●● IRC: #boycottnovell @ FreeNode: Wednesday, May 05, 2021 ●●

● May 05
[06:34]	schestowitz__	x https://www.computerworld.com/article/3617079/the-collective-problems-with-videoconferencing.html
[06:34]		-TechrightsBN/#boycottnovell-Could not resolve host: www.computerworld.com; Unknown error ( status 0 @ https://www.computerworld.com/article/3617079/the-collective-problems-with-videoconferencing.html )
[06:34]	schestowitz__	# still kicking
[06:34]	schestowitz__	=
[06:34]	schestowitz__	x https://www.bbc.co.uk/news/world-us-canada-56984733
[06:34]		-TechrightsBN/#boycottnovell-Could not resolve host: www.bbc.co.uk; Unknown error ( status 0 @ https://www.bbc.co.uk/news/world-us-canada-56984733 )
[06:34]	schestowitz__	=
[06:34]	schestowitz__	x https://www.rollingstone.com/culture/culture-news/bill-melinda-gates-divorce-qanon-1164814/
[06:34]	schestowitz__	=
[06:34]		-TechrightsBN/#boycottnovell-www.rollingstone.com | Bill, Melinda Gates: QAnon Followers Are Freaking Out Over Divorce - Rolling Stone
[06:35]	schestowitz__	x https://www.economist.com/international/2021/05/03/new-technology-has-enabled-cybercrime-on-an-industrial-scale
[06:35]		-TechrightsBN/#boycottnovell-Could not resolve host: www.economist.com; Unknown error ( status 0 @ https://www.economist.com/international/2021/05/03/new-technology-has-enabled-cybercrime-on-an-industrial-scale )
● May 05
[16:13]	Techrights-sec	how is kaniini doing?
[16:14]	schestowitz__	very busy working on alpine. I follow the blog now over RSS. No Muppet Labs afaict.
[16:31]	Techrights-sec	Ok.  Alpine is a very good project, unlike "Muppet Labs" ... 
[16:31]	schestowitz__	Muppets want a piece of it, e.g. in WS'L'
[16:40]	Techrights-sec	Hmm.  An unworthy goal, that.
[16:40]	Techrights-sec	I thought WS'L' was long dead already.
[16:40]	schestowitz__	Like UPC. It's dead, but they lack the courage to admit it. "Hope Died Last"(R)
[16:40]	schestowitz__	Like UPC. It's dead, but they lack the courage to admit it. "Hope Dies Last"(R)
● May 05
[17:00]	Techrights-sec	I suppose they have gotten cultists within Canonical and IBM to hold on longest.
● May 05
[23:05]	Techrights-sec	https://nitter.cc/PrismPrime/status/1390052877905825800#m
[23:05]		-TechrightsBN/#boycottnovell-Could not resolve host: nitter.cc; Unknown error ( status 0 @ https://nitter.cc/PrismPrime/status/1390052877905825800#m )
[23:38]	schestowitz__	http://patentblog.kluweriplaw.com/2021/04/30/epo-oral-proceedings-by-videoconference-47-amicus-curiae-briefs-in-case-g-1-21/
[23:38]	schestowitz__	"
[23:38]	schestowitz__	The Convention Watchdog
[23:38]	schestowitz__	MAY 1, 2021 AT 3:50 PM
[23:38]		-TechrightsBN/#boycottnovell-patentblog.kluweriplaw.com | EPO oral proceedings by videoconference: 47 amicus curiae briefs in case G 1/21 - Kluwer Patent Blog
[23:38]	schestowitz__	The Enlarged Board of Appeal should be careful in dealing with the opponentrequest to exclude the chairman because of suspicion of partiality. The German Constitutional Court decided a very similar case concerning its member Peter Mller, the former Head of Government of Saarland. Suspicion of partiality was accepted because the member had introduced a politically contested bill and defended it in the public. The Enlarged 
[23:38]	schestowitz__	Board of Appeal could use the reasons given by the BVerfG in BvR 656/16 (BVerfGE 148, 1) as a blueprint for its own case. Strange coincidence: A member of the 2nd Senate of the BVerfG in the cited case was Prof. Huber who also is rapporteur in the pending cases concerning the question whether the Board of Appeals are proper Courts.
[23:38]	schestowitz__	D.X.Thomas
[23:38]	schestowitz__	MAY 2, 2021 AT 11:20 AM
[23:38]	schestowitz__	In LinkedIn you can find a summary of all amicus curiae whether in favour of holding OP by ViCo without the consent of parties or opposing it. It is a personal summary and it does not pretend to be exhaustive and accurate in all details. I just hope it gives a fair account.
[23:38]	schestowitz__	One fact seem not to be disputed. Whether a negative or a positive answer should be given, OP by ViCo should be a possibility offered by the EPO and not limited to ex-parte procedures as in the past. For those against the mandatory character of OP by ViCo the principle of party disposition should be respected.
[23:38]	schestowitz__	A very important is contribution is that of epi which, after all, is a body enshrined in the EPC, cf. Art 134a(1). Epi did not only take a strong negative position, but also queried the possible partiality of the chair of the EBA in G 1/21, whereas on the positive side, the fact that the chair of the BA had expressed an opinion was not seen as being prejudiced.
[23:38]	schestowitz__	All the arguments relating to the unsuitability of OP by ViCo for psychological reasons or the like are very interesting and cannot be wiped aside. However they do not appear to weigh much in the framework of the legal problem raised by forcing parties to OP by ViCo outside the pandemic.
[23:38]	schestowitz__	The discussion should be a legal one and boils down to the question whether the AC is empowered to actually amend the EPC by secondary legislation like Art 15aRPBA20. We do not have, whether in the EPC or its Implementing Regulations, a rule like R 28(2) which was adopted by the AC and then subject to decision G 3/19.
[23:39]	schestowitz__	Art 33(1,a) appears only to empower the AC to amend Parts II to VIII and Part X of the EPC, to bring them into line with an international treaty relating to patents or European Community legislation relating to patents. OP by ViCo, with or without the consent of parties do not seem to stem from international treaties relating to patents or European Community legislation relating to patents.
[23:39]	schestowitz__	OP by ViCo have shown to be a good tool during the pandemic, but it is their mandatory character outside the pandemic and the provisions contained in Art 15a(3)RPBA which allows the deciding bodies of the EPO not to be present at the various locations of the EPO, which are a problem for a lot of users.
[23:39]	schestowitz__	The situation is thus different from that in G 3/19, whereas in G 2/19 the EBA held that: Users of the European Patent Organisations services can legitimately expect that the European Patent Offices departments will not perform acts at whatever other place they choose.
[23:39]	schestowitz__	In my humble opinion, Art 116 is indeed silent on a lot of things, but claiming that it allows OP by ViCo, even without consent of the parties, is as convincing as claiming the contrary.
[23:39]	schestowitz__	Here are the links:
[23:39]	schestowitz__	https://www.linkedin.com/pulse/summary-submissions-proposing-positive-reply-referred-thomas/?trackingId=zrJu3gotSguP8GyOE6jKaw%3D%3D
[23:39]		-TechrightsBN/#boycottnovell-www.linkedin.com | Summary of submissions proposing a positive reply to the referred question
[23:39]	schestowitz__	https://www.linkedin.com/pulse/summary-submissions-proposing-negative-reply-referred-thomas/?trackingId=brs3xDiBRxu21ysdf0xJ5g%3D%3D
[23:39]	schestowitz__	G 1/21 raises a much more important question
[23:39]	schestowitz__	MAY 3, 2021 AT 9:59 AM
[23:39]	schestowitz__	A word of clarification: it goes without saying that the position of president of the EPO is clearly in favour of a positive answer.
[23:39]		-TechrightsBN/#boycottnovell-Could not resolve host: www.linkedin.com; Unknown error ( status 0 @ https://www.linkedin.com/pulse/summary-submissions-proposing-negative-reply-referred-thomas/?trackingId=brs3xDiBRxu21ysdf0xJ5g%3D%3D )
[23:39]	schestowitz__	If the answer is positive, the President will have carte blanche to relocate the EPO since the New Normal he wants to introduce provides for the examination and opposition divisions to be dispersed throughout the member states and even outside.
[23:39]	schestowitz__	One only has to look at Art 15a(3)RPCR20 which allows the relocation of the BAs whereas in G 2/19 the EBA had specified that: Users of the services of the European Patent Organisation are certainly entitled to expect that the EPO authorities do not perform their legal acts in any third place. If this is possible for the RCs, it is also possible for the first instance and this is also one of the reasons put forward by the 
[23:39]	schestowitz__	President for his position.
[23:39]	schestowitz__	The president was careful enough not to quote this passage of G 2/19 but another one that adds water to his argument. See Points 14, 18, 25, 33, 81 of his input of 27.04.2021.
[23:39]	schestowitz__	The mandatory nature of OPs through ViCo is already a problem, but this relocation is even more problematic. It is highly doubtful that the President, the BOAC and the AC have sufficient legitimacy to change so profoundly the structure of the EPO and the EPC.
[23:39]	schestowitz__	After all the amendment of Art 16 and 17 EPC was the result of a diplomatic conference in 2000. Art 6 EPC expressly mentions Munich and The Hague, Art 7 EPC allows Berlin and Vienna.
[23:39]	schestowitz__	The President regularly quotes Art 10(2,a)EPC which authorises him to take all appropriate measures .. with a view to ensuring the functioning of the European Patent Office, but forgets Art 10(2,b)EPC which allows him to determine the acts to be performed respectively at the European Patent Office in Munich or at its department in The Hague.
[23:39]	schestowitz__	There are enough direct and unambiguous references in the EPC which make abundantly clear that the EPC requires the location of the EPOs decision-making bodies in Munich/Haar, The Hague and Berlin.
[23:39]	schestowitz__	It is astonishing that the President of the BAs, who should be the first guardian of the EPC, would allow himself to propose the dismantling of the EPO and that the AC did not oppose it.
[23:39]	schestowitz__	G 1/21 goes far beyond the issue of OP under ViCo. It puts at stake the existence of the EPO and the EPC as conceived in 1973 and 2000.
[23:39]	schestowitz__	None of the positive answers addressed this issue. This is a great pity.
[23:39]	schestowitz__	Andr Frans
[23:39]	schestowitz__	MAY 3, 2021 AT 3:09 PM
[23:39]	schestowitz__	Where the same judge proposed changes of rules for himself?
[23:39]	schestowitz__	Thats a good seperation of powers!
[23:39]	schestowitz__	Concerned observer
[23:39]	schestowitz__	MAY 4, 2021 AT 1:29 PM
[23:39]	schestowitz__	The idea that the driving force behind Art 15a RPBA gets to mark his own homework on a matter of constitutional importance could not be any more clearly contrary to the separation of powers principle.
[23:39]	schestowitz__	It is impossible to imagine that, in any Contracting Member State of the EPC, a similarly inappropriate chairman for a panel of judges would ever be contemplated for any court, let alone a supreme court. The closest equivalent that I can think of would be the hypothetical scenario in which, instead of Lady Hale, Boris Johnson got to act as head of the UK Supreme Court in the case that considered the question of whether his 
[23:39]	schestowitz__	advice to the monarch (to prorogue Parliament) was unlawful. It is not difficult to imagine that, in that scenario, the Supreme Courts decision might have been somewhat different to that announced by Lady Hale especially if Boris had managed to ensure that members of his administration (including himself) formed a majority of the panel of judges.
[23:39]	schestowitz__	I would be very interested to learn what the external members of the EBA make of all this.
[23:39]	schestowitz__	Concerned observer
[23:39]	schestowitz__	MAY 3, 2021 AT 3:28 PM
[23:39]	schestowitz__	Interesting observation: amongst the amicus briefs that support a positive answer to the question referred, there is not to be found a single objection to the current composition of the EBA. (CIPA merely mentions concerns expressed by others but does not elucidate any grounds for concern. On the other hand, Fresenius Kabi go as far as arguing that the composition of the EBA is entirely unproblematic.)
[23:39]	schestowitz__	This can only mean one of three things.
[23:39]	schestowitz__	Firstly, it could mean that those arguing that the answer should be yes simply have not spotted the potential problems (at least of perception) with having the driving force behind Art 15a RPBA sitting as the chair of the EBA.
[23:39]	schestowitz__	Alternatively, it could mean that yes supporters simply do not believe that the potential problems are big enough to be worth mentioning.
[23:39]	schestowitz__	Finally, it could mean that yes supporters are keeping quiet about the obvious problems with the composition of the EBA because they believe that composition is highly likely to answer yes to the question referred.
[23:39]	schestowitz__	In connection with the rule of law at the EPO, none of these three possible alternatives is particularly reassuring. Are we really to believe that, for seemingly so many in the profession, getting an answer that is commercially convenient is more important than standing up for fundamental principles that underpin the rule of law?
[23:39]	schestowitz__	Peter Parker
[23:40]	schestowitz__	MAY 3, 2021 AT 4:18 PM
[23:40]	schestowitz__	At least it is clear now for the EPO that people and large corporations are watching. I dont think that the outcome will change though. As a head of an IP department I am not against ViCos but think that the EPC needs to be properly changed before they can become compulsory. In my view, the EPOs current position is pragmatic and cost effective but against the law.
[23:40]	schestowitz__	G 1/21 raises a much more important question
[23:40]	schestowitz__	MAY 3, 2021 AT 4:45 PM
[23:40]	schestowitz__	If for whatever reason the rule of law is abolished, and this especially by those whose duty should be the guardian of the law, then we end up in the jungle and the right of the stronger prevails. Do we really want this? I do not.
[23:40]	schestowitz__	Not all positive submissions dodge the problem of the composition of the EBA. In one them it was stated that the fact that the president of the EBA has expressed an opinion does not mean that he is prejudiced. When you see all the behaviour of the president of the BA in this matter, it is difficult to come to such an innocent position.
[23:40]	schestowitz__	Nothing against the EPO being cost effective and pragmatic. I would however draw the attention that even electronic communication and the Internet have a far more higher carbon footprint/environmental effect as one would think.
[23:40]	schestowitz__	Not only electronic communication as such, but all the electronic devices themselves we use have a non-negligible carbon footprint or a disastrous environmental effect.
[23:40]	schestowitz__	It is clear that running an electric car does not produce CO2 as such, but the electricity it needs for charging its batteries and the its manufacture have a CO2 footprint and environmental effect about three times that of the manufacture of a classical car. This does not mean that I am against stopping the exploitation of fossil sources of energy, but the equation has to be honest and show in all the parameters involved!
[23:40]	schestowitz__	Yes to OP by ViCo, but not without the consent of the parties!
[23:40]	schestowitz__	And even for OP by ViCo as such, the EPO needs to be changed.
[23:40]	schestowitz__	What is going on here is the attempt to legalise afterwards a practice which has been established without any legitimacy.
[23:40]	schestowitz__	Concerned observer
[23:40]	schestowitz__	MAY 4, 2021 AT 12:30 PM
[23:40]	schestowitz__	Looking at the EPO Presidents submission in connection with G 1/21, it seems to me that it has been drafted upon the basis of presenting pretty much ANY supporting argument, no matter how potentially risible or misleading.
[23:40]	schestowitz__	There are so many to choose from, but points that stand out to me include the following.
[23:40]	schestowitz__	Point 49: the suggestion that ANY Implementing Regulation passed by the AC could amount to a subsequent agreement or practice under the Vienna Convention which suggestion conveniently ignores the fact that the cited case law (G 2/12) was dealing with an Implementing Regulation that was passed not by the AC but instead by the EPC legislator (at the Diplomatic Conference leading to EPC2000). The same error is repeated in points 
[23:40]	schestowitz__	49b and c, where the AC is conflated with (all of) the Contracting States.
[23:40]	schestowitz__	Point 49a: the suggestion that by deciding NOT to amend Art 116 at the Diplomatic Conference leading to EPC2000, the EPC legislator intended that the SAME words would now have a DIFFERENT meaning which suggestion conveniently ignores logic, standard interpretative methodology and the fact that there is precisely ZERO evidence that the legislator even considered the impact of developments in VICO technology (which already 
[23:40]	schestowitz__	existed at the time EPC1973 was signed) might have upon the interpretation of Art 116.
[23:40]	schestowitz__	Point 62: the suggestion that the waiver declaration required between 1998 and 2006 for the conduct of VICO oral proceedings in examination merely reflects the second sentence of Art 116(1) EPC (ie preventing the duplication of proceedings) which suggestion conveniently ignores the fact that such waiver declarations were NOT required for the conduct of in-person oral proceedings, meaning that, at the time EPC2000 was 
[23:40]	schestowitz__	signed, VICO oral proceedings were undeniably viewed by the EPO as being both different AND inferior to in-person proceedings.
[23:40]	schestowitz__	Also worth mentioning is the EPO Presidents approach to dealing with the well-established case law of the Boards of Appeal holding that Art 116 affords an absolute right to in-person proceedings (but NOT to VICO proceedings), and that there is no legal basis for VICO proceedings before the Boards of Appeal. That approach could be best be described as ignore, avoid and gloss over.
[23:40]	schestowitz__	Irrespective of the above points, there really are no arguments in the EPO Presidents submission that, from a strictly legal perspective, could be viewed as persuasive. However, I have my doubts whether this will prevent the EBAs opinion from reiterating the same arguments in order to justify a positive answer to the question referred. We shall have to wait and see but not before seeing how the EBA deals with the 
[23:40]	schestowitz__	objection raised under Art 24(3) by a party to the proceedings (namely, the opponent).
[23:40]	schestowitz__	With only a few weeks to go before oral proceedings are due to take place, the EBA will certainly need to act quickly upon the opponents Art 24(3) objection, especially given that it could lead to a substantial change in the composition of the EBA. Interesting to note that the EBA seems to have already taken longer to act upon the opponents objection that it did to pick up the referral (and issue a Summons for oral 
[23:40]	schestowitz__	proceedings) back in March. Whether this is significant remains to be seen.
[23:40]	schestowitz__	Attentive Observer
[23:40]	schestowitz__	MAY 4, 2021 AT 7:33 PM
[23:40]	schestowitz__	The presidents input to G 1/21 has not been drafted by himself.
[23:40]	schestowitz__	He has to rely on lawyers in Directorate Patent Law.
[23:40]	schestowitz__	I would take the defence of active staff having had to draft the presidents comments.
[23:40]	schestowitz__	I cannot imagine any staff member of the EPO opposing the wish of the president, even if they realise that what they write is plain legal nonsense and even contradictory.
[23:40]	schestowitz__	It is worth noting that in G 1/21 the president will not merely be represented as usual by the Director Patent Law and a lawyer of this department, but the PD Legal Affairs will be present.
[23:40]	schestowitz__	It is manifest that the president does not want to see its New Normal jeopardised by the EBA.
[23:40]	schestowitz__	The choice of the majority of the members of the EBA is such that president should be preserved from any reply which would displease him.
[23:40]	schestowitz__	MaxDrei
[23:40]	schestowitz__	MAY 5, 2021 AT 6:01 PM
[23:40]	schestowitz__	Attentive, you refer to the majority of the EBA membership but Im wondering about the External Members. What options are open to them? Resign, perhaps? Write a dissenting minority opinion perhaps? Or are they bound by collective responsibility (like in a jury room or a Prime Ministers Cabinet meeting), to say nothing outside the room in which the EBA deliberates?
[23:40]	schestowitz__	Rule of law
[23:41]	schestowitz__	MAY 5, 2021 AT 11:16 AM
[23:41]	schestowitz__	https://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=4392&p_languhttps://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=4392&p_language_code=ENage_code=EN
[23:41]		-TechrightsBN/#boycottnovell- ( status 400 @ https://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=4392&p_languhttps://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=4392&p_language_code=ENage_code=EN )
[23:41]	schestowitz__	"