IRC: #techbytes @ FreeNode: Saturday, June 05, 2021

schestowitz

<h5><a href="https://brendangregg.com/blog/2021-06-04/an-unbelievable-demo.html">An Unbelievable Demo</a></h5>

-TechBytesBot/#techbytes- ( status 404 @ https://brendangregg.com/blog/2021-06-04/an-unbelievable-demo.html">An )

schestowitz

schestowitz

<p>A few years later, Apple added dozens of my tools to OS X. They left my name, copyright, and CDDL open source license intact, and even improved and enhanced some of them. Years later, Oracle did the same for Oracle Solaris 11, and the BSD community did for FreeBSD. My thanks to all of you. </p>

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<p> You might say that this wasn't really Sun the company doing this, but rather, a careless individual. But there was something in Sun's culture that contributed to this kind of carelessness. It was something I and my consulting colleagues had run into before: The belief at Sun that only Sun could make good use of its own technologies, and anything created outside of Sun was trash. When these Sun employees found

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something that was good, they were inclined to assume it came from Sun, and it was therefore safe to reuse and rebrand (and relicense) as they assumed they already held the copyrights. </p>

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<p> There were also others at Sun that did try hard to do the right thing by me and my work. On at least four other occasions my DTraceToolkit was built into observability products, without stripping licenses. (In one case they wanted to relicense to GPL, and talked to me and Sun legal about it, but that's another story.) </p>

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<p> This also wasn't the last time someone unwittingly tried to sell me my own work, it was just the first. I've learned to not tell sales people that I invented what they are showing me, as they then give me funny looks like I'm a crazy person, but instead to simply say "I have a lot of experience with that technology" and leave it at that.</p></blockquote></li>

http://ipkitten.blogspot.com/2021/05/breaking-oral-proceedings-in-g121-vico.html?showComment=1622719045198#c4163047109739798911

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schestowitz

schestowitz

-TechBytesBot/#techbytes-ipkitten.blogspot.com | BREAKING: Oral proceedings in G1/21 (ViCo) rescheduled due to procedural technicality - The IPKat

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To quote from the Burgh House principles (https://www.ucl.ac.uk/international-courts/sites/international-courts/files/burgh_final_21204.pdf):

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"9.2 Judges shall not serve in a case with the subject-matter of which they have had any other form of association that may affect or may reasonably appear to affect their independence or impartiality".

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We can conclude that the President of the BoA must have overlooked this principle when (originally) deciding to serve in case G 1/21. Frankly, it is hard to see how even the appearance of impartiality can now be restored in view of the fact that the EBA has not (completely) rescinded the decisions taken by the President of the BoA in G 1/21.

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This principle is also relevant to the involvement of X and Y as representatives of the Boards in public discussions relating to (proposed) Art 15a RPBA. This is because it calls into question whether that involvement represents a "form of association that may affect or may reasonably appear to affect their independence or impartiality". The EBA's decision to hide behind the absence of public documents that conclusively demonstrate X

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and Y's involvement is therefore extremely disappointing, as is its apparent reluctance to make public the statements made by X and Y. This is particularly so in view of the following Burgh House principles:

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"14.1 Judges shall disclose to the court and, as appropriate, to the parties to the proceedings any circumstances which come to their notice at any time by virtue of which any of Principles 7 to 13 apply.

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14.2 Each court shall establish appropriate procedures to enable judges to disclose to the court and, as appropriate, to the parties to the proceedings matters that may affect or may reasonably appear to affect their independence or impartiality in relation to any particular case".

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I can only hope that, when it is published, the EBA's decision on the opponent's further partiality objections explains why X and Y's "hidden" involvement in public discussions on Art 15a RPBA does not justify their exclusion.

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Finally, as an aside, it seems to me that the following Burgh House principle is relevant to certain of the opponent's most recent partiality objections:

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"11.1 Judges shall not sit in any case in the outcome of which they hold any material personal, professional or financial interest".

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On certain points, the opponent made out a pretty clear-cut case for internal members of the EBA having either a personal or a professional interest in the outcome of G 1/21. I am curious to see how the EBA reasons their way around that point.

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http://ipkitten.blogspot.com/2021/05/breaking-oral-proceedings-in-g121-vico.html?showComment=1622731430375#c659579387697372645

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-TechBytesBot/#techbytes-ipkitten.blogspot.com | BREAKING: Oral proceedings in G1/21 (ViCo) rescheduled due to procedural technicality - The IPKat

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For instance the German Federal Constitutional Court has in a decision of March 2020 that it is possible to appoint judges for a specific length of time under two conditions:

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1) they have to have a life time position as civil servants

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2) they cannot be reappointed.

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I am curious to see whether these two conditions will play a role when the GFCC will decide upon the independence of the BA.

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The whole way G 1/21 has been managed by the chair of the EBA shows amply that the BA are anything but independent.

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On top of it, the chair of the BA only has the powers delegated to him by the president of the EPO. There is not even the perception of the independence!

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http://ipkitten.blogspot.com/2021/06/reference-to-hybridoma-does-not-limit.html?showComment=1622822765375#c3059164067963230881

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-TechBytesBot/#techbytes-ipkitten.blogspot.com | Reference to a hybridoma does not limit a product-by-process antibody claim (T 0032/17) - The IPKat

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I wonder what the Board would have concluded if the opponent had provided evidence that a sample had been sent out early.

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If the deposit is made under the Budapest Treaty then any sample issued before publication could only have been due to an error at the depositary. So there shouldn't be any potential for prior use because the depositary shouldn't be sending out samples early, but what happens if the depositary makes a mistake?

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Surely the applicant is afforded some sort of protection against this kind of accidental disclosure? Obviously the EPO isn't a party to the Budapest Treaty but I always thought Rule 31 EPC was supposed to follow its spirit.

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http://ipkitten.blogspot.com/2021/05/breaking-oral-proceedings-in-g121-vico.html?showComment=1622832864950#c8770269707161742304

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-TechBytesBot/#techbytes-ipkitten.blogspot.com | BREAKING: Oral proceedings in G1/21 (ViCo) rescheduled due to procedural technicality - The IPKat

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Partiality might be discussed in a non-open OP before the EBA, but the first decision in which the chair of the BA and his his faithful servant were removed by their peers, was taken without the parties. This is a scandal on its own as even the discussion on partiality should be of contradictory nature.

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Refusing to hand over the declarations of X and Y, in other words Mrs R. and Mr E, is a further scandal. The parties have the right to know why the members accused of partiality consider themselves this is not the case.

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The EBA is tumbling from one scandal to the next.

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One wonder who will be the beneficiary of the deed!

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I would say for some at the EPO the rules of law deserve a “dynamic interpretation”, and if they are not to their liking, they are simply ignored. The tragic fact is that people in charge of paying due respect to the EPC are actually acting against it.

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http://ipkitten.blogspot.com/2021/05/breaking-oral-proceedings-in-g121-vico.html?showComment=1622813026765#c941733968700994409

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-TechBytesBot/#techbytes-ipkitten.blogspot.com | BREAKING: Oral proceedings in G1/21 (ViCo) rescheduled due to procedural technicality - The IPKat

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"On certain points, the opponent made out a pretty clear-cut case for internal members of the EBA having either a personal or a professional interest in the outcome of G 1/21. I am curious to see how the EBA reasons their way around that point."

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The objections concerning partiality have most likely be dissmissed as being late, because they could have been brought forward already in the first submission of the opponent. I'll leave it to the readers to decide whether such a formalistic dismissal will decrease the perception of bias on behalf of the EBA.