective thinking and brainstorms are more likely to reach good conclusions. Readers had seen Novell’s collapse and recognised the lingering threat of software patents, including Microsoft infiltration at Nokia (with a warchest of patents), just shortly after the CPTN debacle. Back then, around 2011, things were very different. That was 3 years before SCOTUS deciding on Alice and way, way before 35 U.S.C. § 101 had any real ‘teeth’. Microsoft’s patent war on Android was still in its diapers and it continues to this date (with a new lawsuit earlier this year).
“Software patents have become a bit less of a problem.”Microsoft is still a problem. Software patents have become a bit less of a problem. In our daily links we’ll soon shelve some more news about the USPTO, the latest from Coons, and 35 U.S.C. § 101. The short story is, software patents continue to perish (in courts at least), Andrei Iancu accelerates granting of more such fake patents, and law firms-bribed politicians try to change the law for the third year in a row (we don’t expect anything to come out of it, never mind those fake debates).
On “TM and TR direction” (Tux Machines and Techrights), one reader made some suggestions to us a few hours ago. “Few sites cover software freedom in general,” he explained, “despite (or maybe because of) it being so important. Thus TR should include work towards eliminating even the ghost of software patents because they stand in the way of Software Freedom, and you have good contacts within EPO and the good staff rely on TR coverage because it is the only site doing so. That and, first and foremost, to be really clear, TR should continue advancing Software Freedom in all its forms. IMO.”
“The short story is, software patents continue to perish (in courts at least)…”“More about TR,” he continued, “if you make several inventories and then look at the intersections, the overlap should give strong suggestions about what to pursue. Probably a pen and paper approach would be most thorough.”
“Of each of your connections on social control media, IRC, e-mail, and any forums, what is the main interest for each?
“Then separately, what are you yourself best at and what are you eager to write about?
“Which articles have gotten the most positive responses and why? Which direction do they point?
“Which articles have gotten the most negative responses and why? Of the negative responses, sort away the ones based on dogma or ideology and see what’s left and if those can be addressed.
“What should be covered as a matter of priority and what strategy should be adopted?”“As for random ideas, would a one- or two-month partnership or collaboration with the FSF or OSI be of benefit to both parties? If there is something that you would like to write about or focus on for a time that overlaps with their goals then it might be something to consider.
“Though I’d say the web layouts for both need adjustment so that the columns reflow. Though that’s really superficial considering the amount of effort required. Maybe a cheap, used smartphone with no SIM and just wireless would help there. The main page for TR is way to “busy” and hard to visit or find things.”
Back in April a reader sent us some suggestions, having grown a bit sour/disappointed with the FSF because of inaction on important issues (we also took note of that [1, 2, 3] and had done so for years). Judging by some comments in Diaspora [1, 2], the FSF just isn’t sufficiently concerned about Microsoft anymore.
What do other readers think? What should be covered as a matter of priority and what strategy should be adopted? Suggestions can be sent to bytesmedia@bytesmedia.co.uk which is an impersonal address several of us read. █
Permalink
Send this to a friend
Posted in Europe, Patents at 4:20 am by Dr. Roy Schestowitz
PR tactics, including bribery of publishers and threats to bloggers, only sweep or bury these growing problems under a rug
Summary: The EPO crisis silently deepens because serious problems are lied about, not acknowledged, and the legitimacy of European Patents is greatly diminished, not to mention the EPO’s ability to attract talent
NOTHING has really changed since Battistelli left a year ago. Things are arguably getting worse, albeit silently; it’s all cosmetic. It’s hogwash and PR.
“The EPO has not actually done anything to improve things, except maybe perception.”Staff continues to come under attacks from European Patent Office (EPO) management (remember how António Campinos views "efficiency", notably layoffs and significant salary decreases) and patent quality continues to decrease (which means more software patents, patents on nature and so on).
The EPO has not actually done anything to improve things, except maybe perception. There’s no justice, there’s no quality, laws aren’t being obeyed and the EPC has probably been thrown into a cardboard casket somewhere. There are these “Revised Rules Of Procedure Of The Boards Of Appeal To Come Into Force From 1 January 2020,” as another law firm has just put it. We mentioned this in relation to another law firm and a report (from a publisher associated with law firms) explaining that this is already being criticised by law firms; they know that today’s EPO still besieges judges (won’t listen to them, won’t give them independence) and therefore makes patent justice even harder; oppositions and appeals become harder, more cumbersome, and this means that fake European Patents are easier to get and keep (as long as it remains within the realms of the EPO). To quote the law firm (a loud proponent of patents on life): “The EPO states that the main aims of the revisions are to “increase (i) efficiency, by reducing the number of issues to be treated, (ii) predictability for the parties and (iii) harmonisation”. With regard to point (i), Article 12, paragraphs 4 to 6 of the revised RPBA may make it harder for appealing parties successfully to get new requests, facts, evidence and/or objections admitted during appeal proceedings. Accordingly in cases where it would be advantageous for new requests, facts, evidence and/or objections to be admitted during an appeal, it would be advisable to file the statement of grounds of appeal prior to 1 January 2020 where possible. Presumably also with the intention of increasing efficiency, the revised RPBA allow for an “abridged” decision to be issued under certain circumstances. In particular, according to Article 15, paragraph 7, an abridged decision may be issued if all the parties agree, unless it has been indicated to the Board that a third party or court has a legitimate interest in the decision not being abridged. Further, Article 15, paragraph 8 allows for the Board to issue an abridged decision if it agrees with the finding and reasoning of the department which issued the decision under appeal. There is no requirement for the agreement of the parties in this latter scenario. It will be interesting to see how often Boards decide to issue abridged decisions, particularly in the latter scenario.”
Notice how nothing at all is being done to restore and assure the judges of independence. Nothing. And they’re still in Haar, probably in direct violation of the EPC (it certainly violates it indirectly because the events leading up to it were an act of collective punishment and intimidation).
“Notice how nothing at all is being done to restore and assure the judges of independence. Nothing. And they’re still in Haar, probably in direct violation of the EPC (it certainly violates it indirectly because the events leading up to it were an act of collective punishment and intimidation).”Don’t look at IP Kat for any meaningful discussion of it — something it did more than 2 years ago. There’s nothing there about it except for this ad from Jonathan Pratt. He just boosts the patent extremists from CIPA after CIPA’s head was in that blog: “A shorter post this week, but still full of exciting opportunities! From a conference on the EPO’s Revised Rules of Procedure of the Boards of Appeal to an interesting job listing at the Association of Commercial Television in Europe. [...] The CIPA are running a seminar on the recently approved EPO Revised Rules of Procedure of the Boards of Appeal on 22 July 2019 in London. The programme includes discussions with an attorney perspective, and EPO representatives providing their view from both a Boards of Appeal and a first instance perspective. Details can be found here.”
CIPA. Team UPC. Battistelli's friends. Some ‘objective’ party, eh?
Days ago the EPO wrote: “Staff engagement & a digital transformation are only two of the five strategic areas we will be focusing on in the coming years.”
They always just enumerate a bunch of marketing terms (same as above). This whole thing is ridiculous hogwash even EPO staff is mocking, at times openly ridiculing. Battistelli’s strategy of propaganda “position papers” continues as though nothing changed. Because nothing changes. They just issue “reports” and so-called ‘studies’.
“Battistelli’s strategy of propaganda “position papers” continues as though nothing changed. Because nothing changes. They just issue “reports” and so-called ‘studies’.”“The European Patent Office (EPO) is known for its strict approach to added matter,” Sanam Habib and Maeve O’Flynn (Finnegan, Henderson, Farabow, Garrett & Dunner LLP) wrote some days ago in Lexology. “Accidental” anticipation? We didn’t ‘anticipate’ that…
Do these firms even care that a lot of newly-granted European Patents are invalid/ineligible? No, they still get to charge for application and litigation processes.
As usual, like we said before, the only real signal (rather than noise) in today’s IP Kat comes from the comments. “By not revoking a patent riddled with added matter, the Court is thus giving to the patentee the undue advantage over competitors the Boards of appeal want absolutely to avoid by being strict on added subject-matter,” one person wrote in response to a long and ongoing thread. The full comment:
The two examples given by “Explanation given” are not as exemplary as he would like to see them. In both cases, the Board merely repeated the provisional opinion in its decision, as the applicant did not bother to reply and did not turn up at the scheduled oral proceeding. In T 1537/07, the lack of inventive step was due to non-technical features in the claim, and on top of it the board found a lack of clarity. Thus the Board had no choice to act differently if it wanted to close the case.
The two examples are thus to be taken with a rather large pinch of salt!
I would just agree that we all disagree and leave at that. I have not convinced you, what I accept, but you have not convinced me, what I hope you can accept as well. That British courts have a different view is for me not a problem as it is their right to do so. But I do not see that what British courts are doing is necessary a hallmark for the rest of Europe.
To be honest, what has been said by Kant makes me laugh. So in other words, a patent riddled with added subject-matter can be infringed. Nice to hear for the competitors.
By not revoking a patent riddled with added matter, the Court is thus giving to the patentee the undue advantage over competitors the Boards of appeal want absolutely to avoid by being strict on added subject-matter. And I agree with this stance.
All the promoters of the idea ignore added matter when dealing with novelty and inventive step were speaking for applicants/proprietors. I have not heard anybody representing an opponent agreeing with this.
From now on, silence will be my reply, unless I am provoked to reply.
What we deal with here is a European Patent being thrown out (metaphorically) by the highest British court — a fact which as far as we’ve aware nobody is covering!
“Validation has been too shallow, however, and quality of European Patents is extremely low now…”Miquel Montañá over at Patent Kluwer Blog has just spoken of another European Patent, recalling that “[s]ome years ago, the complainant in this case filed an opposition against patent EP 1.081.284 (“EP ‘284”), alleging lack of inventive activity. The opposition was unsuccessful and the company that had filed the opposition (i.e. the complainant in the case discussed in this blog) then decided to acquire EP ‘284. Some years later, it filed a patent infringement action against a third party. One of the arguments of defence used by the defendant was that the complainant was blatantly contradicting the position taken before the European Patent Office (“EPO”) where, as mentioned, it tried to revoke EP ‘284 for lack of inventive activity when it was owned by another company. In particular, the defendant alleged that the complainant was acting against the doctrine that prevents one from acting against one’s own acts (i.e. estoppel).”
Another new post from the same blog says: “When a European patent is granted and validated, an existing national patent loses its effect only for the invention claimed in the European patent.”
Validation has been too shallow, however, and quality of European Patents is extremely low now…
“What we have here is the EPO trying to paint itself as “ethical” by piggybacking young people, who probably don’t know what malicious people simply exploit them for PR.”The EPO has commented about the collapse of patent quality internally. To the outside world, however, it lied about it in a new report. It just has nothing positive to say, so it lies instead. Just before the weekend the EPO exploited “the children” (or “youth”) to distract from its abuses by tweeting some Nellie Simon nonsense (it’s about them indoctrinating youngsters for patent maximalism) and then linking to this totally pointless puff piece (warning: epo.org link) which says: “The EPO yesterday partnered with TEDxYouth@München and engaged in dialogue with young opinion leaders. The Office was able to further the Munich TEDxYouth community’s knowledge of patents, learn what they think about innovation and the role of Intellectual Property rights, as well as gain their views on broader societal issues in relation to technological progress.”
We’ve been critical of TED for over a decade; it’s funded by and exists to serve oligarchs under the guise of “education”. What we have here is the EPO trying to paint itself as “ethical” by piggybacking young people, who probably don’t know what malicious people simply exploit them for PR. And speaking of PR, watch another Nellie Simon tweet which says: “Munich celebrates LGBTQI Pride this weekend, and EPO supports equality in all forms. “Only when everyone at the EPO feels they can bring their authentic self to work, will we succeed.” said Vice-President Nellie Simon, chair of the EPO’s Diversity & Inclusion Advisory Panel.”
“People are certainly aware of the crisis, but law firms and their media work hard to cover it up. They hope that applicants won’t notice; but they do. This is why the number of applications is decreasing, as even JUVE recently pointed out.”She’s included because of nepotism, as a former colleague of Campinos. What we have here is the EPO wrapping itself up in “human rights” while committing crimes and driving its own staff to suicide and depression. How cheap a publicity stunt. All they had to do was post a picture of a flag.
We don’t suppose European media will pay any attention to EPO scandals anymore. Maybe at the start of next week there will be some puff pieces commissioned by the EPO about how it’s all “for the children” and “for tolerance”…
We don’t suppose many people will read comments in IP Kat, especially those posted in a week-old thread. So let’s examine what people are saying about a European Patents getting canned by Britain's highest court.
“If the judgement is not appealed then an Order to revoke the patent will follow,” said this comment.
Re last comment from “Explanation please”. Am I missing something here? Justice Arnold quite clearly concludes at para. 260(ii) that the patent is invalid for added matter. If the judgement is not appealed then an Order to revoke the patent will follow. If the judgment is appealed then the appellate court will have the benefit of a full consideration of the issues before the lower court. There may be a question whether it is efficient for the lower court to consider all matters when it need not necessly do so (in my view it’s helpful to do so), but it is wrong to suggest that the court has in any way offended the EPC.
Further down someone pointed out: “Actually, in German courts (or in opposition proceedings at the DPMA) a patent will be revoked if there is added matter. A patent will not be revoked, if the claim includes a feature that was not disclosed originally but is purely limiting (plus some more conditions). In such a case novelty and obviousness will be decided on the claim WITHOUT the limiting feature, but for infringment the scope will be limited by this feature. So, in such a case a better wording would be ‘non-disclosed limitation’ instead of ‘added matter’. Example: BGH X ZR 43/09 Integrationselement (the patent was declared invalid because of added matter nonetheless)”
Part of the longstanding argument in the comments was about whether or not examiners can be blamed (they need to follow judges at the EPO, who no longer enjoy any independence and are thus beholden to patent maximalists).
Another comment said:
I did not say the court has offended the EPC. My point is that there is an inherent difficulty in deciding validity when at the same time a claim is riddled with added matter. The two are for me not going together. A claim which offends Art 123(2) does not have an effective date, and hence cannot be compared with prior art. If this is done nevertheless, it gives, as I said it before, a proprietor an undue advantage over its competitors.
The idea of no effective date for claim offending Art 123(2) is not an invention of mine. When you look at the Examiner’s report of the EQE, you will not find an assessment of novelty or inventive step for a claim or the variant of a claim offending Art 123(2).
See the second alternative(out of 3) in claim 1 of C2019, the second alternative of claim 5 of C 2018, claim 3/1 in C 2017, claim 2/1 in C 2016.
For claim 4b in C 2015, and for claim 2 in C 2014, the Examiner’s report states expressis verbis that a claim infringing Art 123(2) has no effective date.
Do not tell me that the examiners of the EQE do not know what they are telling, as they have to check whether candidates are fit to practice, and hence should nknow how to handle problems occurring during prosecution, by respecting the case law of the Boards.
Do I have to say more. I do not think so.
MaxDrei then replied
I realise that commenters are growing weary, but I would like to add just one short comment.
Many yeas ago, I was asking the TBA to reverse the OD and then remit the case to the OD to consider the issues under Art 54 and 56. The Board reversed, but declined to remit, with the following reasoning: We do not need to remit because from the OD’s written Decision we already know its opinion on these issues. Think about that! Is that not behaviour (both by the OD and the Board) to be welcomed, commended?
Now, of course, there are cases that ought to be remitted, and cases where an unnecessary remittal adds years to pendency to a case. Seldom do both parties ask the EPO to go as fast as possible. Often one party wants speed, the other delay. Which party shall the EPO reward, and which one shall be punished?
And, of course, there are some cases where it makes little sense for the OD to address ALL issues in dispute in its written Decision. But, equally, there are cases where it is perverse for an OD to stop immediately after considering the first ground of attack on validity. The skill and wisdom lies in distinguishing the one type of case from the other, and then write the Decision that the equities in the case require.
A wise patent judge once said “We can learn a lot from the Americans. Watch carefully what they do. And then make sure not to repeat their mistakes”. In the USA we see a sort of ongoing squabble between the Court of Appeal and the Supreme Court, on issues of patent validity, that has been going on for decades, and which demeans both courts. It would be regrettable if the EPO’s Examiners and Boards of Appeal end up sniping at each other. Better that they should try hard to see the reasonable point of view of the other instance, and work together to retain flexibility, raise procedural efficiency, reduce pendency, and serve the over-riding objective of doing justice between the parties in dispute.
Anybody here disagree with any of that?
“Effectively claiming that the EQEs, which are necessarily time-limited tests of knowledge, should be used as an example of “best practice” before the EPO and the courts is faintly ludicrous,” said this next person:
Effectively claiming that the EQEs, which are necessarily time-limited tests of knowledge, should be used as an example of “best practice” before the EPO and the courts is faintly ludicrous. They are there to provide a way of measuring if candidates are fit to practice – no more, no less.
As so many people have said above, the important thing here is that the courts can function efficiently to deliver justice to the parties. I am just repeating so many above in saying that to ignore the issues of novelty and inventive step on the premise that there is added subject-matter would just prolong the process if a higher court were to disagree about the added subject-matter.
To take this back to your example of Paper C, this is an opposition paper. When taking the paper you are required to formulate all possible attacks on a patent. If there is an added matter attack available, you are expected to use it. You are also expected to submit a lack of novelty or inventive step attack if this is available against the same claim. If you simply stated “there is added matter therefore I cannot attack novelty because there is no effective date from which to consider novelty”, you would not get any marks.
Of course, where the added matter is so blatant as to be unarguable, you may not need to make further attacks, but real life is rarely so straightforward.
So how does one check for novelty with a claim that may contain added matter? You assume it does not include added matter and examine it with the effective it would have were this to be the case – i.e. either the filing date or, if the matter relied upon to provide support is in the priority document, the priority date. I cannot see how such an approach can be considered to be controversial.
There is no “inherent difficulty in deciding validity” if you simply determine what effective date the claim would have if your judgement on added matter is incorrect.
Considering your opinions infallible in matters of law that rely on personal interpretation is just asking for trouble.
The above comments are a lot more meaningful than anything we find in blog posts, PR-like media coverage, and endless lies about/from the EPO. People are certainly aware of the crisis, but law firms and their media work hard to cover it up. They hope that applicants won’t notice; but they do. This is why the number of applications is decreasing, as even JUVE recently pointed out. Future EPO articles at Techrights will likely focus on media’s failure (reluctance/inability/refusal) to cover the scandals. What’s the point of the media if not to inform the public? █
Permalink
Send this to a friend
Summary: Ubuntu is becoming more ‘Ubinary’; binaries without their source code available are packed up and cooked up for (or baked into) the ISO; this may be good for widespread adoption, but it’s not an advancement of freedom, a capitulation rather
]
Content is available under CC-BY-SA