IRC: #techbytes @ Techrights IRC Network: Friday, July 07, 2023

schestowitz[TR]

"Niko. I agree that what you say makes sense. But G1/92 was a very balanced decision because the 'incentive' to investigate properties is the real problem in the situation. A leaf on a tree in a park is available to all for analysis, but we accept in patent law that all the substances in the leaf are not publically disclosed and so are not prior art. The fact they could be isolated and analysed still does not make them prior art. So

schestowitz[TR]

we need to keep the correct balance with marketed products, and saying that partial info from a marketed product can become prior art is changing the balance in quite a big way. This is quite a difficult decision for the Enlarged Board"

-TechBytesBot/#techbytes-ipkitten.blogspot.com | New EBA referral: When is prior use of a product excluded from the prior art for lack of enablement? - The IPKat

schestowitz[TR]

""So, Niko, how often does a product need to be sold in order to become prior art? The argument that something is reproducible because you can buy it is flawed. In this logic, the product is no longer reproducbile (and disappears from the prior art?) once the manufacturer decides to take it off the market. By the same token you could argue that a patent application is sufficiently disclosed if the applicant offers the pr

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otected product for sale?

schestowitz[TR]

">Anonymous, thanks for your comment. I was wrong to suggest that a product as prior art would need to be reproducible. Let me first be clear that I do not know if the EBA will decide that a product itself can be prior art under Art. 54(2) (as opposed to only the information derivable from the product). In my view Art. 54(2) leaves room for accepting a product itself as prior art, and I believe this is desirable (since ot

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herwise one could potentially patent a product that has been widely for sale for years). If a product itself can be prior art under Art. 54(2), then all that is needed is for the product to have been made available to the public. A product that was for sale some time before the priority date was available to the public, even if no member of the public actually bought it. (Compare with a book that was put on sale: its cont

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ent was thereby made available to the public even if nobody bought it.) Criteria such as "reproducibility" or "enablement" play no role here (but see below for Art. 54(1)). A prior use such as the demonstration of a product at an exhibition normally does not make the product itself available to the public but only the information that can be derived from the demonstration. Reproducibility or enablement

schestowitz[TR]

again should play no role for the question whether this information is part of the prior art under Art. 54(2). However, when testing for lack of novelty under Art. 54(1), we do not compare sets of words but technical objects. A product as part of the prior art under Art. 54(2) is a technical object and it is novelty destroying if it can be shown (today) that it satisfies all the limitations included in the claim. Informa

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tion as part of the prior art under Art. 54(2) is novelty destroying only if it allows the skilled person to produce a technical object that satisfies all claim limitations. So it is here where reproducibility/enablement comes in. I believe this position is coherent, but I am open to criticism. G 1/92 may or may not fully support my view, but with G 1/23 the EBA has the chance to overrule/refine/clarify G 1/92.

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The alternative is to decide that Art. 54(2) is about information only and to then carefully deduce the consequences of this position. I would still argue that reproducability/enablement comes in at Art. 54(1), not 54(2). The idea that a "partial" disclosure does not exist at all under Art. 54(2) cannot be right. If a document from 1980 does not disclose in sufficient detail a key aspect of a product

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or method, but the skilled person at the priority date in 2010 would have found a document published in 1990 presenting a solution to the technical problem of how to carry out that key aspect (in a way that gets you to something within the terms of the claim), then there should be lack of inventive step."

https://patentblog.kluweriplaw.com/2023/07/05/deteriorating-patent-quality-epo-under-fire-management-is-not-impressed/#comments

schestowitz[TR]

-TechBytesBot/#techbytes-patentblog.kluweriplaw.com | Deteriorating patent quality: EPO under fire, management is not impressed - Kluwer Patent Blog

schestowitz[TR]

"law sniffer

schestowitz[TR]

JULY 5, 2023 AT 4:59 PM

schestowitz[TR]

(only) two striking data are provided against the quality of the EPO: the 50% time reduction on a single file which I wonder how was determined, I can impossibly judge this from my (not large) law firm point of view, they must have really reliable insider sources within the EPO to be able to state that. And the 90% of patents revoked or amended at the Board of Appeal: how is this possible? In Opposition the first instance relies on

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the same arguments and documents (provided by the parties) as the Board of Appeal does, it is not a matter of complete search or examination, is a matter of non uniform application of the EPC within the EPO, so I fear that the figure had been like that also many years ago

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schestowitz[TR]

Time Per File

schestowitz[TR]

JULY 5, 2023 AT 10:06 PM

schestowitz[TR]

The time available per file can be estimated from official EPO data (published in the EPO reports):

schestowitz[TR]

average number of files per examiner = (applications processed to a conclusion) / (number of examiners)

schestowitz[TR]

You can find a summary of the number of applications processed to a conclusion and the number of examiners in the article “The European Patent Office – The Story in Numbers – Part 2” by James Ward and Frances Wilding.

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That article shows the data from 1978 to 2020. Based on that data, you can estimate how many files every examiner processed per year.

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schestowitz[TR]

law sniffer

schestowitz[TR]

JULY 5, 2023 AT 10:53 PM

schestowitz[TR]

examiners are now and then involved in many other activities which can fluctuate a lot, I know that for sure, finalized procedures depend also on these extra activities, on the number of searches done, on how many examiners work part time, etc. so that figure cannot be considered quality relevant. What I would like to see are real procedural cases that prove the degradation, and not generic data or irrelevant Board of Appeal statist

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ics. In our law firm we log any kind of data but apart from issues with few specific examiners we cannot confirm any trend over time, but I would be happy to see cases that show a generally negative tendency: without a deep analysis of these specific cases it is all politics with an unclear (to me) hidden agenda

schestowitz[TR]

schestowitz[TR]

A quality problem at the EPO? You must be mistaken!

schestowitz[TR]

JULY 5, 2023 AT 10:13 PM

schestowitz[TR]

I beg to disagree with your view.

schestowitz[TR]

The figures might not be as dramatic as you quote, but they are large enough to be concerned.

schestowitz[TR]

If you want to have an idea, just have a look at a few published decisions of the OD.

schestowitz[TR]

If you are willing to spend some time and effort, you will easily arrive to the conclusion that there is a problem with the quality of granted patents and that IPQC has a point

schestowitz[TR]

schestowitz[TR]

Shrikant Mishra

schestowitz[TR]

JULY 5, 2023 AT 8:41 PM

schestowitz[TR]

The reason patent quality is affected because patent office allows it to be so.

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* If “obviously novel ” status is clear from the independent claims and examples and not from any other part of a patent, it’s easier to search whether one is infringing , without wasting time.

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* This way the innovator can not fool arround too.

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* It is easier for both innovator as well as patent attorneys

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Regards

schestowitz[TR]

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Anon Y. Mouse

schestowitz[TR]

JULY 5, 2023 AT 10:33 PM

schestowitz[TR]

The IPQC letter and EPO reaction are not available through the link – it takes me to a Google page saying that I need to request access (which I did, to no avail).

schestowitz[TR]

Can somebody please share the documents in a more accessible way?

schestowitz[TR]

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Kluwer Patent blogger

schestowitz[TR]

JULY 6, 2023 AT 8:57 AM

schestowitz[TR]

The document is now available.'

schestowitz[TR]

LOL

Jul 07 01:37

schestowitz[TR]

"We are proud to be ranked number one for quality by independent IAM surveys for 10 years in a row "

Jul 07 01:37

schestowitz[TR]

BRIBED

Jul 07 01:37

schestowitz[TR]

"[LSCTH] Education allowance below threshold - Request also ouderbijdrage via the portal"

schestowitz[TR]

schestowitz[TR]

Dear Colleagues,

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As you may know, the Education Allowance Reform contains many unfair aspects.

schestowitz[TR]

Certainly, one of them is the threshold of 500€ set in the new regulations for receiving the reimbursement of the school fees within the provisions of the education allowance according to Article71.II.5 Serv.Regs:

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“The direct education costs, comprising enrolment, tuition and capital fees, incurred for pre-school, primary and secondary education that exceed EUR 500 per academic year will be reimbursed.”

schestowitz[TR]

Therefore, while the main argument put forth by the administration for implementing the reform was fairness, those that were costing the least to the EPO were excluded. Moreover, while pretending to include nationals in the reform, the administration de facto and silently excluded most of them. This aspect, however, not only excludes most of the nationals but any colleague who chooses a national school for their child(ren), as these

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schools are generally below the threshold.

schestowitz[TR]

We therefore encourage the colleagues whose child(ren) attend a national school and find themselves in this situation to request the reimbursement of the school fees via the portal. Be aware that the “ouderbijdrage” is and can be claimed as the school fee and any dependent child within the meaning of Article 69 Serv Regs. is eligible for receiving the education allowance and should be registered as such into the Education Allow

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ance portal.

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Don’t forget to download the pdf form of your claim (in “myfips” / “my requests”) and keep a written record of any exchange with the administration and of any relevant documents you may receive from the school, so that you can later challenge it if you wish to do so.

schestowitz[TR]

We will continue demanding that the Administration provides fairness and involves the Staff representation in revising the terms of the education allowance reform."

schestowitz[TR]

schestowitz[TR]

Dear SUEPO members, dear colleagues,

schestowitz[TR]

Please find below the SUEPO TH digest June 2023:

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Staff committee TH elections

schestowitz[TR]

Thank you for voting in the Staff committee elections! The participation rate was exceptionally high, please see the provisional results here.

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We wish to warmly thank the Election Committee which carried out the whole process. After 9 years, the organisation of the elections has once again been entrusted entirely to an Election Committee nominated by the General Assembly of all staff. This stands in stark contrast to the previous two elections, which were organised by the EPO management and were deemed to violate the freedom of association by the ILOAT (see Judgment 4482)

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after a legal challenge led by SUEPO.

schestowitz[TR]

Bringing Teams Together

schestowitz[TR]

The survey run by SUEPO TH relating to the “Bringing teams together” has been finalized, here you can read the results. In a nutshell: colleagues feel that the “bringing teams together” project is reducing engagement and tearing apart the sense of belonging to the organisation. We wish to remind the EPO management that there is plenty of space in the SHELL building for our colleagues who need an allocated individual office s

schestowitz[TR]

pace in order to work to the best of their abilities. And we would like to remind colleagues to put their needs in writing to their managers (see template here and send written complaints to serviceline@epo.org if their workplace for a day does not comply with “the highest standards of cleanliness and hygiene” promised by management.

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Spread the word, yes but transparently and honestly

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The EPO has been asking for your help to recruit new colleagues by calling to spread the word across our networks. We believe that for a successful and long-lasting working relationship, it is important to be transparent and honest from the very beginning. We therefore encourage you to help the Office in their endeavour by adding all the information the Office has omitted, for example how the EPO has the power to change the employme

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nt contract (i.e. codex service regulations) at will and does not hesitate to use that power to the detriment of staff while generally ignoring the input of social partners. See the full paper here.

schestowitz[TR]

Reminder: SAP 5 appeal templates coming in holiday period

schestowitz[TR]

The templates will be sent out to all members for the appeal on “SAP 5” – salary indexation on the salary slip of January 2023 - MR/2023-0017 reviewed decision. The date for filing the appeal is going to fall in the middle of the holiday period (date of reviewed decision + 3 months, i.e. first week of August) so we wish to remind our members to:

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- put a reminder of the limit date to file the appeal in your personal calendar;

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- put aside the pdf documents of the case (the RfR you filed including annexes and payslip + the reviewed decision) to have them on hand at that time;

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- in the days before the limit date, check your private email where you receive emails from SUEPO: you will be receiving the appeal templates.

schestowitz[TR]

schestowitz[TR]

Slides workshop dealing with a toxic work environment

schestowitz[TR]

Some colleagues followed the workshop organized by USF about toxic workplaces and how to deal with them. Please see the workshop slides here.

schestowitz[TR]

Webinar climate justice & working time:

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Others followed the webinar on climate justice & working time organized by EPSU (European Public Service Union), please see the slides here. If you are interested in this topic, please see also the videos by Prof. J. Schor referenced here.

schestowitz[TR]

Kind regards,

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Your SUEPO TH committee'