[12:24] schestowitz[TR][12:24] schestowitz[TR]Those wishing to go inside for a closer look at the frequently darkened offices full of computers, servers and other high-tech electronic equipment, must pass through security doors and a phalanx of cameras. After all, the building is home to programmers and hackers with a sinister mission: sowing chaos and causing destruction.
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[12:44] schestowitz[TR][12:44] schestowitz[TR]Major improvements include reduced memory and CPU consumption for the use case of running dnsdist on devices with few resources, OpenWrt integration, options for faster TLS, and many other improvements. For a summary of the changes since 1.7.3, please have a look at the announcement of the first release candidate.
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[12:47] schestowitz[TR][12:47] schestowitz[TR]An Arduino board monitors all of the potentiometers via multiplexers. It runs a MIDI controller library, so it can send MIDI messages to a computer connected through a USB cable. As far as the computer is concerned, the connected device is just a standard MIDI controller. That means that it will work with any MIDI software and HYPRREAL only had to configure the different controls within tha [12:47] schestowitz[TR] t software. The result is a useful MIDI controller in a very attractive retro package.
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Dear Mr Thomas, strictly speaking, I think that your response could be viewed as an example of whataboutism.
https://en.wikipedia.org/wiki/Whataboutism
Nevertheless, you pose a fair counter-question. I sha [15:36] schestowitz[TR] ll therefore do my best to provide an answer.
In essence, it seems to me that what is at stake are the following questions.
1. Does amendment of a claim to incorporate a feature (D) previously presented as being optional change the scope of protection afforded by those claims?
2. If, after such an amendment to the claims, the description is not "adapted" accordingly, is it possible that a national cour [15:36] schestowitz[TR] t would interpret the claims so as to afford protection for embodiments (or equivalents) that do not incorporate feature D?
My answer to both questions is: it depends upon the facts of the case.
Regarding question 1, there will be many cases where it is easy to conclude that the answer is "yes". However, there will be others where the answer can only be determined after careful considera [15:36] schestowitz[TR] tion of how the (amended and unamended) claim language should be interpreted. For example, there may be cases where the unamended claim language is interpreted as inherently incorporating feature D. Alternatively, there may be cases where embodiments excluding feature D represent "immaterial variants" of the invention according to a strict, literal interpretation of the claims. Each case needs to be decided on its o [15:36] schestowitz[TR] wn merits, considering all of the relevant facts.
In the light of the above explanation, I think you will understand why the answer to question 2, is also "It depends". However, I will add the following.
Firstly, Article 69 EPC makes it clear that the extent of the protection conferred shall be determined by the claims. By way of contrast, that Article indicates that the description and drawing [15:36] schestowitz[TR] s shall (only) be used to interpret the claims.
This means that the description only has secondary importance with regard to determining the scope of protection. There is nothing in Article 69 EPC or its Protocol that requires a national court to interpret the claims by ignoring (the meaning of) their wording and determining the scope of protection solely by reference to the "invention" as set out [15:36] schestowitz[TR] in the (unamended) description. Indeed, Article 1 of the Protocol states that this is precisely what must a national court must not do.
Secondly, despite rather more lenient EPO description adaptation practice being in place for decades, I have yet to see evidence of a national court reaching the "wrong" decision due to an "improper" adaptation of the description enabling an over-broad interpret [15:36] schestowitz[TR] ation of the claims. Regarding their ability to properly determine the scope of amended claims (regardless of whether the description has been "strictly" adapted to the claims as amended), my confidence in the national courts therefore seems to be justified.
So that is my answer. Whether you will find it "compelling and convincing" is doubtful. However, I hope that you will at least agree that it is in [15:36] schestowitz[TR] ternally consistent, logical and (with regard to national court decisions) at least arguably supported by the evidence.
Perhaps you would now care to provide your response to the point that I made in my 29 March comment? [15:36] schestowitz[TR] Thank you DXThomas. I apologise for not having the... http://ipkitten.blogspot.com/2023/03/g-221-did-invention-as-originally.html?showComment=1680270704186#c839596560196828768 [15:36] schestowitz[TR]Thank you DXThomas. I apologise for not having the...
Thank you DXThomas. I apologise for not having the time to respond to every one of your excellent points. I will only pick up on the point about criteria for patentability being the same for all technology areas. Here is t [15:36] schestowitz[TR] he last para of G2/21. Please note that sentence about the technical field influencing the outcome:
"The Enlarged Board is aware of the abstractness of some of the aforementioned criteria. However, apart from the fact that the Enlarged Board, in its function assigned to it under Article 112(1) EPC, is not called to decide on a specific case, it is the pertinent circumstances of each case which provide the basis on wh [15:36] schestowitz[TR] ich a board of appeal or other deciding body is required to judge, and the actual outcome may well to some extent be influenced by the technical field of the claimed invention. Irrespective of the actual circumstances of a particular case, the guiding principles set out above should allow the competent board of appeal or other deciding body to take a decision on whether or not post-published evidence may or may not be relied upon in [15:36] schestowitz[TR] support of an asserted technical effect when assessing whether or not the claimed subject-matter involves an inventive step."
I think those that practice in the pharma area know that they have always had a distinct set of rules at the EPO for patentability. Essentially if you bring a new molecule into the world (perhaps universe) you get a a lot of leniency at the EPO for it being useful for something, and you can u [15:36] schestowitz[TR] se post-filing data to greatly assist in this. Their distinct 'deal' with the EPO has been called into questions as 'plausibility' has spread across tech areas, and I believe the EB is reassuring them in this decision that the rules have not changed for them. You can still cover billions of compounds with a product claim if you show (for example) 11 of them have an activity in some sort of relevant assay. That is deemed fair in the [15:36] schestowitz[TR] pharma field. Thank you again for your response which really is a blog post in itself
[15:36] schestowitz[TR] Dear Santa, [15:36] schestowitz[TR] I do not know on what you base your ... http://ipkitten.blogspot.com/2023/03/g-221-did-invention-as-originally.html?showComment=1680252643455#c4219201308645910796 [15:36] schestowitz[TR]Dear Santa, [15:36] schestowitz[TR] I do not know on what you base your ...
Dear Santa,
I do not know on what you base your speculation, but I do not think, like Mr Hagel, that the powers of the EBA will be curtailed in any form by the UPC in matters of validity. That the UPC wants to become the leading court in Europe is manifest. It might become it in matters of infringement, but I have doubts in matters of validity. In matters of val [15:36] schestowitz[TR] idity, the UPC might simply add a layer of case and I do not think that it will be helpful.
Your reference to appeals from the UPC to the CJEU is puzzling. The only possibility foreseen in the UPCA is not to appeal to the CJEU, but to file requests for preliminary rulings when it comes to the interpretation of Union law, cf. Art 21 UPCA. For instance, this is presently done by national courts when it comes to SPC, althou [15:36] schestowitz[TR] gh there is not even yet a European SPC.
The EPC is anything but not Union law. The drafters of the UPCA were very careful not to allow the CJEU to deal with substantial patent law. This does however not mean that the CJEU will not attempt to bring in its opinion on substantial patent law when deciding on preliminary rulings from the UPC. Wait and see.
That the UPC might adopt a more patentee-friendly a [15:36] schestowitz[TR] ttitude towards proprietors, like the German Federal Court, is possible. That the boards of appeal of the EPO shall be bound by decisions of the UPC in matters of validity, is nowhere to be found in the UPCA or in the EPC. There is not even an agreement on the exchange of information between the two institutions. That the EPO has an agreement with the UPC is a different matter, as the boards are independent from the EPO. By th [15:36] schestowitz[TR] e way, there is an agreement on exchange of information between the CJEU and the EFTA court.
The only possibility for the boards of appeal of the EPO to be bound by decisions of the UPC will only occur should the EBA gives way to political pressure and comes up with decisions like G 3/19 and its dynamic interpretation.
To assert that case law needs to be technology specific is somehow surprising. I fail [15:36] schestowitz[TR] to see in the EPC legal rules which are specific to different areas of technology. It is the same EPC for all areas of technology. That depending on the technical area, the weight given to the common general concepts might slightly differ is correct, but this is no more than a truism. For instance, that in chemistry, pharmacy and biotech at large, you might have more problems of sufficiency is well-known and not surprising. But the [15:36] schestowitz[TR] criteria for novelty, added matter and IS are the same as in other technical areas.
As far as procedural aspects are concerned there are however clear developments which show that the boards develop their own private procedural case law. See for instance the diverging interpretation of G 1/21, the deletion of claims or grouping of claims. There does not seem one a predictable way on how the discretion is applied< [15:36] schestowitz[TR] br />
Even in matters of substance, notable differences are emerging. Some boards consider that the claims have always to be interpreted with taking into account the description under Art 69. Other boards consider that recourse to the description shall be limited to exceptional circumstances.
Those different approaches are not really helpful for parties which are always in quest of reliability and predictability. T [15:36] schestowitz[TR] he boards of appeal are only bound by the EPC and there is no need to codify their freedom of devising case law. That they inform themselves on developments of case at national level is nothing surprising, but they are by no means bound those. Look at the long analysis of national case law in G 2/21.
[15:36] schestowitz[TR] Thank you Francis Hagel. The UPC is an EU project,... http://ipkitten.blogspot.com/2023/03/g-221-did-invention-as-originally.html?showComment=1680250819041#c1603118786525139459 [15:36] schestowitz[TR]Thank you Francis Hagel. The UPC is an EU project,...
Thank you Francis Hagel. The UPC is an EU project, and EU projects always keep expanding to encompass more and more of the relevant activity in Europe. However, in this case my guess is that the EB has also noticed that i [15:36] schestowitz[TR] ts own existence has hampered proper development of the Boards of Appeal as they did not have the confidence to essentially create the equivalent of new law within case law. Maybe even the EB has noticed how the US Federal Circuit was unable to develop case law properly after the Alice, Mayo and Myriad US Supreme Court decisions, i.e. develop new tests as needed, and therefore appreciated that it is possible for a superior court to [15:36] schestowitz[TR] prevent the proper and 'full' functioning of a lower appeal court. With a 'possible' threat now looming in the form of a UPC with allegiance to the EU, the EB is taking very late steps in G2/21 to bring the Boards of Appeal up to the required 'independence', and essentially confidence, to cope in the new patent landscape that is emerging. [15:36] schestowitz[TR] Dear Proof of the pudding, [15:36] schestowitz[TR] I have a simple questi... http://ipkitten.blogspot.com/2023/03/g-221-did-invention-as-originally.html?showComment=1680247859928#c5732890093011510764 [15:36] schestowitz[TR]Dear Proof of the pudding, [15:36] schestowitz[TR] I have a simple questi...
Dear Proof of the pudding,
I have a simple question: original claim ABC. Original description ABC. D is declared optional in the description and is embodied in a dependent claim. Following examination, the allowable claim reads ABCD. Do you think that the description should remain unamended and D still mentioned as optional?
I have never received a compelling and co [15:36] schestowitz[TR] nvincing reply to this question by all the proponents of not amending the description.
To me, the inevitable logical conclusion is that the description cannot be left as filed and the optional character of D cannot remain. This reasoning can be applied applies mutatis mutandis to other cases in which the description has to be adapted.
If you consider that no amendment to the description in the sense I sugges [15:36] schestowitz[TR] t is necessary, the inevitable logical conclusion is that when later in front of a national judge it comes to interpreting the description under Art 69(1) and the Protocol, you will actually wish to assert that the claim, although limited to ABCD, should not be looked at so narrowly as the description still says that D is optional.
The reason dtre of Art 84, second sentence, is to avoid this possibility. What is wro [15:36] schestowitz[TR] ng with the requirement of adapting the description, when the actual contribution to the art is limited to ABCD?
[15:36] -TechBytesBot/#techbytes-ipkitten.blogspot.com | G 2/21: Is the technical effect embodied by the invention as originally disclosed? - The IPKat [15:36] -TechBytesBot/#techbytes- ( status 404 @ https://en.wikipedia.org/wiki/Whataboutism