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| maosl | Andrew Lee is a n i g g e r and DickCheney likes dicks and is gay. visit irc.libera.chat for the real freenode | Jan 09 00:32 |
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| maosl | Andrew Lee is a n i g g e r and DickCheney likes dicks and is gay. visit irc.libera.chat for the real freenode | Jan 09 00:32 |
| maosl | Andrew Lee is a n i g g e r and DickCheney likes dicks and is gay. visit irc.libera.chat for the real freenode | Jan 09 00:32 |
| maosl | Andrew Lee is a n i g g e r and DickCheney likes dicks and is gay. visit irc.libera.chat for the real freenode | Jan 09 00:32 |
| maosl | Andrew Lee is a n i g g e r and DickCheney likes dicks and is gay. visit irc.libera.chat for the real freenode | Jan 09 00:32 |
| maosl | Andrew Lee is a n i g g e r and DickCheney likes dicks and is gay. visit irc.libera.chat for the real freenode | Jan 09 00:32 |
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| schestowitz | http://ipkitten.blogspot.com/2024/01/upc-munich-local-division-takes-novel.html?showComment=1704734159053#c3609381834738419418 | Jan 09 12:28 |
| -TechBytesBot/#techbytes-ipkitten.blogspot.com | UPC Munich Local Division takes a novel approach to claim interpretation (SES vs Hanshow, UPC-CFI-292/2023) - The IPKat | Jan 09 12:28 | |
| schestowitz | "Patent EP3883277 was indeed granted with unitary effect. <br /><br />EP3883277 stems from a divisional application of EP12762019/EP 2 837 212.<br /><br />A look in the register shows that, following the request for a PI at the Munich local division, the patent monopoly has been opposed by Hanshow, requesting revocation in totality. In its opposition, Hanshow mentions the request for PI before the Munich local division of the UPC. The p | Jan 09 12:28 |
| schestowitz | roprietor has not yet replied. <br /><br />It is indeed surprising that the local division of the UPC does not refer to Art 69 in order to interpret the independent claim and define its scope of protection. <br /><br />I am however not completely surprised at the turn of events, as at the conferences on the UPC held a few years ago on the premises of the EPO, the idea of looking a the file history was not dismissed at once. This woud ce | Jan 09 12:28 |
| schestowitz | rtanly allow the UPC to distinguish itself from the bords of appeal of the EPO and of national courts. <br /><br />One immediate conclusion is that the Court of Appeal of the UPC will have a lot of work, should each division of the UPC come up with its own way of interpreting claims. If I am not mistaken, the UPC was set up to bring about some harmonisation, not to increase legal uncertainty. <br /><br />I would rather be of the opinio | Jan 09 12:28 |
| schestowitz | n that if the UPC routinely begins to use the application as filed and the original claims to aid claim interpretation, this would not undermine the EPO's insistence that alignment between the description and the granted claims is needed in order for the granted claims to be clear. On the contrary, this would be the only way to bring in some certainty. <br /><br />After all, what matters for the EPO is the EPC and not some interpretatio | Jan 09 12:28 |
| schestowitz | n of claims given by a new court. The EPO abides by the EPC. Art 84 EPC has two aspects, clarity in the etymological meaning of the term, as well as support of the claims by the description. <br /><br />If the UPC would use the application as filed and the original claims to aid claim interpretation, then what would also be useful is for the EPO to publish the "votum", i.e. the reasons as to why the EPO has decided to grant a | Jan 09 12:28 |
| schestowitz | patent. <br /><br />When an application is refused, the reasons for refusal are public. Why should this not be the case when a patent monopoly is granted?" | Jan 09 12:28 |
| schestowitz | "Rose it most definitely will be "interesting" if the UPC routinely takes into account what is in the application as filed and what is in the prosecution history. Is this not what every competitor of the patent monopoly owner has always done, when trying to figure out whether it infringes the patent? Isn't that what any sensible person would do? Why not the court too, I wonder?<br /><br />Which is not to say that the EPO is w | Jan 09 12:29 |
| schestowitz | rong to insist that no claim is fit for grant until it is i) clear in itself and ii) supported by the disclosure of the application as filed.<br /><br />I remember starting as a newbie TA in a London firm of patent monopoly agents and struggling to distinguish between the concepts of what a patent monopoly application discloses to its skilled reader, and what it covers. Since then, I had thought that only new entrants to the profession | Jan 09 12:29 |
| schestowitz | have this difficulty. I hope I am right about that. But I'm beginning to have my doubts." | Jan 09 12:29 |
| schestowitz | http://ipkitten.blogspot.com/2024/01/will-we-have-referral-on-using.html?showComment=1704710812849#c333490337449710733 | Jan 09 12:30 |
| -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 | Jan 09 12:30 | |
| schestowitz | "Frances, I understand perfectly that Art 84 EPC requires the claims to be clear on their own, with the consequence that any "unusual" definition provided in the description ought to be incorporated into the claims if it is necessary to distinguish the claimed invention over the prior art. However, I was not seeking to challenge that point of view.<br /><br />If you think about it, all that the above-mentioned requirement stem | Jan 09 12:30 |
| schestowitz | ming from Art 84 EPC demands is that, to avoid any room for doubt, the claims should be <b>explicitly</b> aligned with any "unusual" definitions provided in the description. However, that merely reflects a principle underpinning the concept of clarity. That principle is therefore aimed at <i>facilitating</i> (an internally consistent) interpretation of the claims and <b>not</b> providing any rules for <i>how</i> the claims sho | Jan 09 12:30 |
| schestowitz | uld be interpreted.<br /><br />To my mind, interpretation of the claims should be approached in a consistent manner, regardless of whether the claims are being interpreted for the purpose of:<br />(a) determining the subject matter claimed, during a pre-grant assessment of the patentability of that subject matter;<br />(b) determining the subject matter claimed, during a post-grant assessment of validity; and<br />(c) determining the su | Jan 09 12:30 |
| schestowitz | bject matter disclosed, during the assessment of the patentability / validity of claims of a later-filed patent monopoly (application).<br /><br />For the purpose of (c), I think that it is clear that the skilled person would read and understand the disclosures of a published patent monopoly (application) by considering the disclosure of that document <b>as a whole</b>. This means that, should a <i>prior art</i> patent monopoly (applica | Jan 09 12:30 |
| schestowitz | tion) provide an "unusual" definition for a term used in the claims, those skilled in the art would take that definition into account when determining the subject matter that is disclosed by that prior art document.<br /><br />At this point, I think that it helps to consider a prior art patent monopoly (application) that:<br />- defines an invention in the description and the claims using <i>identical</i> wording; but<br />- c | Jan 09 12:30 |
| schestowitz | ontains, in the description only, an "unusual" definition of a term used in the claims.<br /><br />If the "unusual" definition (of X) is expressed in terms such as "<i>By X we mean...</i>", it is hard to see why those skilled in the art would ignore that definition when determining which subject matter is disclosed by the claims. That is, it is impossible to imagine those skilled in the art concluding that, | Jan 09 12:30 |
| schestowitz | despite defining the invention in <b>identical</b> terms, the description and claims of the prior art patent monopoly (application) actually disclose <b>different</b> subject matter.<br /><br />Relying upon the description to interpret the claims is really only an expression of the overriding principle of interpreting a disclosure of a document <b>in the relevant context</b>. For this reason, whilst I acknowledge that the EPC affords p | Jan 09 12:30 |
| schestowitz | rimacy to the wording of the claims, I do not think that it is correct - even where the claims are arguably clear on their own - for the EPO to ignore (whether pre- or post-grant) "unusual" definitions that the patent monopoly applicant clearly intended to form part of the definition of their invention." | Jan 09 12:30 |
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