●● IRC: #techbytes @ Techrights IRC Network: Saturday, January 06, 2024 ●● ● Jan 06 [01:55] *u-amarsh04 has quit (Ping timeout: 2m30s) ● Jan 06 [02:58] *fury999i- has quit (Ping timeout: 2m30s) ● Jan 06 [03:47] schestowitz http://ipkitten.blogspot.com/2024/01/will-we-have-referral-on-using.html?showComment=1704395496870#c3514473669445893747 [03:47] -TechBytesBot/#techbytes-ipkitten.blogspot.com | Will we have a referral on using the description for claim interpretation or is the Board of Appeal jumping the gun? (T 439/22) - The IPKat [03:47] schestowitz "The Boards suggestion for a referral to the EBA in this case is surprising indeed. In point 5.1 of the communication, the Board gives a black-and-white picture of the case law of the EPO as to whether the claims should be interpreted in the light of the description, in the form of two lines of case law. This looks like a distorted view, the case law is much more nuanced.

The case at hand illustrates a situation where, the [03:47] schestowitz description provides a dictionary for the terms of the claims. As stated in CLB II.A.6.3.3,: In several decisions the boards have stated that terms used in patent monopoly documents should be given their normal meaning in the relevant art, unless the description gives them a special meaning (see e.g. T 1321/04, T 1089/11, T 25/15, T 1844/15). According to the established case law, the patent monopoly document may be its own dictiona [03:47] schestowitz ry (see e.g. T 311/93, T 523/00, T 1192/02, T 61/03, T 1321/04, T 1388/09, T 2480/11, T 1817/14).

This is quite clear and it is difficult to understand a justification for a referral for the EBA. The Boards suggestion offers no specific explanation for why such established case law , based on so many decisions, should be questioned.

The explanation could be that a referral would affect the potential ref [03:47] schestowitz erral T 56/21 regarding the adaptation of the description, based on the argument that this issue would be indirectly influenced by the role of the description for the interpretation of claims.

As to T 56/21 (EP3094648), I can mention that anonymous two third party observations have been submitted on November 24, citing a number of articles published by colleagues in epi information and CIPA Journal, including one I have auth [03:47] schestowitz ored, all challenging the adaptation requirement." [03:47] schestowitz "Rose, whether T1473/19 and T169/20 are truly divergent is a good question. Despite the catchwords of those cases spelling out very similar principles, I think that they do take divergent views on the applicability of Article 69 EPC to the assessment of novelty and inventive step.

See, for example, point 1.2.3 of T169/20:
"The present board finds itself in agreement with the reasoning in T 1646/12 (Reasons 2.1) t [03:47] schestowitz hat the provisions of Article 69(1) EPC do not apply to the interpretation of the claims for the purpose of assessing patentability but, in view of its explicit wording, to the determination of the "extent of the protection" of the patent monopoly or patent monopoly application, i.e. the object to be examined under Article 123(3) EPC or in infringement proceedings."

Compare and contrast that view to [03:47] schestowitz point 3.15 of T1473/19:
"In view of all of the above considerations, the Board holds that Article 69 EPC in conjunction with Article 1 of the Protocol can and should be relied on when determining the claimed subject-matter in proceedings before the EPO."

Nevertheless, it remains to be seen whether such a clear divergence of views between T1473/19 and T169/20 will persuade the EBA to admit questions conc [03:47] schestowitz erning the applicability of Article 69 EPC to the interpretation of the claims for all assessments of patentability." ● Jan 06 [06:40] *u-amarsh04 (~amarsh04@dc77dxzcmjmaq.irc) has joined #techbytes ● Jan 06 [07:06] *u-amarsh04 has quit (Quit: Konversation terminated!) [07:11] *u-amarsh04 (~amarsh04@dc77dxzcmjmaq.irc) has joined #techbytes ● Jan 06 [09:18] *u-amarsh04 has quit (Quit: Konversation terminated!) [09:19] *u-amarsh04 (~amarsh04@dc77dxzcmjmaq.irc) has joined #techbytes ● Jan 06 [10:44] *u-amarsh04 has quit (Quit: Konversation terminated!) [10:45] *u-amarsh04 (~amarsh04@dc77dxzcmjmaq.irc) has joined #techbytes [10:47] *u-amarsh04 has quit (Quit: Konversation terminated!) ● Jan 06 [11:08] *u-amarsh04 (~amarsh04@dc77dxzcmjmaq.irc) has joined #techbytes [11:33] *SaphirJD (~SaphirJD@8dh7gmy6ps5fy.irc) has joined #techbytes ● Jan 06 [12:58] *psydroid2 (~psydroid@u8ftxtfux23wk.irc) has joined #techbytes [12:59] *psydroid3 (~psydroid@u8ftxtfux23wk.irc) has joined #techbytes ● Jan 06 [14:18] *fury999i- (~fury999io@ziqinftqagu44.irc) has joined #techbytes ● Jan 06 [17:52] schestowitz http://ipkitten.blogspot.com/2024/01/will-we-have-referral-on-using.html?showComment=1704451823335#c3028551195972101112 [17:52] -TechBytesBot/#techbytes-ipkitten.blogspot.com | Will we have a referral on using the description for claim interpretation or is the Board of Appeal jumping the gun? (T 439/22) - The IPKat [17:52] schestowitz "Frances, whilst I agree that the case law is nuanced, it seems to me that the problem identified by the Board highlights an inherent contradiction between different lines of "established" EPO case law. That contradiction arises in situations where the EPO believes that the claims do not contain any ambiguous terms.

Under one line of case law, the patent monopoly can serve as its own dictionary. See the CLBA at II.A [17:52] schestowitz 6.3.3:
"In several decisions the boards have stated that terms used in patent monopoly documents should be given their normal meaning in the relevant art, unless the description gives them a special meaning (see e.g. T 1321/04, T 1089/11, T 25/15, T 1844/15). According to the established case law, the patent monopoly document may be its own dictionary (see e.g. T 311/93, T 523/00, T 1192/02, T 61/03, T 1321/04, T 1388/09, [17:52] schestowitz T 2480/11, T 1817/14; see also in this chapter II.A.6.3.5; as to the limits of this, see T 2221/10, summarised in this chapter II.A.6.3.1)."

However, under another line, the EPO will not interpret the claims by reference to any "unusual" definitions in the description. See the CLBA at II.A 6.3.1:
"A discrepancy between the claims and the description is not a valid reason to ignore the clear lin [17:52] schestowitz guistic structure of a claim and to interpret it differently (T 431/03) or to give a different meaning to a claim feature which in itself imparts a clear credible technical teaching to the skilled reader (T 1018/02, T 1395/07, T 1456/14, T 2769/17).

In T 2221/10 the board referred to established case law according to which the description can be used as the patent's "dictionary" to assess the correct meaning of ambi [17:52] schestowitz guous terms used in claims (see in this chapter II.A.6.3.3). However, if a term used in a claim has a clear technical meaning, the description cannot be used to interpret such a term in a different way. In case of a discrepancy between the claims and the description, the unambiguous claim wording must be interpreted as it would be understood by the person skilled in the art without the help of the description. See also T 2328/15 and T 1 [17:52] schestowitz 642/17."

Personally, I am not persuaded that the decision in T 2221/10 resolves the contradiction. Indeed, I believe that the contradiction is emphasised by the different approach that the EPO takes when assessing post-grant amendments for extension of the scope of protection. See again the CLBA at II.A 6.3.1:
"Any information in the description and/or drawings of a patent monopoly directly related to a [17:52] schestowitz feature of a claim and potentially restricting its interpretation could not be removed from the patent monopoly without infringing Art. 123(3) EPC"

To my mind, in proceedings before the EPO, the description is either relevant for interpreting a claim or it is not. The Boards have so far got away with drawing distinctions between claims that arguably contain ambiguous terms and those that do not. However, the introduc [17:52] schestowitz tion of an ultra-strict approach to adapting the description has, in my view, made it untenable for the Boards to continue to hold that line." ● Jan 06 [18:26] schestowitz
  • Linux Distros Evolution - January 2024 Update: Pop!_OS in Decline?
    At Boiling Steam we periodically review the trends of GNU/Linux distros used for gaming, thanks to the data on ProtonDB (and sometimes Steam hardware survey as well). Which we cant even ever know the true share of all GNU/Linux distro [18:26] schestowitz s used on the market, ProtonDB users are gamers and this gives us a good indicator of which distros are used to play games on Linux.
    • [18:26] schestowitz [18:26] schestowitz [18:26] schestowitz [18:26] -TechBytesBot/#techbytes-boilingsteam.com | Linux Distros Evolution - January 2024 Update: Pop!_OS in Decline? [18:48] schestowitz divorce? Really? [18:48] schestowitz Brandon Lobsta? [18:48] schestowitz not sure what that was [18:48] schestowitz nothing to do with me [18:52] schestowitz DaemonFC: wait [18:53] schestowitz rianne says Ontario Criminal set up a mastodon account called "Dovirced" [18:53] schestowitz then started following her [18:53] schestowitz so the criminal engages in further stalking ● Jan 06 [19:47] schestowitz
  • Linux hits four per cent of the desktop market
    [19:47] schestowitz
    [19:47] schestowitz

    The open saucy operating system Linux managed to take four per cent of the desktop market in December. [19:47] schestowitz Linux users, who have been predicting that their favourite OS will replace Windows any year now, might have something to celebrate. [19:47] schestowitz According to Statcounter, which should be taken with a pinch of salt of course like any sampling, the Linux share on the desktop hit nearly four per cent in December 2023. Last month was a record too and a clear trend over time, as going back a couple of years, it was rarely coming close to two per cent but now it's repeatedly nearing four per cent so it's quite a good sign. [19:47] schestowitz

    [19:47] schestowitz
    • [19:47] -TechBytesBot/#techbytes-www.fudzilla.com | Linux hits four per cent of the desktop market ● Jan 06 [20:00] *psydroid3 has quit (Quit: KVIrc 5.0.0 Aria http://www.kvirc.net/) [20:01] *psydroid2 has quit (Quit: KVIrc 5.0.0 Aria http://www.kvirc.net/) ● Jan 06 [22:45] *DaRiX has quit (Ping timeout: 120 seconds) [22:45] *DaRiX has quit (Ping timeout: 120 seconds) [22:59] *DaRiX (~darix@freenode-2ue.6ih.pu7h8v.IP) has joined #techbytes [22:59] *DaRiX (~darix@freenode-2ue.6ih.pu7h8v.IP) has joined #techbytes