IRC: #techbytes @ Techrights IRC Network: Wednesday, August 09, 2023

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Adding matter by amending the description to exclude embodiments (Ensygnia v Shell [2023] EWHC 1495 (Pat)) - The IPKat

schestowitz

"As has been pointed out elsewhere, this case is nothing to do with the EPO. The titile in this article could be more aptly named Proprietor by own free will attempts to contort claim 1 via description amendments after grant to cover infringement asserted. The proprietor amended claim 1 as granted to include in in its scope a static sign (such as a poster). The description is not helpful to this interpretation so

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is changed to say an electronic display with sign is outside the scope of the claims. The proprietor was successful in forcing their interpretation but got burned since application as filed and patent as granted did not support such an interpretation. Isn’t this the type of gamesmanship we should all want to avoid? If I read the B spec and decide I am safe, I am not going to be happy going to court to defend a

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gainst a C spec of the type above, even if the claimant loses. Those against the EPO’s approach (as well meaning as it may or may not be, and legal basis aside) can no longer point to the authority of the claims and dismiss the possibility that a proprietor won’t seriously argue a claimed feature can be wished away in view of the description. Is there a middle ground where proprietors have the courtesy of tel

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ling the public what the rough scope of their invention may be?"

http://ipkitten.blogspot.com/2023/08/adding-matter-by-amending-description.html?showComment=1691484607580#c137661347626590676

schestowitz

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Adding matter by amending the description to exclude embodiments (Ensygnia v Shell [2023] EWHC 1495 (Pat)) - The IPKat

schestowitz

"This case report puts me in mind of The Law of Unintended Consequences. I understand that the EPO crusade to "conform" the description strictly to the allowable claims was prompted by its unhappiness with the UK Supreme Court's decision (on what amounts to an infringing "equivalent") in the pemetrexed litigation. Somehow the thinking inside the EPO developed into a view that insisting on strict "con

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formity" would pump up legal certainty, and streamline and shorten court proceedings, in the rare event of a recalcitrant party nevertheless insisting on bringing their patent dispute before a judge. In the real world, however, the very FIRST thing an accused infringer has always looked at, in a patent granted under the EPC, is whether the Applicant made any amendment at all after the filing date. Why, because there lies

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a uniquely attractive "pressure point" that can be used like no other, to squeeze a submission out of the patent owner. With its present obsession on strict "conformity" the EPO is multiplying the number of such pressure points and thereby multiplying the complexity and cost of patent disputes, and increasing rather than reducing levels of uncertainty as to the outcome. Of course one should always constr

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ue the claim in the light of the description. That much is a no-brainer, and done all over the world. But other jurisdictions don't insist like the EPO on strict conformity. Instead they take it in their stride, that the description is what Applicant described as their invention on the filing date of the application. That is the "context" relative to which one construes the words chosen by the Applicant to define their inventi

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on, the subject of their patent application. The judges want and need to factor that thought in to their analysis of what the duly issued claim shall be deemed to include within its scope of protection. The pemetrexed case might indeed be a good example of claim construction as intended under the EPC. Time will tell. But anyway, it seems to me that the pemetrexed case fails as justification for the argument that less than per

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fect "conformity" is the cause of in wrong decisions in court. It is said that the EPO finds attractive its insistence on strict "conformity" because it is a way to increase EPO profits. I find that puzzling. I should have thought that profit-hungry EPO management might rather prefer dumping the insistence on strict "conformity" and then telling its Examiners that, with this shift, Examiners ough

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t to be able to double the number of case disposals they deliver each year. What do other readers think?"

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<tmg1|michelson> hi

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<tmg1|michelson> been missing you on the fediverse ;)

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<tmg1|michelson> not alone in that either

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<schestowitz> fediverse does not seem to have a future

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x https://ubuntu.com//blog/announcing-in-place-upgrade-from-ubuntu-server-to-ubuntu-pro-on-azure

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schestowitz

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# did not click

-TechBytesBot/#techbytes-Announcing In-Place Upgrade from Ubuntu Server to Ubuntu Pro on Azure | Ubuntu

x https://blog.ledger.com/ssh-with-tpm/

schestowitz

-TechBytesBot/#techbytes-blog.ledger.com | Protecting SSH keys with TPM 2.0, now available on Debian

x https://www.ndtv.com/world-news/bill-gates-used-to-think-this-habit-was-unnecessary-but-now-its-super-important-4280148

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-TechBytesBot/#techbytes-www.ndtv.com | Bill Gates Used To Think This Habit Was "Unnecessary", But Now It's "Super Important"