IRC: #boycottnovell @ FreeNode: Sunday, April 18, 2021

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x https://www.healthcareitnews.com/news/emea/axa-and-microsoft-join-forces-build-digital-healthcare-platform

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-TechrightsBN/#boycottnovell-www.healthcareitnews.com | AXA and Microsoft join forces to build digital healthcare platform | Healthcare IT News

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x https://www.telegraph.co.uk/business/2021/04/17/bird-no-billionaire-saving-planet/

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-TechrightsBN/#boycottnovell-www.telegraph.co.uk | Is it a bird? No, it’s a billionaire saving the planet

http://ipkitten.blogspot.com/2021/03/chairman-and-enlarged-board-criticised.html?showComment=1618302978422#c4913745894973843777

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Apr 18 10:36

-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | Chairman and Enlarged Board criticised for lack of impartiality in ViCo oral proceedings referral (G1/21) - The IPKat

Apr 18 10:36

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"There are further submissions on the EPO Register. One makes a bizarre and (I think) plainly incorrect assertion about the impact of ViCo on the rights of professional representatives vis-a-vis the location of their places of business. The other is a substantial set of observations from a Swiss patent attorney association which is worth detailed consideration."

Apr 18 10:36

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@Proof of the pudding I think you need to correct the first paragraph above. The objected-to members will NOT participate in the decision on exclusion, according to EPC Art 24 (4):

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(4) The Boards of Appeal and the Enlarged Board of Appeal shall decide as to the action to be taken in the cases specified in paragraphs 2 and 3, without the participation of the member concerned. For the purposes of taking this decision the member objected to shall be replaced by his alternate.

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http://ipkitten.blogspot.com/2021/04/boeings-comma-drama-commas-and-taking.html?showComment=1618304456104#c7001605656691973547

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-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | Boeing's comma drama: Commas and taking the description into account when construing a claim (T 1127/16) - The IPKat

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I wonder what would have happened in Actavis v Lilly if the description had included a definition of "sodium". Personally, I would say the term was crystal clear and provides legal certainty (a point Sumption didn't pay much attention to), but I am a chemist.

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What if Lilly defined sodium in the description as "any alkali metal"? What definition is used for assessing validity/infringement?

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Art. 69 EPC does state the description "shall" be used to interpret the claims, so Birss can't be at odds.

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https://ipkitten.blogspot.com/2021/04/epo-plans-radical-shake-up-of-eqes-2024.html?showComment=1618305263843

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-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | EPO plans radical shake-up of EQEs 2024 onwards - The IPKat

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14 Comments:

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AnonymousTuesday, 13 April 2021 at 10:12:00 BST

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Completely agree - time for regular assessments throughout the year that mirrors the real life work. Other professional qualifications have been doing this for decades e.g. accountancy. The PEB exams also need to modernise and step up.

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AnonymousTuesday, 13 April 2021 at 10:14:00 BST

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The Mercer Review has been 3/4 years now. How long do they still need to publish it. We had brexit, coronavirus, online examination format during that time. It has taken so long that I now fear it will be out of date again.

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AnonymousTuesday, 13 April 2021 at 11:20:00 BST

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The Mercer review was announced in December 2019 with a submissions deadline in February 2020. Hardly "3-4 years" as you indicate - more like 16 months. But I agree that they should hurry up and publish their recommendations. Minutes of CIPA Council meetings published in the CIPA journal indicated that publication was envisaged for "the early part" of 2021...

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AnonymousTuesday, 13 April 2021 at 10:14:00 BST

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Yes, I would hope that the PEB take note of this, although I imagine some rubbish about the "gold-standard" will be front and centre when Mercer gets released.

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My involvement with the PEB (as a candidate) is coming to the end as I'm moving to Germany (for 65% more money). All the best to the gold standard patent attorneys.

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AnonymousTuesday, 13 April 2021 at 11:08:00 BST

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Just curious, how easy did you find moving to a German firm? Do you speak German? #askingforafriend

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AnonymousTuesday, 13 April 2021 at 11:27:00 BST

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If the "gold standard" is maintained, I will need to be hearing why the exams are the "gold standard".

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Previous threads on this topic bring out ardent defenders in force where they just tell us that the exams are good and test fitness to practise. They never tell us why. I need to be enlightened by the Mercer review. I also need to understand why any concerns about the current exams are simply not valid.

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We need to get away from this justification: if you are fit to practise, you will pass; if you pass, you are fit to practise.

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"the above is from someone not fit to practise" is another "defence". I hold the coveted chartered status, btw, which in any case is irrelevant to a valid criticism.

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AnonymousTuesday, 13 April 2021 at 16:46:00 BST

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I too don't quite understand this "gold plated" standard as UK patent attorney wages are the lowest compared to other nations.

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AnonymousTuesday, 13 April 2021 at 10:36:00 BST

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It will be interesting to see how clashes with national finals across Europe is avoided if such a modular system is introduced. This would be complicated further if, for example, the PEB also took a modular approach.

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AnonymousTuesday, 13 April 2021 at 14:21:00 BST

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I would like to see an update for the Mercer review- surely it must be issued before the 2021 exams? The whole thing was started after the 2018 outcry- there are now candidates who have sat 3 years worth of exams waiting for this review......

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AnonymousTuesday, 13 April 2021 at 16:48:00 BST

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Even if the Mercer review was published this year (big if) nothing will be implemented for another few years - I'm sure there will be an excuse as to why that is.

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AnonymousWednesday, 14 April 2021 at 10:18:00 BST

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How would this work for those who are due to start taking EQE finals in 2023? It would be interesting to see if this only gives us one attempt or if there will be some overlap in the practice.

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EQE 2021 candidateWednesday, 14 April 2021 at 10:43:00 BST

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As a 2021 EQE candidate, I concur with the qualified attorneys that "some Exam Papers are too remote from reality". After preparing for the exams, I do not feel any more fit for practice. Instead, I became fit for jumping through the hoops that are the EQE main exams, and am now very skilled in puzzling together hints in the exams to find the desired solution.

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AnonymousThursday, 15 April 2021 at 15:42:00 BST

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Give the old boy a chance, he's still working through the prior art - the Sherr Report alone is a hefty tome. And don't forget he also has to concoct reasoning to support the required conclusion that the current system is fine as it is.

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RonThursday, 15 April 2021 at 22:03:00 BST

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While long retired, my understanding is that certain aspects of the existing system certainly do not test fitness to practice. This was brought home to me when I did my first amendment paper for a tutorial. I took the bit in the "instructions to candidates" about offering an amendment "if necessary" literally, decided that there were good grounds for arguing for the unamended claims as they stood, and so offered no amendment. The

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tutor completely agreed with my analysis but pointed out that, despite the statement in the instructions, 50% of the marks were always awarded for the amendment: no amendment, no marks. The objective was to provide a response that would allow the examiner to send the case to grant, even uf this resulted in the applicant getting a narrower scope of protection than he was entitled to. So what standard of will the EPO be using to

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determine fitness to practice? Will they be looking for someone who will roll over and not argue with them so as to improve their case disposal rate, or one who will actually fight for his client's rights and thereby involve the examiner in additional official actions which reduce his productivity?

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I spent sone years as an examiner in the UK Patent Office before changing sides, and learnt that there was no such thing as a standard examination procedure: different types of technical subject matter required different drafting approaches: forms of claim acceptable in electronics would be objected to in mechanics. On my first JDD revision course for the old CIPA "inters" exams I observed to one of lecturers that I was there to

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learn how to satisfy the CIPA examiners rather than the Patent Office examiners, as from the published examiners's comments on past exams it was apparent that some of the CIPA examiners' views on appropriate practice diverged significantly from my own experience as a PO Examiner.

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http://ipkitten.blogspot.com/2021/03/chairman-and-enlarged-board-criticised.html?showComment=1618307603869#c2309466693273225626

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-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | Chairman and Enlarged Board criticised for lack of impartiality in ViCo oral proceedings referral (G1/21) - The IPKat

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No correction needed. I agree that members objected to cannot participate in a decision on their potential exclusion. However, that was not the decision to which I was referring.

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The decision in question is whether to apply any provisions of Art 24 in the first place.

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It is already abundantly clear that the Chairman has decided not to apply Art 24(1) to himself or the other members of the EBA who participated in drafting and/or promulgating Art 15a RPBA. This is despite the clear personal interest, namely an interest in avoiding professional embarrassment, that all three (or four) members have in connection with the question referred.

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If that were not enough, then the epi's letter, which was received by the EPO before the Chairman took decisions in connection with G 1/21, really ought to have triggered Art 24(2) EPC ... and hence a decision on exclusion PRIOR to the participation in the proceedings of any of the members objected to.

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So, despite the existence of clear grounds under Art 24(1) and/or Art 24(2) for triggering a decision on exclusion, it is apparent that the Chairman has not (yet) decided to apply either of those provisions. Which was precisely my point. That is, it is one thing to have laws designed to deal with actual or perceived conflicts of interest ... but it is another thing entirely to ENFORCE those laws. The trouble here is that it seems

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that the Chairman gets to decide upon whether the laws in question are enforced.

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http://ipkitten.blogspot.com/2021/04/boeings-comma-drama-commas-and-taking.html?showComment=1618312036867#c6935039099218060520

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-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | Boeing's comma drama: Commas and taking the description into account when construing a claim (T 1127/16) - The IPKat

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"For another example of the power of a comma or lack of comma in legal outcome, see East West Street."

http://ipkitten.blogspot.com/2021/04/boeings-comma-drama-commas-and-taking.html?showComment=1618312249829#c4773959668068678174

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-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | Boeing's comma drama: Commas and taking the description into account when construing a claim (T 1127/16) - The IPKat

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"Sorry, attentive observer, the decision while admittingly in line with the Case Law ia a disgrace for the EPO. A verbatim interpretation of claims as regularly performed by the Board of Appeal is simply add odds with legal interpretation. Mr. Justice Birss was very right not following the Boards of Appeal."

http://ipkitten.blogspot.com/2021/03/chairman-and-enlarged-board-criticised.html?showComment=1618316479957#c5649289382210849718

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-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | Chairman and Enlarged Board criticised for lack of impartiality in ViCo oral proceedings referral (G1/21) - The IPKat

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I do think that the submission is probably not very elaborated but strengthens the argument that oral proceedings should only take place in Munich, The Hague and Berlin.

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In my opinion, Art. 134(6) EPC reads as follows: "Every professional representative may establish a place of business in Germany or the Netherlands." Thus, a Turkish professional representative may establish a place of business in Germany. However, German professional representative may not necessarily estalbish a place of business in Turkey.

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This intentional discrimination seems only justified in view of oral proceedings being allowed to take place only in Germany or the Netherlands.

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"Not sure where Attentive Observer gets the idea Birss was wrong, given that he was looking at the scope of infringement, equivalents in particular, and the relevant provisions of the EPC for that are Art 69 EPC and the Protocol. Art 69(1) specifically says 'Nevertheless, the description and drawings shall be used to interpret the claims', not may, but shall. Furthermore, the Protocol, itself an integral part of the EPC says that

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Article 69 should not be interpreted as meaning that the extent of the protection conferred by a European patent is to be understood as that defined by the strict, literal meaning of the wording used in the claims, the description and drawings being employed only for the purpose of resolving an ambiguity found in the claims.' On the face of it, Mr Justice Birss was following the statute provided by the legislator. "

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Art 123(2) and Art 69 are two different countries. Whereas Mr Justice Birss is under the thumb of the "over-riding objective" of the CPR to dispose of cases justly, the Boards of Appeal are under no such burden. Instead, they are free to discipline Applicants, using Art 123(2), to draft perfectly and then prosecute without departure from the verbatim text as filed. The consequences of an injudicious prosecution amendment are

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hugely more severe than those of writing a less than perfect set of claims for the original filing.

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One might think that the EPO is getting the balance wrong but, hey, if it improves drafting standards world-wide, that is not a bad thing. And the EPO is not alone. As I understand it, the Chinese have the same unforgiving view of what constitutes new matter. So, the Americans will come round in the end even if, as of now, they think the EPO line on added matter is absurd.

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Lord Mansfield it was, I think, perhaps 250 years ago, who counselled that it is better to have a legal Rule that is clear than one that is ultimately fairer but suffers from the disadvantage that it is not so clear. Legal certainty was, for him, the over-riding objective. For the EPO as well, it seems.

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EPI has apparently grown a spine. A shame that it never did so during the abuses of the Battistelli era.

https://patentepi.org/assets/uploads/documents/epi-reports/210412%20G121%20Preliminary%20amicus%20curiae%20brief%20of%20epi%20(with%20attachments).pdf

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http://ipkitten.blogspot.com/2021/04/boeings-comma-drama-commas-and-taking.html?showComment=1618348186548#c1567656093805442410

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-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | Boeing's comma drama: Commas and taking the description into account when construing a claim (T 1127/16) - The IPKat

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I'm coming back to this thread with more thoughts because the Decision troubles me. I want the case law of the Boards of Appeal to enjoy world-wide respect and I'm not sure that this Decision will receive respect. It seems to me careless, even perverse, to attempt to construe a claim without first reading through the specification in order to set the definition of the invention (in the claim) in the context of the description of

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the self-same invention in the specification of the patent. After all, the EPO itself insists that the description shall set the claimed invention in the context of the most relevant prior art. Why that insistence, that obsession, to include in the description an accurate summary of the closest art, if not to help the one who has to construe the claims? Presumably the Boards accept the overall truth that a patent specification is

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not a collection of different documents but, rather a single coherent document to be considered only as a single whole.

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Accordingly, it would also seem to me right that the "mind willing to understand", contrary to a mind desirous of misunderstanding the claim, is a mind that, in its endeavour to arrive at an accurate understanding, would want first to read the specification before addressing the claim and before trying to divine what that claim means. You see, once you take into account what you have understood from the description, you will be

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much more inclined to find a meaning that reconciles what the claim defines as the invention with what the description describes as the invention, and less inclined wilfully to fix upon a meaning of the claim that results in the invalidation of the claim under Art 123(2) EPC.

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As for the notorious "mind willing to understand" notion, I never guessed that it would be used to abort any reflective thinking about how to achieve harmony between the claim and the description. Taking up the B publication, and reading nothing but claim 1, finding it makes technical sense, willing oneself on to derive a credible understanding of it, and then abruptly ending there, without even a glance at the description,

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strikes me as NOT the proper way to arrive at a conclusion what the claim means, not what readers of patents do in the real world, and not what a mind desirous of understanding would do.

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I( look forward to other Decisions, from other Boards, that temper and trim this decision, a touch on the tiller to put the jurisprudence of the BA's back on a track that commands respect from patent practitioners all around the world.

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Sorry, Attentive, but to me the Board here was like the proverbial man with a hammer, for whom everything looks like a nail, the hammer here being of course Art 123(2) EPC.

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http://ipkitten.blogspot.com/2021/03/chairman-and-enlarged-board-criticised.html?showComment=1618383994173#c3579914969096072492

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-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | Chairman and Enlarged Board criticised for lack of impartiality in ViCo oral proceedings referral (G1/21) - The IPKat

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In the comments to the previous IPKAT-Article:

https://ipkitten.blogspot.com/2021/03/board-of-appeal-in-t180715-continues.html

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-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | BREAKING: Board of Appeal in T1807/15 continues with ViCo oral proceedings referral - The IPKat

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an anonymous stated

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"I.B. drafted the text accompanying the proposal for new art. 15a RPBA, but this something only the aficionados within the Boards know: there's nothing in the public records and it will be difficult to request that he be recused. But at least he is not the rapporteur."

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While there is still no written proof of his participation in drafting the text accompanying the propoal for new Art. 15a RPBoA, he should at least recuse in view his participation as a chairman in the following the decision:

https://www.epo.org/law-practice/case-law-appeals/pdf/t160328du1.pdf

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http://ipkitten.blogspot.com/2021/04/boeings-comma-drama-commas-and-taking.html?showComment=1618397423652#c1639811010527392892

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-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | Boeing's comma drama: Commas and taking the description into account when construing a claim (T 1127/16) - The IPKat

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I agree. Have you shared this decision on Patently-O yet? Love to the see the reactions.

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If we never have recourse to the description, that would make need for full translations during EP validation obsolete - is that the idea?

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He who has not read a claim, not understood what it was waffling about, then read the description to try and understand, please raise your hand.

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http://ipkitten.blogspot.com/2021/04/boeings-comma-drama-commas-and-taking.html?showComment=1618404267737#c8669694200566028951

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-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | Boeing's comma drama: Commas and taking the description into account when construing a claim (T 1127/16) - The IPKat

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I'm not convinced the overriding objective of the CPR has anything to do with it. It requires judges to manage cases procedurally to do justice (and at proportionate cost). It does not require or even allow judges to interpret the law in a different way. It is not like the Human Rights Act which sets Convention rights at a level above other laws, requiring interpretation where possible to bend the law to fit the Convention rights.

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The reasons for the approach being different are no doubt numerous and probably have a lot to do with different legal traditions and histories. I also wonder if the fact that national courts, not just English ones, deal with cases of all kinds, has something to do with it. IP, in particular patents, is just one of many important things the courts deal with every day. There is perhaps an element of living in an ivory tower when

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patents is all there is, as at the EPO.

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" "There is perhaps an element of living in an ivory tower when #patents is all there is, as at the EPO." http://ipkitten.blogspot.com/2021/04/boeings-comma-drama-commas-and-taking.html?showComment=1618404267737#c8669694200566028951 #epo #microcosm #patent "

Apr 18 10:51

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Apr 18 10:51

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Thanks, Freddy, for that. What I had in mind is that the courts in England routinely have to judge not also validity but also infringement, in the same trial. They see both sides of the dispute and it makes them more thoughtful about how best to decide the case justly.

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Then there is their experience before rising to the bench. Decades of plotting in smoke-filled rooms with a wily patent owner, and just as many years plotting, in other cases, with a wily accused infringer. That experience helps them to decide the dispute with justice. Who at the EPO has any such experience?

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http://ipkitten.blogspot.com/2021/04/boeings-comma-drama-commas-and-taking.html?showComment=1618409970652#c7343564602821501207

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-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | Boeing's comma drama: Commas and taking the description into account when construing a claim (T 1127/16) - The IPKat

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"Share with Patently-O. No way. It would leave its readers fully convinced that the EPO is a mad-house and that's the last thing I want to happen."

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"The differences between the UK courts and the EPO have nothing to do with the overriding objective of the CPR. Catnic reminded us to not to indulge in meticulous verbal analysis decades ago. The UK courts do not read a loose term in a contract and interpret the contract in a way which renders it commercially worthless to both parties to the contract. Whether you like the decision or hate it, the Supreme Court was clear in Lilly v

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Actavis that a patent is just another legal document and they made a point of referring to Wood v Capita, which was a contract case."

http://ipkitten.blogspot.com/2021/03/chairman-and-enlarged-board-criticised.html?showComment=1618417702372#c5932980197983650785

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-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | Chairman and Enlarged Board criticised for lack of impartiality in ViCo oral proceedings referral (G1/21) - The IPKat

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Yet a further submission is now on the Register. The anonymous sender seems to be familiar with the IPKat comments section...

https://register.epo.org/application?documentId=E532LXA78482DSU&number=EP04758381&lng=en&npl=false

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-TechrightsBN/#boycottnovell-register.epo.org | European Patent Register

http://ipkitten.blogspot.com/2021/04/boeings-comma-drama-commas-and-taking.html?showComment=1618430073418#c7168143812758700096

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Apr 18 10:57

-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | Boeing's comma drama: Commas and taking the description into account when construing a claim (T 1127/16) - The IPKat

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The decision might look odd at a glance, but I maintain that it is correct. That some people consider it as a disgrace is a point of view I do not share.

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In my opinion the BA is right when in point 2.6.1 it reminds that: an applicant (patent proprietor) could [then] arguably dispense with providing a clear and unambiguous formulation of claim features, e.g. during the grant proceedings, in order to be able to fall back on a more description-based interpretation at will during a subsequent opposition proceedings. This would however not be compliant with the main purpose of the

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provisions of Article 123(2) and (3) EPC, which is "to create a fair balance between the interests of applicants and patentees, on the one hand, and competitors and other third parties on the other".

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Referring to the description is an ultima ratio and should be an exception rather than the rule. And I still do not agree with Mr Justice Birss as what he is doing is to ignore the claim and to look at the description. This is valid in both ways, which is when given to a claim a broader definition as in the description.

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When reading the three linguistic versions of Art 69, the English text is the most mandatory. When reading the French text it is said that the description can serve to interpret the claim, but not to give it a different meaning. The German is somehow in between, but nearer to the French than to the English version.

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Why was there such an outcry when applicants/proprietors were reminded in the last edition of the Guidelines that the description is to be brought in accordance with the claims? It is to avoid situations in which the description can be taken as disclosing something which is not in the claims and vice versa.

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Talking about Actavis/Lilly: it is the non-adaptation of the description which allowed later Lilly to draw much more from the patent that what its contribution to the art was at filing. The only example properly disclosed was that of pemetrexed disodium. No other salt has ever been envisaged. The then applicant made no attempt to convince the examiner, for example by experimental data (cf. STIN) that it was not limited to disodium

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He even attempted to claim pemetrexed in general, and the examiner rightly considered that it was not originally disclosed and raised an objection under Art 123(2). This was criticised by Lord Neuberger in its famous decision, but the examiner had no choice! To me the critic was deeply unfair.

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In reply to the objection under Art 123(2) the applicant limited its claim to what he had actually disclosed, but staunchly refused to correctly amend the description. The examiner gave up, which is understandable. It is only later that the applicant came up with the broad interpretation he never considered during examination.

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How on Earth is it possible to write a FTO opinion after Actavis/Lilly?

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Is there any reasons why the Amicus Curia from VESPA and epi as well as the anonymous Amicus Curiae (i.e., the third party submissions) are not immediatly published under:

https://www.epo.org/law-practice/case-law-appeals/eba/pending.html

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-TechrightsBN/#boycottnovell-www.epo.org | EPO - Referrals pending before the Enlarged Board of Appeal

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and can only be found in the register?

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http://ipkitten.blogspot.com/2021/04/boeings-comma-drama-commas-and-taking.html?showComment=1618563282165#c1707444862627770094

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Apr 18 11:00

-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | Boeing's comma drama: Commas and taking the description into account when construing a claim (T 1127/16) - The IPKat

Apr 18 11:00

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"I agree, MaxDrei. The EPO seems to be taking the literalist approach to claim interpretation which is expressly prohibited in the Protocol to Article 69. "

Apr 18 11:00

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If "an applicant (patent proprietor) could [then] arguably dispense with providing a clear and unambiguous formulation of claim features, e.g. during the grant proceedings, in order to be able to fall back on a more description-based interpretation" does this not suggest that the Boards of Appeal would have no faith in the Examining Division to enforce Article 84 EPC properly? After all, Art 84 is there to ensure that claim

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features are, as far as possible, "clear and unambiguous"...

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More seriously, it is extremely rare that any claim, or claim feature, is truly "clear and unambiguous". An interpretation which is linguistically correct and even technically meaningful, yet departs completely from what the Applicant or their attorney envisaged or even intended, can almost always be found. The way that we make sense of claims is through context. Is it not a purpose of the description to provide the context in

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which the claims should be understood?

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In making a few observations on this, I should just say that I have only read the decision itself and I have not read the patent.

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The Board make much of not consulting the description and drawings to interpret the claim since the interpretation of feature (g) adopted by the OD provides a credible technical teaching. Feature (g) contains three sub-features:

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(g1) "evaluating a preference to determine a preferred

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network of the plurality of transmission

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networks,"

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(g2) "wherein the preference comprises a preference

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list identifying a selection of the plurality of

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broadcast networks in order of preference"

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(g3) "and identifying the highest in preference of the

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plurality of broadcast networks in the preference

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list that is available".

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The Board maintained that in the absence of a comma between them, features (g2) and (g3) should be read together and since combining them provides a credible teaching, the description and drawings should not be consulted to interpret the meaning of feature (g). Here, the Board's reasoning seems linguistically bizarre. It says that the presence of the word 'identifying' in (g2) and (g3) makes it natural to associate the second

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identifying in (g3) with the first occurrence of identifying in (g2). However, since (g2) specifies a list identifying a broadcast networks in order of preference, it is then tautologous to talking of the list identifying the highest in preference; surely a list indicating an order of preference by definition is going to identify the 'highest in preference'. To me the credible reading of that feature (g), albeit not elegantly

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worded, is to combine (g1) and (g3) and regard (g2) as effectively a bracketed explanation of what the 'preference' of (g1) is (note the wherein which points to this). I would have thought this a more credible interpretation for the person trying to come up with a logical interpretation that makes technical sense per T 190/99, unless, of course, the description teaches something different [cough].

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It is also quite ironic to see the Board say:

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This would however not be compliant with the main purpose of the provisions of Article 123(2) and (3) EPC, which is "to create a fair balance between the interests of applicants and patentees, on the one hand, and competitors and other third parties on the other" (cf. G 1/93, Reasons 8).

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Ironic, given that Art 123 EPC says nothing to this effect, yet of course the Protocol to Art 69 EPC does mention something like that [double cough].

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http://ipkitten.blogspot.com/2021/04/boeings-comma-drama-commas-and-taking.html?showComment=1618501854196#c384625380399166708

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-TechrightsBN/#boycottnovell-ipkitten.blogspot.com | Boeing's comma drama: Commas and taking the description into account when construing a claim (T 1127/16) - The IPKat

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As to the "purpose" of Art 123 EPC being (according to the EBA in G1/93) to deliver a "fair balance" between the public and patent owners, I'm astonished. I see that, here, Attentive quotes this utterance with approval but still I'm sceptical. I don't see any "balance". Instead, I see as Art 123(2) EPC as essential to the implementation of a "First to File" patent system, and Art 123(3) EPC as essential to achieve an acceptable

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degree of legal certainty for everybody. Without Art 123 EPC, the system descends into chaos that benefits neither the patent owner nor the public.

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Although this case is one on Art 123, I can't help thinking that it is infected with unfortunate thinking, endemic at the EPO, about what constitutes Art 84 EPC "clarity". My opinion, uttered now for many years, is that in the context of verbal definitions of inventive concepts, there is no such thing as 100% clarity. It is trite to assert that only when one knows the context can one ascribe a meaning to any given word. The same

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applies to any given claim. The context comes from the description and drawings. Is the EPO's idea of "clarity" is "able to be construed correctly, even when stripped of all context"? Heaven help us if it is. But judging by some of the Communications I'm getting these days from Exam Divisions, it does seem to me that this might already be the case.

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Can I put it this way: the reason for the EPO's insistence that the description be in strict conformity with the claims is that when the reader of the patent and claim 1 turns to the description for the context in which to construe the claim, she finds nothing contradictory. In Ordnung, I say, laudable.

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The reason for insisting on such strict conformity is NOT to render superfluous the task of reading the claim in the context of the description. It is downright irresponsible, and an affront to established legal practice throughout the EPC Contracting States, to pursue as an objective the idea that a claim must be construed as a freestanding document untethered from the guiding hand of the description.

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Mein lieber Max,

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Are you really frequenting the Missouri speakeasy just to proselityse? Meine Güte!

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This is by no means the first time a patent got canned at the EPO from a deadly prick by a stray comma, or a galopping semicolon infection. You will find more examples in the DG3 database. And there are the refusals and revocations that weren't appealed. I know of one.

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The present BoA decision shouldn't shock your fan club stateside, as US courts are sticklers for punctuation too.

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Daniel Victor: "Oxford Comma Dispute Is Settled as Maine Drivers Get $5 Million", The New York Times, 9 February 2018

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Looking more specifically at patent matters:

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James Yang: "Patent Drafting Tip: A comma affects meaning of items in list, IP Watchdog, 6 March 2017

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The discussion begins with the ambiguity of certain dispositions of the AIA, but then offers some advice to drafters:

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The words that we, as patent attorneys use are important and ever more so in a patent application. For this reasons, it would be prudent to be aware that utilizing a comma can change the meaning of a sentence or phrase. Patent counsel should be aware that the presence or absence of the comma in a list may affect the way that the list is interpreted and make a conscious decision to either add or remove the comma based on the

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desired end result intended by the patent drafter. Don’t let the comma have an unintended consequence.

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PatentlyO also reported a case involving punctuation.

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Dennis Crouch, Judge Plager: Construe Ambiguous Terms Against the Drafter 6 August 2013:

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3M makes an interesting argument to be sure. But the argument creates its own grammatical problems. For example, there is no comma between “continuous” and “microtextured.” And the Chicago Manual of Style also tells us that adjectives that separately modify a noun are generally separated by a comma, unless of course the second adjective is a unit with the noun being modified (which would favor Tredegar’s construction).

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The Chicago Manual of Style § 6.33 (16th ed. 2010).

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3M cited the CMoS as an authority, but one problem is that there are several competing sources with different views.

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Style manuals are also essentially destined to authors and editors producing books or periodicals, and not necessarily of legal documents. I am quite sure that none approve of the run-on, repetitive, expansive, eye-glazing style [or lack thereof] imposed by single-sentence claim requirement edicted in MPEP. (I was quite surprised the day I learned that it was a US specific requirement, without any real counterparts elsewhere, yet

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much of the world conforms to it.)

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Robert R. Sachs: Punishing Prometheus: Part IV – Machine or Transformation, We Hardly Knew Thee…, PatentlyO [again], 31 March 2012

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We are trusted with carefully carving out a space for the broadest yet most precise statement of the invention, surrounded on all sides by the prior art, using nothing more than a single sentence. Where other legal writers suffer no consequence for employing laundry lists of verbs, nouns, adjectives―to throw in the kitchen sink of do not fold, spindle, mutilate, tear, shred, distort, etc.―we are compelled by case law to

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consider every word as critical. A misplaced comma, the use of “the” instead of “a,” “at least one” instead of “each,” can spell the difference between a patent worth millions and patent worth less than wallpaper. The California Civil Code includes a section of codified Maxims of Jurisprudence; my favorite is “Superfluidity does not vitiate.” True for every attorney but patent attorneys. Show me another area of

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legal drafting that is as highly constrained in both form and substance as patent claim writing.

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[In my opinion, too many attorneys excel far more at drafting bills than patent applications or arguments. Mais passons...]

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Before one harps about the fairness of the law or the reputation of the boards, one should look at the specifics of the case. I have trouble summoning much sympathy for the proprietor. The drafting and prosecution of this case was, in my opinion, and to use a mild qualifier, rather indifferent.

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To be continued, eventually.

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Roufousse, I welcome your arrival. Indeed so, those writing claims have a challenging task. Consider the Bake America case, where the claim was held invalid because it used the word "to" instead of "at" in the context of setting a baking oven temperature, leading to an absurd result, that the product of the claimed baking process would be not bread but carbon. I'm a fan of the "mind willing to understand" case law and do not like

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to see it abused. I'm critical of the tendency of the EPO to find added matter everywhere they look, and hope for a more pragmatic and "real world" application of the Gold Standard to individual cases. I'm critical of the notion that a claim can be clear to a degree of 100% and that 100% clarity is what Art 84 requires. The Art 84 clarity standard to be attained is a "fit for purpose" standard ie clear enough for the judges to

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work with in the patents courts.

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And as to the Missouri-based blog, my main motive for posting there is to gain insights into the ways of thinking of patent attorneys in America. Sometimes, it's a bit strange, I find.

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Techrights-sec

OpenWRT has a list of off-the-shelf routers which are supported.

Apr 18 13:34

Techrights-sec

Here's and old evaluation: https://www.ascinc.com/networking/best-router-for-openwrt-lede-firmware-openvpn/

Apr 18 13:34

-TechrightsBN/#boycottnovell-www.ascinc.com | 5 Best Routers for OpenWRT LEDE Firmware & OpenVPN - [2020]

Apr 18 13:34

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Thanks, wish there was some preinstalled thing, and I guess there is. I've meanwhile spent ages with synergy and barrier, shuffling things around the desks a lot... some for the better, making this trouble a "blessing in disguise"

Apr 18 13:35

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schestowitz

>>> Hate Letter Against FSF (Concern Trolls): 1415 Committers, Letter in

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>>> Support of FSF (With Its Founder Back): 5116

>>> http://techrights.org/2021/04/17/committers-and-hate/

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>> I thought that each letter had a larger number of signers than shown here.

-TechrightsBN/#boycottnovell-techrights.org | Hate Letter Against FSF (Concern Trolls): 1415 Committers, Letter in Support of FSF (With Its Founder Back): 5116 | Techrights

schestowitz

>> abut 3000, and over 6200. What explains the discrepancy?

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> Your numbers are signature counts, roy's is commits.

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> Both lists accepted signatures by email, and then recipients of the