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| schestowitz | http://patentblog.kluweriplaw.com/2020/12/10/vico-for-oral-proceedings-at-the-epo-cipas-view/#comments | Dec 12 11:58 |
|---|---|---|
| -TechrightsSocial/#boycottnovell-social-patentblog.kluweriplaw.com | ViCo for Oral Proceedings at the EPO – CIPA’s view - Kluwer Patent Blog | Dec 12 11:58 | |
| schestowitz | " | Dec 12 11:58 |
| schestowitz | Concerned observer | Dec 12 11:58 |
| schestowitz | DECEMBER 10, 2020 AT 7:04 PM | Dec 12 11:58 |
| schestowitz | Well, if CIPA’s position was not clear before, it certainly is now! | Dec 12 11:58 |
| schestowitz | However, it remains a mystery to me how to logically square the circle between enthusiasm for VICOs but strong opposition to “hybrid” hearings. Asserting that hybrid proceedings are “inherently unbalanced” can only mean that CIPA believes that oral proceedings by videoconference are NOT equivalent to oral proceedings held on the premises of the EPO. | Dec 12 11:58 |
| schestowitz | In other words, whilst CIPA does not question the legal basis for VICOs, it adopts a position that directly contradicts the legal fiction of equivalence … with the consequence that CIPA therefore implicitly accepts that imposing compulsory VICOs impairs the rights afforded to applicants under the EPC. (The only possible alternative explanation would be that CIPA believes that, in hybrid hearings, parties participating by | Dec 12 11:58 |
| schestowitz | VICO would have an unfair advantage over those participating in person. However, this cannot justify opposing the use of hybrid proceedings. If a party is willing to accept any disadvantages associated with their choice, why should they be prevented from participating in person if they truly wish to do so?) | Dec 12 11:58 |
| schestowitz | Whilst I warmly welcome the OPTION to use VICOs for oral proceedings, I cannot for the life of me understand why, in common with the EPO, CIPA is prepared to accept (seemingly without question) that there is adequate legal basis under the EPC for the rejection of requests for in-person oral proceedings. It is not as if the Boards of Appeal have never ruled upon this issue. As pointed out in an earlier thread, there is ample | Dec 12 11:58 |
| schestowitz | case law on this point, ALL of which reaches conclusions that flatly contradict the current position of the EPO (and CIPA). | Dec 12 11:58 |
| schestowitz | For those that strongly support the mandatory use of VICOs, I appreciate that arguments questioning the legal basis in the EPC may come across as excessively nit-picking. However, in my view, to adopt such an attitude would be to miss the entire point. To be clear, the point at stake here is whether it is acceptable for the EPO to interpret the EPC in a manner that DIRECTLY CONTRADICTS interpretations established by the EPO†| Dec 12 11:58 |
| schestowitz | s judiciary (ie the Boards of Appeal). | Dec 12 11:59 |
| schestowitz | As illustrated by the explanatory note accompanying the proposal to introduce Article 15a into the RPBA, the current practice of the EPO appears to be to do nothing more than establish whether the wording of the EPC expressly forbids the interpretation that the EPO would like to adopt. This of course ignores a number of additional factors that the Boards would consider, such as meanings that are implicit in the wording of the | Dec 12 11:59 |
| schestowitz | EPC, meanings emerging from the other rules of interpretation (such as systematic, teleological and historical interpretations, as well as consideration of subsequent agreement or practice) and meanings established in the prior case law of the Boards. | Dec 12 11:59 |
| schestowitz | Because it ignores so many important factors, the EPO’s current (preferred) approach to interpreting the EPC is legally unsupportable. It is also likely to lead to a situation where established interpretations of the EPC can be overridden at the drop of a hat, without involvement of the Boards of Appeal and simply by executive decree. Is this an approach that can be condoned by the patent profession? I would hope not. | Dec 12 11:59 |
| schestowitz | REPLY | Dec 12 11:59 |
| schestowitz | Peter Parker | Dec 12 11:59 |
| schestowitz | DECEMBER 11, 2020 AT 8:22 AM | Dec 12 11:59 |
| schestowitz | Haha you have spotted the fallacy well! | Dec 12 11:59 |
| schestowitz | I am a German and European patent attorney and work inhouse as Head of IP of a consumer goods company, so let me add a bit of heresy here: is it really desirable if it becomes as cheap and easy as possible to obtain patents? | Dec 12 11:59 |
| schestowitz | We have a big and growing portfolio of patents, designs, trademarks (several thousand rights in fact) but basically never assert any these rights except against clear counterfeiters. And for this purpose, we use 99% of the time trademarks and 1% of the time design rights. | Dec 12 11:59 |
| schestowitz | That is, we do not fight against competitors using IP but rather try to be one step ahead by innovating quickly. | Dec 12 11:59 |
| schestowitz | Ensuring FTO is becoming more and more of a problem though – again, we do now what our competitors do and do not want to copy them (IP right or not), but all these IP rights of questionable quality that are sometimes pending for 15 years at the PTOS or so create an immense burden. I at least can not waive the argument, that my company would be better off if there were no patents at all, easily away. Trademarks are perhaps a | Dec 12 11:59 |
| schestowitz | different matter. | Dec 12 11:59 |
| schestowitz | As the patent systems look as if they will stay with us, at least the patent process should in my opinion be somewhat rigorous and not too easy as a means of sorting out the weakest of cases. | Dec 12 11:59 |
| schestowitz | I guess my main point here is that discussions about PTOs and procedures and fees seem to focus too much on the applicants and not enough on the effects the whole patent system has on society as a whole. | Dec 12 11:59 |
| schestowitz | REPLY | Dec 12 11:59 |
| schestowitz | MaxDrei | Dec 12 11:59 |
| schestowitz | DECEMBER 11, 2020 AT 1:13 PM | Dec 12 11:59 |
| schestowitz | Peter, I’m not seeing what relevance your comment has for the subject of this thread. | Dec 12 11:59 |
| schestowitz | But other than that, I do not see the EPO as in a hurry to lower the bar, to clear the way for the grant of claims of ever diminishing contribution to the technical field. And I don’t see why compulsory ViCo should result in any further lowering of the bar. | Dec 12 11:59 |
| schestowitz | For me, the issue is how best to reconcile ViCo in disputed proceedings with the over-riding objective to deliver as the outcome of the case a result which neither party can legitimately criticise as unjust. | Dec 12 11:59 |
| schestowitz | REPLY | Dec 12 11:59 |
| schestowitz | Patent Attorney | Dec 12 11:59 |
| schestowitz | DECEMBER 10, 2020 AT 7:07 PM | Dec 12 11:59 |
| schestowitz | I don’t see why videoconferencing is inevitable and I don’t see a reason why it should become inevitable in the future. The BoA hold hearings in person and apply a convincing hygiene concept. The same could be done in 1st instance. | Dec 12 11:59 |
| schestowitz | My personal impression is that the cost savings that could be realized by ViCo are the real driver behind this change (less office space, examiners may stay in home countries, no extra vacation and salary etc). Of course, it will be sold as “reducing the carbon footprint”, “enabling forefront technology” etc. In the end, the quality of the decisions in opposition/appeal will deteriorate considerably (haven’t met a | Dec 12 11:59 |
| schestowitz | colleague who disagrees with this), and – inevitably – of the system as a whole. Thank god there are national patent offices as well. | Dec 12 11:59 |
| schestowitz | REPLY | Dec 12 11:59 |
| schestowitz | MaxDrei | Dec 12 11:59 |
| schestowitz | DECEMBER 10, 2020 AT 7:59 PM | Dec 12 11:59 |
| schestowitz | What about the question whether the members of the fact-finding jury (the ED, OD or TBA) shall debate the decision with each other on video link or face to face. Not just in criminal proceedings but also at the EPO, I think they should all be physically present in the same room. | Dec 12 11:59 |
| schestowitz | It is different in England (as usual). There, a single judge decides the facts quietly, alone, all by him- or her-self. The judge can do that at leisure, re-running the video witness evidence as many times as needed. What does CIPA have to say about jury members hundreds of km apart from each other? Would they trust such a jury if they were the Defendant, post-pandemic, facing a gaol sentence in an American jail? | Dec 12 11:59 |
| schestowitz | REPLY | Dec 12 11:59 |
| schestowitz | Concerned observer | Dec 12 11:59 |
| schestowitz | DECEMBER 11, 2020 AT 12:20 PM | Dec 12 11:59 |
| schestowitz | Max, the law in England is indeed very different. One need only compare Article 116 EPC to CPR 39.1(1)(a): | Dec 12 11:59 |
| schestowitz | “hearing” means the making of any interim or final decision by a judge at which a person is, or has a right to be, heard in person, by telephone, by video or by any other means which permits simultaneous communication. | Dec 12 11:59 |
| schestowitz | Whilst I have not checked, I have no doubt that the rules governing hearings before the ECHR also differ in significant respects to Article 116 EPC. It is therefore not an illuminating exercise to compare the way that the EPO conducts oral proceedings to the way that the English courts (or the ECtHR) conduct their hearings. | Dec 12 11:59 |
| schestowitz | It is, however, interesting to consider the PRINCIPLES established by the ECtHR under Article 6 of the Convention: | Dec 12 11:59 |
| schestowitz | https://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf | Dec 12 11:59 |
| schestowitz | The peculiar set-up at the EPO, where there is really only one “judicial” instance, makes it hard to apply those principles directly. However, it appears to me that there is enough in the established case law to cast doubt upon whether, particularly after the end of the pandemic, denial (by the Boards) of requests for in-person proceedings could result in a breach of a party’s rights under Article 6 ECHR. | Dec 12 12:00 |
| schestowitz | REPLY | Dec 12 12:00 |
| schestowitz | Extraneous Attorney | Dec 12 12:00 |
| schestowitz | DECEMBER 11, 2020 AT 9:58 AM | Dec 12 12:00 |
| schestowitz | This position is, frankly, as disappointing as it is unsurprising. One can only wonder why on Earth ViCos ought to be “inevitable in the long term for all oral proceedings at the EPO”. This suspiciously looks like assuming the (desired) conclusion. | Dec 12 12:00 |
| schestowitz | Again, holding OPs via ViCo at a party’s request is entirely different from forcing a ViCo upon that party. In the former case, the party voluntarily waives their right to an in-person hearing. The latter option is acceptable only if it has a proper legal basis in the EPC. Where exactly this legal basis can be found is a mystery. Also conspicuously missing is the proper justification for extending emergency measures for all | Dec 12 12:00 |
| schestowitz | eternity! | Dec 12 12:00 |
| schestowitz | I would also like to add that the argument of “environmental impact” is not as bulletproof as it seems on the surface. Coming to the EPO by train is a viable option for many European patent attorneys, at least when summoned to the Hague. On the other hand, videoconferencing and Internet use in general have an environmental impact as well. The claim that switching all OPs to ViCos will be environmentally beneficial is not | Dec 12 12:00 |
| schestowitz | plausible without a proper environmental impact study. | Dec 12 12:00 |
| schestowitz | REPLY | Dec 12 12:00 |
| schestowitz | epo watcher | Dec 12 12:00 |
| schestowitz | DECEMBER 11, 2020 AT 10:07 AM | Dec 12 12:00 |
| schestowitz | Max Drei, your comments are very well taken. It is getting clear that three-member panels as required by the EPC for OD and BOA are burdensome and outdated. CIPA should not have stopped here, they should have advocated revising the EPC towards the UK system of single judges. | Dec 12 12:00 |
| schestowitz | REPLY | Dec 12 12:00 |
| schestowitz | MaxDrei | Dec 12 12:00 |
| schestowitz | DECEMBER 11, 2020 AT 1:07 PM | Dec 12 12:00 |
| schestowitz | Watcher, I am taking your comment as sarcasm, written with your tongue firmly stuck up your cheek. Most people understand that a single judge is compatible with fact-finding under adversarial English law (witness evidence, discovery and cross-examination) but NOT with fact-finding under mainland European inquisitorial civil law procedure. | Dec 12 12:00 |
| schestowitz | Or am I seeing it wrong? Are you serious? | Dec 12 12:00 |
| schestowitz | REPLY | Dec 12 12:00 |
| schestowitz | Attentive Observer | Dec 12 12:00 |
| schestowitz | DECEMBER 11, 2020 AT 1:51 PM | Dec 12 12:00 |
| schestowitz | Your are nearly there! | Dec 12 12:00 |
| schestowitz | Not for the Boards, but for the examining divisions, the one man division is possible. See Art 18(3) EPC! | Dec 12 12:00 |
| schestowitz | This would legalise the present working of the examining divisions. | Dec 12 12:00 |
| schestowitz | REPLY | Dec 12 12:00 |
| schestowitz | Richard Gillespie | Dec 12 12:00 |
| schestowitz | DECEMBER 11, 2020 AT 3:45 PM | Dec 12 12:00 |
| schestowitz | Given the guidance from the UK Intellectual Property Office is that a visa and/or work permit may be needed for all travelling from the UK to the Schengen Area involving work or service provision, I believe CIPA’s position may have more to do with perceived impeding problems with travel over the merits of ViCos hearings Vs face-to-face hearings and it’s an entirely sensible position for them to take. | Dec 12 12:00 |
| schestowitz | Being based in Ireland, we’re very well briefed on Brexit (given the mess it’s going to cause here). I’m sad to see the negative comments on this thread regarding our UK colleagues at the moment. Despite the mess the UK government’s actions are going to cause for Ireland and the rest of the EU, it is not fair to let ones feelings regarding the actions of the UK government colour ones feelings towards our fellow patent | Dec 12 12:00 |
| schestowitz | professionals based in the UK. I do not envy them at the moment – don’t be too hard on them! | Dec 12 12:00 |
| schestowitz | REPLY | Dec 12 12:00 |
| schestowitz | Attentive Observer | Dec 12 12:00 |
| schestowitz | DECEMBER 11, 2020 AT 12:34 PM | Dec 12 12:00 |
| schestowitz | Mr Chairman of CIPA, | Dec 12 12:00 |
| schestowitz | I cannot but agree with the previous commentators. | Dec 12 12:00 |
| schestowitz | When looking at the comments filed in reply to the publication in this blog of: “Response to EPO consultation: Don’t impose oral proceedings by videoconference”, you will not find one commentator approving the mandatory holding of OP in form of a ViCo after the pandemic. | Dec 12 12:00 |
| schestowitz | http://patentblog.kluweriplaw.com/2020/12/02/response-to-epo-consultation-dont-impose-oral-proceedings-by-videoconference/ | Dec 12 12:00 |
| -TechrightsSocial/#boycottnovell-social-patentblog.kluweriplaw.com | Response to EPO consultation: Don’t impose oral proceedings by videoconference - Kluwer Patent Blog | Dec 12 12:00 | |
| schestowitz | A few consider them necessary during the pandemic, but all commentators are of the opinion of that it should be left to the parties to decide whether they want to have OP in form of a ViCo in the future. | Dec 12 12:00 |
| schestowitz | Imposing OP in form of ViCo like it is done in first instance or that it should be left to the discretion of the BA, lacks any legal basis in the present EPC. | Dec 12 12:00 |
| schestowitz | It is not being pedantic to remind you of the lack of legal basis of such a move. Even the boldest interpretations of the EPC under Art 31 and 32 of the Vienna Convention on the Law of Treaties do not allow to come to the conclusion that mandatory OP in form of a ViCo have a legal basis. | Dec 12 12:00 |
| schestowitz | The “Travaux Préparatoires” show that there was thus unanimous agreement that oral proceedings before the Boards of Appeal were meant to be proceedings in person. What applies before the BA applies mutatis mutandis to the first instance. That it implies travel and corresponding costs was not a deterrent to render OP in person mandatory. | Dec 12 12:01 |
| schestowitz | When on top of this the members of the deciding body can sit miles apart in different locations, it boils down to fully dematerialise the EPO. This is a change of the EPC which cannot be decided by the head of the EPO or the AC. This needs a Diplomatic Conference! | Dec 12 12:01 |
| schestowitz | That technical progress can help in reducing travel is acceptable, but reducing OP to seeing the other party or the deciding body merely on pictures the size of a large post stamp is not something which is everybody’s liking. If you are happy with it, fair enough, but do not impose this view on others. | Dec 12 12:01 |
| schestowitz | If the parties agree and the deciding body sits together at the same location, why not. Otherwise my answer is a simple no. Even you do not agree on “hybrid” ViCos and this says a lot. | Dec 12 12:01 |
| schestowitz | I think your plea in favour of OP in form of a ViCo has other reasons. Due to Brexit, the English legal profession, and you are part of it, has lost access to the UPC (should it ever come into life), and you are simply looking at means which could compensate for the loss. | Dec 12 12:01 |
| schestowitz | One way of compensating the loss would be to enhance the level of your actions before the EPO and regain ground over patent representatives firms which are located or have a branch in Munich (or in The Hague). I can understand this wish, but it should remain a wish a not be imposed on all other representatives and users of the EPO. | Dec 12 12:01 |
| schestowitz | It is nowhere said in the EPC that employees of the parties, accompanying persons, representatives of non-EPC member states, or even a party itself, have to come to OP in either Munich or The Hague provided they are properly represented. I see there a vast reservoir of savings, be it moneywise or in carbon footprint. | Dec 12 12:01 |
| schestowitz | But this would mean that your clients in the US or in Asia could not participate in OP should they really want to save and reduce their carbon footprint. But then, the attractiveness of the British profession would be thoroughly degraded. This is for me the deep reason why you want to impose OP in form of ViCos at the EPO. | Dec 12 12:01 |
| schestowitz | Claiming that there is presently “the opportunity to shape the future of the patent system in the EPC Contracting States” is simply a fig leaf behind which you want to hide your basically mercantile interests. What looks good for your purse is not necessarily good for everybody. | Dec 12 12:01 |
| schestowitz | " | Dec 12 12:01 |
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| schestowitz | Re: FINALLY, someone has fixed the stupidity of XKCD #1357 | Dec 12 17:47 |
| schestowitz | > https://xkcd.com/1357/ <https://xkcd.com/1357/> | Dec 12 17:47 |
| -TechrightsSocial/#boycottnovell-social-xkcd: Free Speech | Dec 12 17:47 | |
| schestowitz | > | Dec 12 17:48 |
| schestowitz | > https://dontgetanyideas.com/comic/20201211 | Dec 12 17:48 |
| -TechrightsSocial/#boycottnovell-social-dontgetanyideas.com | 72: Freedom of Speech - Don't Get Any Ideas | Dec 12 17:48 | |
| schestowitz | > <https://dontgetanyideas.com/comic/20201211> | Dec 12 17:48 |
| schestowitz | > | Dec 12 17:48 |
| schestowitz | > Only took 5 years. | Dec 12 17:48 |
| schestowitz | I am in favour of ridicule, not ousting. Unless there is some corruption. | Dec 12 17:48 |
| schestowitz | > Stallman: coined "POSIX" | Dec 12 17:50 |
| schestowitz | > | Dec 12 17:50 |
| schestowitz | > Babbage: invented cow-catcher (pilot) but it wasn't built according to | Dec 12 17:50 |
| schestowitz | > his design | Dec 12 17:50 |
| schestowitz | > | Dec 12 17:50 |
| schestowitz | > Babbage was known for having a bit of a combative personality. | Dec 12 17:50 |
| schestowitz | > | Dec 12 17:50 |
| schestowitz | > The story goes that he wrote to Alfred, Lord Tennyson, to complain about | Dec 12 17:51 |
| schestowitz | > a poem that reads "Every moment dies a man, every moment a man is born". | Dec 12 17:51 |
| schestowitz | > | Dec 12 17:51 |
| schestowitz | > Babbage took issue with this, and wrote to Tennyson complaining that "If | Dec 12 17:51 |
| schestowitz | > this were true, the population would be at a standstill." | Dec 12 17:51 |
| schestowitz | > | Dec 12 17:51 |
| schestowitz | > He allegedly suggested that Tennyson replace the line with "Every moment | Dec 12 17:51 |
| schestowitz | > dies a man, every moment 1 1/16 of a man is born". | Dec 12 17:51 |
| schestowitz | > | Dec 12 17:51 |
| schestowitz | > I haven't checked whether this is apocryphal. I have checked if L.F. | Dec 12 17:51 |
| schestowitz | > Menabrea numbered his operations (the first line numbers) in a table | Dec 12 17:51 |
| schestowitz | > like Lovelace's famous first program. At least in her translation of his | Dec 12 17:51 |
| schestowitz | > work (which is what inspired and added her famous table/program with a | Dec 12 17:51 |
| schestowitz | > GOTO instruction) his tables are numbered like hers. | Dec 12 17:51 |
| schestowitz | > | Dec 12 17:51 |
| schestowitz | > I have not yet found his version in the original Italian, so I still | Dec 12 17:51 |
| schestowitz | > don't know if the operation numbers are hers, his or Babbages. But one | Dec 12 17:51 |
| schestowitz | > of those three most likely invented line numbers. | Dec 12 17:51 |
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| schestowitz | > Hi Roy Schestowitz, | Dec 12 18:56 |
| schestowitz | > | Dec 12 18:56 |
| schestowitz | > I was reading your posts and it was also fun to see Linux Academy and A | Dec 12 18:56 |
| schestowitz | > Cloud Guru pop up.Thanks so much for your mentions. But now, A Cloud | Dec 12 18:56 |
| schestowitz | > Guru acquired Linux Academy, could you please help us to get the new | Dec 12 18:56 |
| schestowitz | > link up and running for the following posts: | Dec 12 18:56 |
| schestowitz | > | Dec 12 18:56 |
| schestowitz | > | Dec 12 18:56 |
| schestowitz | > 1. Programming: Django, PyCharm, Python, 'RIP' Linux Academy and Looking | Dec 12 18:56 |
| schestowitz | > Into the Next 20 Years of Enterprise Java | Tux Machines | Dec 12 18:56 |
| schestowitz | > <http://www.tuxmachines.org/node/131928> | Dec 12 18:56 |
| -TechrightsSocial/#boycottnovell-social-www.tuxmachines.org | Programming: Django, PyCharm, Python, 'RIP' Linux Academy and Looking Into the Next 20 Years of Enterprise Java | Tux Machines | Dec 12 18:56 | |
| schestowitz | > | Dec 12 18:56 |
| schestowitz | > - Add the text "(now is a part of A Cloud Guru)" after "Linux Academy" | Dec 12 18:56 |
| schestowitz | > | Dec 12 18:56 |
| schestowitz | > - Hyperlink "A Cloud Guru" with the URL: | Dec 12 18:56 |
| schestowitz | > https://acloudguru.com/linux-training | Dec 12 18:56 |
| schestowitz | > <https://acloudguru.com/linux-training>, | Dec 12 18:56 |
| schestowitz | > | Dec 12 18:56 |
| -TechrightsSocial/#boycottnovell-social-acloudguru.com | Linux Training Online | A Cloud Guru | Dec 12 18:56 | |
| schestowitz | > - Remove all the current links of Linux Academy. | Dec 12 18:56 |
| schestowitz | > | Dec 12 18:56 |
| schestowitz | > | Dec 12 18:56 |
| schestowitz | > 2. Linux Foundation/Linux Academy Teaching GNU/Linux | Tux Machines | Dec 12 18:56 |
| schestowitz | > <http://www.tuxmachines.org/node/138315> | Dec 12 18:56 |
| -TechrightsSocial/#boycottnovell-social-www.tuxmachines.org | Linux Foundation/Linux Academy Teaching GNU/Linux | Tux Machines | Dec 12 18:56 | |
| schestowitz | > | Dec 12 18:56 |
| schestowitz | > - Remove the current link at the context A Cloud Guru and Linux Academy | Dec 12 18:56 |
| schestowitz | > F.A.Q and hyperlink "A Cloud Guru" with the URL: | Dec 12 18:56 |
| schestowitz | > https://acloudguru.com/ <https://acloudguru.com/> | Dec 12 18:56 |
| -TechrightsSocial/#boycottnovell-social-acloudguru.com | Cloud Computing Certification Training Courses | A Cloud Guru | Dec 12 18:56 | |
| schestowitz | > | Dec 12 18:56 |
| schestowitz | > | Dec 12 18:56 |
| schestowitz | > | Dec 12 18:56 |
| schestowitz | > Thanks for your time, and let me know if you have any questions, | Dec 12 18:57 |
| schestowitz | > | Dec 12 18:57 |
| schestowitz | > Long | Dec 12 18:57 |
| schestowitz | > | Dec 12 18:57 |
| schestowitz | > A Cloud Guru | Dec 12 18:57 |
| *rianne has quit (Read error: Connection reset by peer) | Dec 12 23:50 | |
| *rianne (~rianne@host81-154-173-106.range81-154.btcentralplus.com) has joined #boycottnovell-social | Dec 12 23:50 | |
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