●● IRC: #techbytes @ Techrights IRC Network: Monday, February 06, 2023 ●● ● Feb 06 [01:28] *Noisytoot has quit (Ping timeout: 2m30s) [01:31] *Noisytoot (~noisytoot@tkbibjhmbkvb8.irc) has joined #techbytes ● Feb 06 [06:14] *web-60 (~web-60@freenode-eam.tce.edi4v1.IP) has joined #techbytes [06:22] *web-60 has quit (Connection closed) ● Feb 06 [08:12] *geert (~geert@t4z4bhg92y992.irc) has joined #techbytes ● Feb 06 [10:53] schestowitz[TR2] Just a friendly reminder to join our scheduled online information session on the topic of performance / appraisal report: TODAY, February 2nd, 11:30 12:15. [10:53] schestowitz[TR2] Click here to join the meeting - Add to your calendar [1] [10:53] schestowitz[TR2] Agenda: [10:53] schestowitz[TR2] Presentation (15 min); [10:53] schestowitz[TR2] Q&A (30 min) [10:53] schestowitz[TR2] For colleagues in the Hague, we invite you to join us at the entrance of the Hinge Canteen at 12:20 after the session to exchange over lunch. [10:53] schestowitz[TR2] In the meantime, it is advised to: [10:53] schestowitz[TR2] Ensure that your performance report 2022 in successfactors: [10:53] schestowitz[TR2] includes all contributions you made and challenges you faced; [10:53] schestowitz[TR2] does not include vocabulary such as unsatisfactory, unacceptable, insufficient, [10:53] schestowitz[TR2] If you are facing challenges to your professional life in 2023, make sure you inform your manager, also in writing; ● Feb 06 [11:24] schestowitz[TR2] https://patentblog.kluweriplaw.com/2023/02/03/my-main-regret-is-that-the-unitary-patent-package-will-not-cover-all-european-countries/#comments [11:24] -TechBytesBot/#techbytes-patentblog.kluweriplaw.com | My main regret is that the Unitary Patent Package will not cover all European countries - Kluwer Patent Blog [11:24] schestowitz[TR2] The current language regime is as open as possible: in invalidity actions you cannot even use the three EPO languages, which you can use in oppositions and appeals at the EPO! [11:24] schestowitz[TR2] The UPC language regime seems to be tailor-made for French and German firms. [11:24] schestowitz[TR2] REPLY [11:24] schestowitz[TR2] Brian Cronin [11:24] schestowitz[TR2] FEBRUARY 3, 2023 AT 4:25 PM [11:24] schestowitz[TR2] I dont see any particular reason why there should not be a simple legal adjustment that would allow patentees with validated European patents in the UK, Switzerland, Noway, Spain etc to OPTIN to jurisdiction of the UPC. As far as I can see, such Opting-IN to the UPC would present numerous advantages. [11:24] schestowitz[TR2] REPLY [11:24] schestowitz[TR2] Sharing concerns [11:24] schestowitz[TR2] FEBRUARY 3, 2023 AT 5:09 PM [11:24] schestowitz[TR2] Rather, it was about the EPOs language regime, as Spain has never accepted that Spanish is not one of the official languages of the EPO. [11:24] schestowitz[TR2] ? [11:24] schestowitz[TR2] To my best knowledge, Spain is an EPC state and we such accepts that the language of proceedings in proceedings before the EPO is one of only three, but not including Spanish. [11:24] schestowitz[TR2] English is also a difficult language: ask any person that is not well informed what a unified court for European patents could mean: nobody would guess that that only cover 13 states at the start and that it will vary over time let alone that someone could guess which those states are [11:24] schestowitz[TR2] REPLY [11:24] schestowitz[TR2] Jan Verbist [11:24] schestowitz[TR2] FEBRUARY 3, 2023 AT 5:42 PM [11:24] schestowitz[TR2] The Unified Patent Court will start its operations court on the 1st of June 2023: see you in court then! [11:24] schestowitz[TR2] There is a chance that the declaration of entry into force might be challenged in Court as soon as the 1st of March. [11:24] schestowitz[TR2] REPLY [11:24] schestowitz[TR2] DXThomas [11:24] schestowitz[TR2] FEBRUARY 4, 2023 AT 6:55 PM [11:24] schestowitz[TR2] Me Vrons plea for the UPC deserves some comments Part 1 [11:24] schestowitz[TR2] Brief historical review Is the UP/UPC an absolute necessity? [11:24] schestowitz[TR2] Me Vron starts the history of the UPC around 2007. It has a much older history. [11:24] schestowitz[TR2] From the early days of the EU, or European Community as it was called at the time, patents were considered as a possible hindrance to the free movement of goods within the EC. The idea of regulating the patent system at Community level emerged quite early. In the 1960s there were no less than four drafts for a European Patent Convention. [11:24] schestowitz[TR2] Those attempts faced a series of problems. First, they were all closed conventions, i.e. only open to EC contracting states. Second, the language problem was important as an official act of the community has to be published in all the official languages of the member states in order to take effect. Third, the fear of forum shopping was also seen as big threat by patent holders. At the time the UK already played a role as it was nev [11:24] schestowitz[TR2] er in favour of the Community Patent. [11:24] schestowitz[TR2] On the other hand the patent have not become a hindrance to free trade in the EC or the EU thanks an important decision of the CJEU: the doctrine of exhaustion of rights. [11:24] schestowitz[TR2] It is the upcoming of the PCT which pushed some member states to revive the negotiations on an EC/EU patent. They feared being inundated by unexamined patents coming in through the PCT route which at the time consisted mainly of a search and publication as provided for in Chapter 1 of the PCT. There are still some PCT/EPC member states refusing the PCT direct route. [11:24] schestowitz[TR2] The solution to the problems faced by the EC/EU patent was to divide the procedure in two parts. One convention would deal with search/examination/grant/opposition and a second with the exploitation of the so granted right. [11:24] schestowitz[TR2] The first convention was the EPC as we know it today. The EPC is an open convention and the procedure is limited to three official languages GB, DE, FR. [11:24] schestowitz[TR2] Following the signature of the EPC, negotiations for a common use of the title granted by the EPO continued and a conference of a Common Patent was held in Luxemburg in 1975. [11:24] schestowitz[TR2] In principle, the conference should have led to a Community patent with unitary effect in all EU Member States. [11:24] schestowitz[TR2] The Convention was never signed and/or ratified as two problems remained: forum shopping and languages [11:24] schestowitz[TR2] Special Bodies should also be set up within the EPO, see Art 142-149 EPC and a Select Committee of the EPO Administrative Council should be created. Those are now active with the upcoming UP/UPC. [11:24] schestowitz[TR2] In the meantime, the Contracting States of the EPO set up a Working Party on Litigation with the aim of creating a European Patent Litigation Agreement (EPLA). This was again an open convention, which was not limited to EU contracting states. [11:24] schestowitz[TR2] This initiative ended with two proposals [11:24] schestowitz[TR2] A proposal to set up a European Patent Court (comprising a Court of First [11:24] schestowitz[TR2] Instance, with a Central Division and a number of Regional Divisions, as well as a Court of Appeal) with jurisdiction to deal with infringement and revocation actions concerning European patents. Do you note the resemblance? [11:24] schestowitz[TR2] A proposal to entrust the European Patent Court of Appeal (acting as [11:24] schestowitz[TR2] Facultative Advisory Council) with the task of delivering, upon request, nonbinding opinions on any point of law concerning European or harmonised national patent law to national courts trying infringement and validity actions. [11:24] schestowitz[TR2] We all know that opinion C 1/09 brought an end to those efforts. And from then on the UP/UPC system as we know it presently came up. [11:24] schestowitz[TR2] It remains that for more than 40 years there was no problem with patents within the EU due to the doctrine of exhaustion of rights. On the other hand the number of validations of granted European patents was around 3-5 (UPC states), at best 7(UPC + EPC states). [11:24] schestowitz[TR2] It raises thus the question of the necessity of a system like the UP/UPC. This is the more so since the number of true supra-national litigations is rather low. An economic study justifying the existence of the UP/UPC has never been carried out. It is a mere allegation of the supporters of the UP/UPC system that it would be beneficial to European Industry in general and European SMEs in particular. [11:24] schestowitz[TR2] When listening to some conferences on the UPC at the end of the year, one could get the feeling that the UP/UPC is the 7th world marvel and that it should always have been like it will be with the UPC (cf. Business Europe). This is forgetting that the idea is an old one and the EU has lived happily without such a system. Wanting to imitate the US might not be the most convincing reason. [11:24] schestowitz[TR2] REPLY [11:24] schestowitz[TR2] DXThomas [11:24] schestowitz[TR2] FEBRUARY 4, 2023 AT 6:58 PM [11:24] schestowitz[TR2] Me Vrons plea for the UPC deserves some comments Part 2 [11:24] schestowitz[TR2] The opening of the UPC to non-EU contracting states [11:24] schestowitz[TR2] This is a no go in view of the opinion C 1/09. Supporters of the UP/UPC have written lots of pleas why for instance the UK could stay in the system. Brexit put an end to these hopes. [11:24] schestowitz[TR2] It is also not sure that the authorities in, for instance, UK, Switzerland and Norway, would agree with such an Opt-In possibility. As they are not EU members, it would also pose a lot of problems with respect of state liability etc. [11:24] schestowitz[TR2] In any case, it would need a renegotiation of the UPCA. When one sees that even the consequences of Brexit have not lead to a renegotiation of the UPC, an opt-in appears no more as wishful thinking. [11:24] schestowitz[TR2] Languages [11:24] schestowitz[TR2] It all depends what one understands under The current language regime is as open as possible. [11:24] schestowitz[TR2] Whether the language regime during the transitional period is in conformity with the London Protocol on translations remains to be seen. [11:24] schestowitz[TR2] It is only before the Central division that the language of proceedings will be that in which the patent has been granted. Before a local division it is not necessarily the case and it could well be the local language. [11:24] schestowitz[TR2] Me Vron is alluding to Rule 14.2(c), which is called the English limited clause. It allows for litigation in an EPO language, especially English, while at the same time allowing for issuing the judgment in the national language. [11:24] schestowitz[TR2] When looking at the language regimen of the UPC there is only one conclusion: it looks like a nightmare as it is very complicated. [11:24] schestowitz[TR2] One thing is nevertheless clear: if simultaneous translation is needed, the costs of simultaneous translation will have to be borne by the losing party! The UPC will only pay the costs for simultaneous interpretation needed by the panel. The proponents of the UP/UPC have remained very silent on this point. [11:24] schestowitz[TR2] The challenges [11:24] schestowitz[TR2] It is possible to follow Me Vron when he says: whatever may be challenged in EU courts or constitutional courts will be challenged. [11:24] schestowitz[TR2] I would however not be so confident as he is with the result. [11:24] schestowitz[TR2] The declaration of the Depository that the PPA has entered into force will be challenged first. [11:24] schestowitz[TR2] The non-adaptation of the UPCA to the consequences of Brexit is a second line of challenge. [11:24] schestowitz[TR2] I still have not heard any sound legal basis for the provisional allocation of the IPC classes meant to be dealt with in London to Paris and/or Munich. This also applies to the later allocation of those duties to another city. [11:24] schestowitz[TR2] The part-time technical judges will be challenged as well. [11:24] schestowitz[TR2] It would be interesting to know whether Me Vron endorses the solution which has been proposed: amend the UPCA under Art 87(2) at 8.00 on the day the UPC opens its doors at 9.00. [11:24] schestowitz[TR2] https://patentblog.kluweriplaw.com/2023/02/02/epo-consultation-on-epc-and-pct-epo-guidelines/#comments [11:25] schestowitz[TR2] "Augustin Leblanc [11:25] schestowitz[TR2] FEBRUARY 2, 2023 AT 9:05 AM [11:25] schestowitz[TR2] SACEPO is BusinessEurope, large patent applicants. [11:25] schestowitz[TR2] European citizens should not be forced to master foreign languages. You cannot force the languages when you participate in a public consultation organized by the European Commission. [11:25] schestowitz[TR2] REPLY [11:25] schestowitz[TR2] Concerned observer [11:25] schestowitz[TR2] FEBRUARY 2, 2023 AT 11:24 AM [11:25] schestowitz[TR2] It seems that the EPO still has it in for claim-like clauses in the description. For situations where such clauses are consistent with the claims, can anyone explain to me which provision(s) of the EPC require the removal of such clauses? [11:25] schestowitz[TR2] Looking at the amendments to F-IV, 4.4, it seems that the EPO no longer wishes to (attempt to) justify deletion of such in-scope, claim-like clauses by pointing to Rule 48(1)(c) EPC (The European patent application shall not contain (c) any statement or other matter obviously irrelevant or unnecessary under the circumstances). This is no doubt because a claim-like clause that describes an in-scope embodiment can hardly sa [11:25] schestowitz[TR2] id to be obviously irrelevant or unnecessary. Indeed, there are circumstances where retaining such a claim-like clause may be ESSENTIAL, for example where such a clause represents the sole disclosure in the application as filed of the subject matter of the claims. [11:25] schestowitz[TR2] However, I am struggling to make sense of what now remains as the EPOs justification for deleting claim-like clauses: [11:25] schestowitz[TR2] claim-like clauses must also be deleted or amended to avoid claim-like language prior to grant since they otherwise may lead to unclarity on the subject-matter for which protection is sought. [11:25] schestowitz[TR2] Unless I have badly misunderstood Article 84 EPC, I thought that it is only the claims (and NOT the description) that need satisfy the clarity requirement. Also, is it not the case that the claims need to be clear on their own? And in which universe does an IN-SCOPE, claim-like clause cast doubt upon the scope of the claims? [11:25] schestowitz[TR2] I have yet to meet a person skilled in the art who has confused claim-like clauses for the claims proper, or been confused by the presence of both in a patent specification. If the EPO is going to base their practice upon the purported existence of such individuals, should they not first take steps to prove that they actually exist? [11:25] schestowitz[TR2] Whilst many of us have long been puzzled by the EPOs rather strained logic on description amendments, their approach to claim-like clauses is bordering on the ridiculous. [11:25] schestowitz[TR2] REPLY [11:25] schestowitz[TR2] Patent robot [11:25] schestowitz[TR2] FEBRUARY 2, 2023 AT 4:53 PM [11:25] schestowitz[TR2] I fully agree with your comments! [11:25] schestowitz[TR2] Moreover the same EPO Guidelines F-IV, 6.6 suggest to copy the claims (usually by changing claim to example or embodiment) into the description when the description does not fully support the claim: Where certain subject-matter is clearly disclosed in a claim of the application as filed, but is not mentioned anywhere in the description, it is permissible to amend the description so that it includes this subject [11:25] schestowitz[TR2] -matter. [11:25] schestowitz[TR2] Is there any way for amending the description to include the subject-matter of the claims without religiously copying the claims into the description and without violating Art. 123(2) EPC? [11:25] schestowitz[TR2] REPLY [11:25] schestowitz[TR2] law sniffer [11:25] schestowitz[TR2] FEBRUARY 3, 2023 AT 10:02 AM [11:25] schestowitz[TR2] I agree, the much flaunted high-quality of the EPO examiners is mainly reduced to very formal objections like the one you mentioned, or on adaptation of the description, not existing issues with clarity or not supported amendments, etc. made just to upset applicants with little effort and without any real substance behind [11:25] schestowitz[TR2] REPLY [11:25] schestowitz[TR2] Both sides [11:25] schestowitz[TR2] FEBRUARY 2, 2023 AT 7:01 PM [11:25] schestowitz[TR2] The passage in the guidelines about the removal of claim-like clauses relates to the removal of subject matter which is not claimed or no longer falls under the claims. Naturally, there can be no question that claim-like clauses that correspond to the claims do not need to be deleted. On the contrary, one should not forget that Art. 84 is not just about clarity but also about support, i.e. support of the claims in the d [11:25] schestowitz[TR2] escription. So the wording of the claims should be in the description as well. I agree however that the wording in the guidelines may be misleading if read out of context with the EPC. [11:25] schestowitz[TR2] REPLY [11:25] schestowitz[TR2] Concerned observer [11:25] schestowitz[TR2] FEBRUARY 3, 2023 AT 4:47 PM [11:25] schestowitz[TR2] I would like to think that no examiner would ever insist upon deletion of clauses that are in-scope. Nevertheless, experience teaches me that at least some examiners read F-IV, 4.4 of the GL as requiring deletion / amendment of ALL claim-like clauses, INCLUDING those that are in-scope. [11:25] schestowitz[TR2] REPLY [11:25] schestowitz[TR2] No need for claim-like clauses [11:25] schestowitz[TR2] FEBRUARY 2, 2023 AT 7:04 PM [11:25] schestowitz[TR2] Dear Concerned Observer, [11:25] schestowitz[TR2] If the claim-like clause is such that it represents the sole disclosure in the application as filed of the subject matter of the claims, then there is something wrong with your presentation of the invention in the description. [11:25] schestowitz[TR2] If necessity arises, there is no harm under Art 123(2) to incorporate the essential teaching of a claim-like clause into the actual description. [11:25] schestowitz[TR2] To my knowledge, claim-like clauses have their origin on the other side of the Atlantic. [11:25] schestowitz[TR2] They might be tolerated there, but this is first not a reason for accepting them on this side of the Atlantic. [11:25] schestowitz[TR2] The legal basis for not accepting claim-like clauses is to be found in R 42 which defines the content of the description and in R 43 which defines the form and content of claims. [11:25] schestowitz[TR2] I fail to see any reference to clause-like claims in the EPC. [11:25] schestowitz[TR2] Is this not a good reason not to accept them? [11:25] schestowitz[TR2] As the description has to be supported by the claims, cf. Art 84, in which respect do claim-like clauses support the actual claims? [11:25] schestowitz[TR2] If for example an independent claim has been limited by incorporating features from a dependent claim or from the description what is the purpose of keeping the originally filed claims as claim-like clauses. I never heard any sound reason for it. [11:25] schestowitz[TR2] Even in case of a divisional application they are not useful. [11:25] schestowitz[TR2] The EPO is right in requiring deletion of claim-like clauses. [11:25] schestowitz[TR2] It is too easy to systematically mix clarity as such, which is one of the criteria of Art 84, from support of the claim, which is a further and distinct requirement of Art 84. [11:25] schestowitz[TR2] With due respect, I would thus allow myself to conclude that you have indeed badly misunderstood Article 84 EPC in its totality. [11:25] schestowitz[TR2] REPLY [11:25] schestowitz[TR2] No need for claim-like clauses [11:25] schestowitz[TR2] FEBRUARY 2, 2023 AT 8:08 PM [11:25] schestowitz[TR2] Dear Patent Robot, [11:25] schestowitz[TR2] I would like to observe that F-IV, 6.6 deals prima facie with dependent claims. [11:25] schestowitz[TR2] It is a very old practice to amend the description so that it includes this subject-matter. Indeed it does not offend Art 123(2) to transfer the teaching into the description. [11:25] schestowitz[TR2] This is however not a justification for claim-like clauses. I also refer to my reply to Concerned Observer and R 42 and 43. [11:25] schestowitz[TR2] REPLY [11:25] schestowitz[TR2] Patent robot [11:25] schestowitz[TR2] FEBRUARY 3, 2023 AT 12:43 PM [11:25] schestowitz[TR2] Thank you, so could you please explain exactly how can I transfer the teaching of dependent claims into the description without using claim-like clauses (embodiment instead of claim) and without violating Art. 123(2)? [11:25] schestowitz[TR2] To make things simple, lets assume that the decription does not contain anything about the dependent claims. [11:25] schestowitz[TR2] P.S.: I am European, not American [11:25] schestowitz[TR2] REPLY [11:25] schestowitz[TR2] No need for claim-like clauses [11:25] schestowitz[TR2] FEBRUARY 5, 2023 AT 10:31 AM [11:25] schestowitz[TR2] Dear Patent Robot, [11:25] schestowitz[TR2] If you have filed the claims at the same time as the description and the drawings, then there is no problem as clearly explained in F-IV, 6.6, which I repeat here: [11:25] schestowitz[TR2] Where certain subject-matter [11:25] schestowitz[TR2] is clearly disclosed in a claim of the application as filed, [11:25] schestowitz[TR2] but is not mentioned anywhere in the description, [11:25] schestowitz[TR2] it is permissible to amend the description so that it includes this subject-matter. [11:25] schestowitz[TR2] Where the claim is dependent, [11:25] schestowitz[TR2] it may suffice if it is mentioned in the description that the claim sets out a particular embodiment of the invention. [11:25] schestowitz[TR2] F-IV, 6.6 makes it thus abundantly clear that the recourse to clam-like clauses is superfluous. [11:25] schestowitz[TR2] If you have not filed your claims at at the same time as the description and the drawings, then your claims are not part of the original disclosure and have to be vetted under Art 123(2) with resoect to the originally filed description and drawings. In such a situation claim-like clauses are of no help whatsoever as they are prima facie superfluous. [11:25] schestowitz[TR2] PS I am European too. My comment was not aimed at any specific nationality or origin of an applicant. It simply states that claim-like clauses have, to my knowledge, found their origin in the US. [11:25] schestowitz[TR2] REPLY [11:25] schestowitz[TR2] Please chose the right target [11:25] schestowitz[TR2] FEBRUARY 3, 2023 AT 6:46 PM [11:25] schestowitz[TR2] Dear law sniffer [11:25] schestowitz[TR2] It is a bit easy to bash on examiners. Have you ever asked yourself why examiners are coming up with very formal objections, allegedly not existing issues with clarity or not supported amendments? [11:25] schestowitz[TR2] While it is understandable that you can feel upset with such a result, have you ever made an effort and complained about the ever increasing productivity/production targets imposed year after year on examiners? [11:25] schestowitz[TR2] Quality at the EPO resumes itself in timeliness. The plan has to be achieved as the budget requires it. If an examiner does not achieve its target he will eventually be dismissed for incompetence. This combined with 5 years contracts and a reduced training time for newcomers going, there is no surprise that examiners simply try to achieve the target. Examiners are also more and more isolated as the upper management does not wish to [11:25] schestowitz[TR2] see all staff turning up every day in the buildings. But the whole action is called Bring teams together! [11:25] schestowitz[TR2] The quest for plan achievement reminds of Eastern Europe. There also the truth was in the achievement of the plan. If the plan required 100.000 coffee grinders, they were all on the shelves at the end of the year. Whether the coffee grinders were actually capable of grinding coffee was of no importance. In Eastern Europe at the time, consumers were not able to complain. [11:25] schestowitz[TR2] In Western Europe it has never been like this. Consumer/clients could complain. However, as long as the clients of the EPO do not voice proper concerns about the quality of what is presently delivered, the upper management will consider that everything is wonderful and there nothing to worry about. [11:25] schestowitz[TR2] REPLY [11:25] schestowitz[TR2] law sniffer [11:25] schestowitz[TR2] FEBRUARY 4, 2023 AT 2:38 PM [11:25] schestowitz[TR2] @Please chose the right target [11:25] schestowitz[TR2] from outside I dont want or have to bother about the reasons behind, we all have our own problems, but if this is the attitude of many examiners (not all!) I can imagine how difficult must be for the upper layers and in any case I am pleading simply for a shifted focus of the objections or for not doing them, this being rather a gain of your productivity! And avoiding useless argumentations would raise our own too! And be reass [11:25] schestowitz[TR2] ured, pressure and yield of performance is higher where I am than where you are, so it cannot be used as an excuse (by anyone!) [11:25] schestowitz[TR2] " [11:26] schestowitz[TR2] https://patentblog.kluweriplaw.com/2023/01/31/what-will-the-irish-population-vote-on-in-the-upc-referendum/#comments [11:27] schestowitz[TR2] "Dear Mr Montana, [11:27] schestowitz[TR2] Before you come to the question Irish citizens might have to answer in a ratification referendum of the UPCA, you raise some highly relevant points regarding the respect of the rule of law and of the parliaments having already ratified the UPCA. [11:27] schestowitz[TR2] According to a staunch supporter of the UPC and published earlier on this blog under the following link: [11:27] schestowitz[TR2] https://patentblog.kluweriplaw.com/2022/12/05/start-unified-patent-court-postponed-due-to-it-issues/ [11:27] schestowitz[TR2] the Administrative Committee of the UPC will amend the UPCA according to Art 87(2) at 8.00 on the day the UPC will open its doors at 9.00. The damage inflicted to the UPCA by the Brexit will therewith be healed. Life can be so simple. [11:27] schestowitz[TR2] I do however see some minor problems: [11:27] schestowitz[TR2] Art 87(2) is not mentioned in the PPA, whereby Art 3(1) PPA still mentions expressis verbis the UK, and Art 7(2) UPCA still mentions expressis verbis London. Art 18(1) PPI still mentions expressis verbis the UK. [11:27] schestowitz[TR2] Art 87(2) UPCA has a different function than that thought by the proponents of the UPC, but this is no more than a trivial nuisance which can easily be ignored. [11:27] schestowitz[TR2] The UPC does not contain an exit clause and the VCLT has some provisions in this situation which as well cannot be ignored. [11:27] schestowitz[TR2] In view of the clear wording of the PPA, PPI and of the UPCA, there is not much to interpret under the VCLT [11:27] schestowitz[TR2] Note: for the same staunch supporter of the UPC it is possible to ignore the VCLT, so life is indeed easy. Furthermore, by ratifying the UPCA, the parliaments have given the AC Committee of the UPC any power it needs for amending the UPCA at will. [11:27] schestowitz[TR2] A more detailed argumentation on those points is to be found under: [11:27] schestowitz[TR2] https://blog.ipappify.de/is-after-brexit-the-upc-agreement-compatible-with-eu-law/ [11:27] schestowitz[TR2] One can turn the question around as much as one desires, the only correct way to heal the damages inflicted by the Brexit would be to renegotiate the points which are directly linked to the mention of the UK in the UPCA the PPA and the PPI. [11:27] schestowitz[TR2] A proper amendment of the UPCA and the corresponding protocols has never been envisaged by the proponents of the UPC, as it could have meant an end to their hopes. With all the time and money invested, there might have been no ROI. There will be clearly no ROI for the British legal profession. There will be a small ROI for some British firms of qualified representatives. [11:27] schestowitz[TR2] The more the time goes, the more it is manifest that the UP/UPC system does not have for aim to foster European Industry in general and European SMEs in particular, but in particular the vested interests of big internationally active litigation firms. [11:27] schestowitz[TR2] The only answer of the proponents of the UPC is to ignore the rule of law and the parliaments by trying to put European and national institutions in front of a fat accompli. The hope is that no court will dare say anything against the UPC, be it the CJEU or a national court. In view of all the problems which have been blatantly ignored, I do however see difficulties in enforcing decisions of the UPC. [11:27] schestowitz[TR2] I can thus only but agree that, should Irish voters be called to ratify the UPCA, they will be buying a pig in a poke." [11:27] schestowitz[TR2] https://patentblog.kluweriplaw.com/2023/01/30/upc-sunrise-functionalities-practice-period-announced/#comments [11:27] schestowitz[TR2] "A whole 2 weeks to test a completely new system? Well, the team behind the UPC is now really spoiling us! [11:27] schestowitz[TR2] On a more serious note, it seems that the new test environment may be different to that previously provided in December 2022, in that checks for document type and document signature will now be conducted by the system. This means that the previous test environment may not have been quite what was advertised (ie having all functionalities that would be present during the sunrise period). [11:27] schestowitz[TR2] So does that mean that there may be further (as yet unannounced) differences when the sunrise period gets underway? Or is the Feb 2023 test environment the real deal? [11:27] schestowitz[TR2] Oh, and if we sign up for an account on the new test environment, will this lead to problems creating an account on the sunrise system proper? Looking at CIPAs discussion forum on the UPC, it seems that various people could not access the Dec 2022 test environment until the UPCs IT team fixed some problems with their systems (relating to accounts previously opened on earlier versions of the CMS). [11:27] schestowitz[TR2] A Nanny Mouse in IP [11:27] schestowitz[TR2] JANUARY 31, 2023 AT 5:55 PM [11:27] schestowitz[TR2] Got a card, seems acceptable, fingers crossed." [11:27] -TechBytesBot/#techbytes-patentblog.kluweriplaw.com | EPO consultation on EPC and PCT-EPO Guidelines - Kluwer Patent Blog [11:27] schestowitz[TR2] https://patentblog.kluweriplaw.com/2023/01/31/a-new-european-patent-landscape-1-the-bumpy-road-to-the-unitary-patent-system/#comments [11:29] schestowitz[TR2] "Great! I look forward to filing my first revocation action at the central division of London! Could you please give me the address? [11:29] schestowitz[TR2] Andre Frans [11:29] schestowitz[TR2] FEBRUARY 1, 2023 AT 10:53 AM [11:29] schestowitz[TR2] As Article 89 of the UPCA says, the signature of the UK is still required for its entry into force. [11:29] schestowitz[TR2] Any other reading should be challenged in court. [11:29] schestowitz[TR2] Martina Claessens [11:29] schestowitz[TR2] FEBRUARY 1, 2023 AT 11:56 AM [11:29] schestowitz[TR2] In June 2021 the FCC rejected two applications for an interim injunction against German UPCA ratification, and made clear the main proceedings had no chance whatsoever to be successful. [11:29] schestowitz[TR2] When Karlsruhe denied escalading violation of EU law to the CJEU (notably TEU 19.1, TFEU 267), using a dubious argument of we only do it when fundamental rights are involved. [11:29] schestowitz[TR2] Its called a political decision. [11:29] schestowitz[TR2] DXThomas [11:29] schestowitz[TR2] FEBRUARY 1, 2023 AT 7:08 PM [11:29] schestowitz[TR2] Dear Mrs Claessens, [11:29] schestowitz[TR2] The decision of the FCC rejecting the claims about the independence of the BA is as well a political decision. [11:29] schestowitz[TR2] In view of the political context, it could, at a pinch, be understandable the FCC did not want to open Pandoras Box and declare the UPCA or the appeal system of the EPO illegal. [11:29] schestowitz[TR2] As far as the rejection of the complaints for the UPC is concerned, some important considerations in the first decision negating the ratification were not found in the second decision. [11:29] schestowitz[TR2] As far as the complaints about the EPO appeal system are concerned, only one complaint was filed after 2016. What would the FCC have said without the reform of 2016? For all interested people it was manifest that the reform had only for aim to increase the perception of independence of the boards. [11:29] schestowitz[TR2] With due respect to the importance and function of the FCC, I would expect a bit more argumentation as to the substance. [11:29] schestowitz[TR2] By claiming that in the complaints against the UPCA and the EPO appeal system, the respective requests were not sufficiently substantiated and hence had to be rejected, the FCC makes its life a bit too easy. [11:29] schestowitz[TR2] Denis [11:29] schestowitz[TR2] FEBRUARY 3, 2023 AT 9:49 AM [11:29] schestowitz[TR2] Well, there are also other reasonable opinions. E.g. the view in this IAM article is that the FCC decision on the EPO needs to be understood in view of the UPC sunrise: [11:29] schestowitz[TR2] https://www.iam-media.com/article/german-court-establishes-legal-certainty-appeals-against-epo-decisions [11:29] schestowitz[TR2] To the extent that the complaint was dismissed as inadmissible, the courts decision is unsurprising [11:29] schestowitz[TR2] [11:29] schestowitz[TR2] the court took the opportunity to define some general principles for inter-governmental courts, the minimum standards for legal protection and the independence of judicial bodies. The court seems to continue to oblige German legislators to ensure that supranational or inter-governmental courts comply with rule-of-law principles. [11:29] schestowitz[TR2] Such a detailed decision on these merits was unnecessary, since the complaint was rejected as inadmissible. This indicates that these standards should be established with a view to the Unified Patent Court [11:29] schestowitz[TR2] DXThomas [11:29] schestowitz[TR2] FEBRUARY 3, 2023 AT 11:53 AM [11:29] schestowitz[TR2] Dear Denis, [11:29] schestowitz[TR2] Thanks for drawing the attention on what has been published in IAM. [11:29] schestowitz[TR2] To be honest it paraphrases the FCC decision and does not bring one more element forward, but the wink with a barge pole for the UPC. This is indeed unsurprising coming from IAM. [11:29] schestowitz[TR2] As far as the UPC is concerned, the last word has not yet been said. It is difficult to reconcile the way supporters of the UPC want to fiddle with the UPC, e.g. revision at 8.00 the day the UPC opens at 9, and the rule of law. [11:29] schestowitz[TR2] Just look at the post of Mr Montana on this blog. [11:29] schestowitz[TR2] https://patentblog.kluweriplaw.com/2023/01/31/what-will-the-irish-population-vote-on-in-the-upc-referendum/ [11:29] schestowitz[TR2] It does however not alter the fact that it took the FCC more than twelve years to deal with the oldest complaint. [11:29] schestowitz[TR2] I can agree that the decision is unsurprising, but it fails to convince. The reference in the FCCs decision to EU institutions is somehow surprising as the EPO is anything but a EU institution. [11:29] schestowitz[TR2] That the FCC does not want to be entangled in what are actually foreign policy matters is understandable, but does not exonerate the FCC to take a decision in a reasonable time. [11:29] schestowitz[TR2] One fundamental question has not been answered: why did it take 6 years for the FCC to hide behind the reform of 2006. This reform was there to increase the perception of the independence of the boards and not their real independence. [11:29] schestowitz[TR2] The proposals of the EPO in 2004/2005 would have brought a real independence to the boards, albeit at the price of a further revision of the EPC. Whether it was wise to launch such a proposal a few years after the Diplomatic Conference which had not yet been ratified and entered into force remains open. [11:29] schestowitz[TR2] Denis [11:29] schestowitz[TR2] FEBRUARY 4, 2023 AT 2:17 PM [11:29] schestowitz[TR2] Dear DX Thomas, [11:29] schestowitz[TR2] I do not know why it took so long to decide. But I would not be surprised if the EPO Board of Appeal reform was the result of these complaints triggered by informal information exchange between the German constitutional bodies including the FCC and the FCC was waiting for its completion (as this is an international matter it cannot be handled in Germany alone by simply invalidating some acts and needed special treatment therefore). [11:29] schestowitz[TR2] Then the complaints became inadmissible after the reform and the FCC gave everybody enough time to adjust to the changed legal situation. In Germany, we are used to expect many years for such kind of FCC decisions given the huge number of constitutional complaints filed each year and the rather low level of importance for the public of this decision (not to mention the legal complexity and the goal of the FCC to reach an unanimous [11:29] schestowitz[TR2] ly decision). And here the clock was simply reset after the EPO reform, which is kind of obvious. [11:29] schestowitz[TR2] Hence, I find the decision quite convincing and in line with the established FCC case law: Every German lawyer needs to learn that the FCC is no super-revision instance quite early in the legal studies. Especially, as it is no such instance, you cannot expect the same speed for a decision as in the normal legal system. [11:29] schestowitz[TR2] I am also not biased regarding the author of the IAM article. The article fulfills typical German legal scholar standards and comes from someone with some academic background on legal arbitration (and no IP law background), which matches well with that kind of internal treaty matter. [11:29] schestowitz[TR2] Concerned observer [11:29] schestowitz[TR2] FEBRUARY 3, 2023 AT 4:53 PM [11:29] schestowitz[TR2] The court seems to continue to oblige German legislators to ensure that supranational or inter-governmental courts comply with rule-of-law principles. [11:29] schestowitz[TR2] This assumes that the German legislators will do their job (and that, to date, they have done their job). I see no evidence of this. For example, what are German legislators doing to ensure that the EPO abides by rulings of the ILO AT? Or to otherwise ensure that the EPO respects fundamental rights enshrined in the ECHR and EU Charter of Fundamental Rights? [11:29] schestowitz[TR2] That the FCC decided to pass the buck is clear. Whether, from a rule of law perspective, they should have done so is another question entirely. [11:29] schestowitz[TR2] Stop misusing the EPO [11:29] schestowitz[TR2] FEBRUARY 5, 2023 AT 2:03 AM [11:29] schestowitz[TR2] There is one simple way: that the AC does carry out its role of control organ and stops rubber stamping what comes from and the 10th floor. [11:29] schestowitz[TR2] This is not just something for German authorities but for the authorities of all member states sitting in the AC. [11:29] schestowitz[TR2] If they continue milking the cow as they presently do, the cow might stop giving milk! [11:29] schestowitz[TR2] Immunity should not be equated with impunity. [11:29] schestowitz[TR2] DXThomas [11:29] schestowitz[TR2] FEBRUARY 1, 2023 AT 3:17 PM [11:29] schestowitz[TR2] Dear Patent Robot, [11:29] schestowitz[TR2] You seem to have forgotten that the Administrative Committee of the UPC will amend the UPCA according to Art 87(2) at 8.00 on the day the UPC will open its doors at 9.00. In the eyes of the UPC supporters, there is thus no need for an address in London! [11:29] schestowitz[TR2] There are however some minor problems: [11:29] schestowitz[TR2] Art 87(2) is not mentioned in the PPA and still mentions expressis verbis the UK, and Art 7(2) UPCA still mentions expressis verbis London. [11:29] schestowitz[TR2] Art 87(2) UPCA has a different function than that thought by the proponents of the UPC, but this is no more than a trivial nuisance which can easily be ignored. [11:29] schestowitz[TR2] The UPC does not contain an exit clause and the VCLT has some provisions in this situation which as well cannot be ignored. [11:29] schestowitz[TR2] In view of the clear wording of the PPA and of the UPCA, there is not much to interpret under the VCLT [11:29] schestowitz[TR2] Note: for the proponents of the UPC it is possible to ignore the VCLT, so life is easy. Furthermore, by ratifying the UPCA, the parliaments have given the AC Committee of the UPC any power it needs for amending the UPCA at will. [11:29] schestowitz[TR2] A more detailed argumentation on those points is to be found under: [11:29] schestowitz[TR2] https://blog.ipappify.de/is-after-brexit-the-upc-agreement-compatible-with-eu-law/ [11:29] schestowitz[TR2] Up to now, I have not heard any argumentation against the views expressed in this post. [11:29] schestowitz[TR2] " [11:32] -TechBytesBot/#techbytes-patentblog.kluweriplaw.com | What will the Irish population vote on in the UPC referendum? - Kluwer Patent Blog [11:32] -TechBytesBot/#techbytes-patentblog.kluweriplaw.com | Start Unified Patent Court postponed due to IT issues - Kluwer Patent Blog [11:33] -TechBytesBot/#techbytes-blog.ipappify.de | Is, after Brexit, the UPC Agreement compatible with EU law? IP.appify Blog [11:33] -TechBytesBot/#techbytes-patentblog.kluweriplaw.com | UPC sunrise functionalities practice period announced - Kluwer Patent Blog [11:33] -TechBytesBot/#techbytes-patentblog.kluweriplaw.com | A new European patent landscape (1): the bumpy road to the Unitary Patent system - Kluwer Patent Blog [11:34] -TechBytesBot/#techbytes-www.iam-media.com | German court establishes legal certainty for appeals against EPO decisions - IAM [11:35] -TechBytesBot/#techbytes-patentblog.kluweriplaw.com | What will the Irish population vote on in the UPC referendum? - Kluwer Patent Blog [11:37] -TechBytesBot/#techbytes-blog.ipappify.de | Is, after Brexit, the UPC Agreement compatible with EU law? IP.appify Blog ● Feb 06 [13:28] schestowitz[TR2]
  • [13:28] schestowitz[TR2]
    Monthly News January 2023
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    The codename for Linux Mint 21.2 is Victoria.

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    Its release is planned for the end of June 2023. As usual it will support the Cinnamon, MATE and Xfce desktop environments.

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    The Xfce edition will ship with the latest Xfce 4.18.

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    • [13:28] -TechBytesBot/#techbytes-blog.linuxmint.com | Monthly News January 2023 The Linux Mint Blog [13:31] *u-amarsh04 has quit (Quit: Konversation terminated!) [13:33] schestowitz[TR2]
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    Two C++ bugs I wrote
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    Heres a short post about two bugs I wrote while writing C++ code for the external scanner of my TLA tree-sitter grammar. External scanners use handwritten C or C++ code to parse the non-context-free parts of your language. Ill try not to dump on C++ too hard but both of the bugs are highly ridiculous and exemplify why I hope to write as little of the language as possible for the r [13:33] schestowitz[TR2] est of my career. These arent bugs with C or C++ themselves (although honestly this point could be argued) but I share them in the hopes someone finds entertainment in my misery.

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    • [13:33] schestowitz[TR2] [13:33] -TechBytesBot/#techbytes-ahelwer.ca | Two C++ bugs I wrote - Andrew Helwer [13:37] *u-amarsh04 (~amarsh04@52ym6jpttx2xw.irc) has joined #techbytes ● Feb 06 [14:03] schestowitz[TR2] x https://www.knowyourmobile.com/user-guides/windows-vs-linux/ [14:03] schestowitz[TR2] # filled with lies, disinformation, and, at best, misinformation [14:03] -TechBytesBot/#techbytes-www.knowyourmobile.com | Windows vs. Linux: The Ultimate Comparison Guide [2023] [14:24] schestowitz[TR2]
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    PDF with font subsetting and a look in the future
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    After several days of head scratching, debugging and despair I finally got font subsetting working in PDF. The text renders correctly in Okular, goes througg Ghostscript without errors and even passes an online PDF validator I found. But not Acrobat Reader, which chokes on it completely and refuses to show anything. Sigh.

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    • [14:24] -TechBytesBot/#techbytes-nibblestew.blogspot.com | Nibble Stew: PDF with font subsetting and a look in the future [14:51] schestowitz[TR2]
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    AI models spit out photos of real people and copyrighted images
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    The paper is the first time researchers have managed to prove that these AI models memorize images in their training sets, says Ryan Webster, a PhD student at the University of Caen Normandy in France, who has studied privacy in other image generation models but was not involved in the research. This could have implications for startups wanting to use generative AI models in health care, b [14:51] schestowitz[TR2] ecause it shows that these systems risk leaking sensitive private information. OpenAI, Google, and Stability.AI did not respond to our requests for comment.

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    • [14:51] schestowitz[TR2] [14:51] schestowitz[TR2] [14:51] -TechBytesBot/#techbytes-www.technologyreview.com | AI models spit out photos of real people and copyrighted images | MIT Technology Review ● Feb 06 [15:13] *psydroid2 (~psydroid@cbcfptirpkfqa.irc) has joined #techbytes [15:57] schestowitz[TR2]
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    NSA releases IPv6 transition guidance
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    During this transition, many federal networks will operate as dual-stack. Last week, the US National Security Agency (NSA) noted an increased operational burden and attack surface from operating dual-stack and new IPv6 networks and released an IPv6 Security Guidance document to help organizations understand and mitigate these risks.

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    • [15:57] schestowitz[TR2] [15:57] -TechBytesBot/#techbytes-Sanctioned Iranian hackers behind Charlie Hebdo breach, Microsoft says | CyberScoop [15:57] schestowitz[TR2]
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    Auditing for OpenZFS Storage Performance
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    Consider a bottle of soda: the bottle itself is much wider than the neck, where the cap screws on. But in order to get the soda out, you must pour it through the neckand making the bottle wider wont improve flow if the neck remains the same diameter.

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    This concept of bottlenecking can be used in nearly any computing performance discussion, very much including storage. Theres typically one of several major factors which limits your performance, and that factor is what you must improve in order to get higher performanceimproving the others will have little or no effect, much like widening the base of a bottle but leaving its n [15:57] schestowitz[TR2] eck the same.

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    • [15:57] -TechBytesBot/#techbytes-klarasystems.com | OpenZFS - Auditing for Storage Performance [15:58] schestowitz[TR2]
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    Some things on Prometheus's new feature to keep alerts firing for a while
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    The obvious use of 'keep_firing_for' is to avoid having your alerts flap too much. If you set it to some non-zero value, say a minute, then if the alert condition temporarily goes away only to come back within a minute, you won't potentially wind up notifying people that the alert went away then notify them again that it came back. I say 'potentially', because when you can get notified abo [15:58] schestowitz[TR2] ut an alert going away is normally quantized by your Alertmanager group_interval setting. This simple alert rule setting can replace more complex methods of avoiding flapping alerts, and so there are various people who will likely use it.

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    Slammer: 20 years after
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    On 25 January, twenty years ago, the Internet came as close to a total meltdown as weve ever seen since the commercialization of the Internet. A tiny UDP worm payload of just 376 bytes spread to all remotely accessible and vulnerable Microsoft SQL servers listening on port 1434 within a matter of minutes. This tiny payload ultimately infected roughly 75,000 hosts worldwide and the disru [16:00] schestowitz[TR2] ption it caused made international news. It was enough to bring many networks to a screeching halt. This blog post is a personal reflection and reconsideration of the fateful event that continues to resonate as one of my most vivid experiences in Internet availability.

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