IRC: #techbytes @ Techrights IRC Network: Thursday, August 10, 2023

schestowitz

Here my replies to both Pudding and Anonymous. Pudding, you ask, have I ever changed my mind and readily admitted it? Two changes stick in my memory. First, long ago, I used to aver that Binding Precedent is needed, for legal certainty and the fair administration of justice. But in the special case of the law of patentability/validity of patents I have come round to the view that the I have come round to the view that evoluti

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on of patent law at the EPO, the survival of the fittest line of law from amongst the different views of the EPO's different TBA's, delivers better results. Until recently, that is. Second, I used to think that expert witness evidence was the best way to conduct the obviousness enquiry. No longer. I prefer EPO-PSA because as a TSM approach it better excludes the corrupting effect of hindsight knowledge. Anon, you

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ask how to cope with US-originating specifications, in which nothing is declared as essential and everything is stated to be optional. That doesn't phase me. I would look to the duly granted claims to see which features are made essential (those in the independent claim) and which are announced as optional (those in one or other dependent claim). For better or worse, we in Europe are now stuck with a Doctrine of Equivalents. We can loo

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k to the USA to see how to cope with that. They have aeons of experience in deciding for which features of claim 1 it is permissible to stretch in meaning to embrace an accused embodiment and for which ones it is not. But even as we do, let us follow Robin Jacob's advice from long ago. Learn from the Americans, sure. But make sure as we do, that we learn also from their mistakes.

http://ipkitten.blogspot.com/2023/08/adding-matter-by-amending-description.html?showComment=1691524371466#c8039830263074490376

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My position on the adaptation of the description is well known and does not have to be repeated. In the decision, Point 1 it is stated that the subject of the debate is European Patent (UK) EP 2 489 332 C2. EP 2 489 332 relates to an “Acetabular cup with rotatable bearing” and has no relation whatsoever with GB 2489332 C2 which relates to “Handling encoded information and identifying user”. In the decision, Point

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4 one reads: “The Patent [GB 2489332 C2 and not EP 2489332] was amended post-grant under s.27 of the Patents Act 1977, and so it is the C specification that is relevant. There were amendments to both the description and the claims”. The problem is thus a British problem and has nothing to do with European practice. It is no more than an academic exercise to attempt applying this British decision to European practice. I hav

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e thus to agree with Anonymous of Tuesday, 8 August 2023 at 10:49:00 GMT+1 or with Brian Cronin. I said it before, but the whole upheaval about the adaptation of the description, reminds of the early days of the EPO and the upheaval about reference signs in the claims, which were considered limiting by a British court. T 237/84 put an end on the discussion. Art 69 applies to the application or to the patent. Once the patent i

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s granted, it does not appear prima facie logical wanting to apply Art 69 to the application having led to the grant. Once the description has been amended in order to support the claim, it is difficult to follow that interpretation of the claims becomes then a constantly moving target. In T 1203/13, it was held that the mere fact that each passage of the description is preceded by a "may" is not sufficient to disclose a

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combination or generalisation of features. The conclusion is that if everything is optional, nothing is optional. All features ending in the independent claim cannot any longer be considered optional and the description of the patent as to be adapted correspondingly. Where is the problem? I noted the statement “Where there is doubt, or a lack of clarity, regarding the meaning of that wording we might turn not only to the descrip

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tion but also (at least to some extent) to prosecution history”. The logical conclusion of this statement is that the description can be left unamended, but then prosecution history has to come into place of the requirement of adaptation of the description under Art 84. But it would still not allow to attempt an interpretation of the claim on the basis of the description as filed. Otherwise taking into account prosecution histor

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y would be meaningless. I would further observe that Actavis and others v Eli Lilly ([2017] UKSC 48, is the famous pemetrexed case. Taking this case as an example is not correct. The pemetrexed case was no more than an attempt to get read of the “Improver” decision. Max Drei is probably right when he considers that the pemetrexed case triggered the tightening of the requirement of the adaptation of the description. If i

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n the pemetrexed case, the description would have been properly adapted, it is not sure that the conclusions of the UKSC would have been the same. The pemetrexed case should actually be left alone. Rather than a referral on the adaptation of the description, a referral about the application of Art 69 in EPO’s procedure seem much more useful. Any referral bears some danger. The answer to the questions by the EBA depends not

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only from the form of the questions, but also the way those questions are rewritten and/or interpreted by the EBA. G 1/21 is a good example. The referral made no distinction between OP before the first instance and before the BA, and yet, the EBA limited its reply to OP before the BA. One wonders why? It remains that neither Art 116 and R 115 or 116 make any distinction between first instance and BA.

http://ipkitten.blogspot.com/2023/08/adding-matter-by-amending-description.html?showComment=1691514624355#c5927405314866056202

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There you have it, anyone dealing with the legal aspects of patent infringement in any European jurisdiction could have seen this coming from miles away. Even the SACEPO on the guidelines warned the EPO for the strict rules on amending the description - but the EPO would not listen. Because they do not deal with any legal aspects of patent infringement. They are just stuck in their own bubble. It is about time the Enlarged Bo

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ard puts some common sense in this matter, with legal members from national courts (who are available). Unfortunately, rumour has it that the Technical Boards of Appeal are too afraid to refer, as this would anger some high placed folks with the Office. And that may jeopardise the proposal for a next five year term at the Board. And the President only cares about throughput times and the next inventor of year award. <br

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/>Sic transit gloria mundi.

http://ipkitten.blogspot.com/2023/08/adding-matter-by-amending-description.html?showComment=1691504071238#c6480791054938974033

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This is a potential solution. I could get on board with it. How do we think this solution would deal with applications, particularly those that originate from the US, where all features are denoted as optional in the description? I’d hope for a pragmatic view where patentee couldn’t have possibly meant every aspect of the invention is optional, so nothing is optional. I appreciate it is a stretch to argue that

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a claimed feature is defecto optional but that’s exactly what happened in this case.

http://ipkitten.blogspot.com/2023/08/adding-matter-by-amending-description.html?showComment=1691501972300#c4918791289140696779

schestowitz

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I disagree. The following is a quote from Actavis and others v Eli Lilly ([2017] UKSC 48), which is a leading case on the laws of the UK as they apply to patent infringement (and determination of the scope of protection conferred by the claims): 28. The domestic provision governing direct patent infringement is section 60(1) of the Patents Act 1977. However, section 130(7) declares that certain provisions of tha

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t Act, including section 60, are “so framed as to have, as nearly as practicable, the same effects in the United Kingdom as the corresponding provisions of the European Patent Convention … have in the territories to which [that Convention applies]”. Accordingly, it is common ground that it is appropriate to consider the present case by reference to the EPC 2000. 29. Article 69(1) EPC 2000 provides that “[t]he extent o

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f the protection conferred by a European patent … shall be determined by the claims”, although it is followed by another sentence, namely “[n]evertheless, the description and drawings shall be used to interpret the claims”. You may therefore wish to reconsider your position.

http://ipkitten.blogspot.com/2023/08/adding-matter-by-amending-description.html?showComment=1691500709684#c2439725465268422458

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In my view it is the patent attorney’s job, duty and responsibility to defend our client’s interests by writing clear claims with a corresponding description, and to align the description as necessary with the claims. It’s not the job, and it has never been the job of EPO officials or national Judges to write or amend claims and descriptions. They take no responsibility for this. All they can do is to take decisions to

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grant or to refuse, based on the claims and descriptions we provide. In the case under review, the patentee had an unnecessary claim limitation. They tried but failed to avoid the legal consequence that their claim did not cover the alleged infringement, by forcing a claim amendment through a botched amendment of the description. They could alternatively have argued for a claim interpretation to cover the alleged infringement

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as a technical equivalent. But that approach probably would have failed too, depending on the way the claim limitation came to be limited. The point is : aligning the description with the claims, as per the recommended EPO procedure is in conformity with the provisions of the EPC. In my estimation, in 9 cases out of 10, genuine alignment of the description will reinforce the patentee’s protection by reducing the risk of l

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ater objections. But no applicant/patentee is obliged to align the description. If, to defend its perceived interest, a patentee chooses to maintain an unaligned description or tries to promote an unjustified claim interpretation, that is the patentees’ choice. They will bear the legal consequence. Some patentees wait for years as the Case Law unfolds, anticipating some advice on how to do their job. But Case Law decisions

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come several years too late for a patentee who was the victim of a Case Law decision. Moreover, Case Law followers may find that the principle they followed may have changed by the time their case comes up for decision. In summary, the Case Law we made has been promoted by the EPO to simplify and uniformize decisions. It is useful to our profession, but of limited use, as a way of belatedly learning from other patentees’ mistakes.<br

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/> In my opinion, we, as a profession, are mainly responsible for the success of the EPO because of the quality input we provided for the EPO to take their decisions. But on the downside, waiting for Boards of Appeal to tell us how we should do our job, or how we should have done our job, is probably one of the major causes how and why the profession has been guilty of creating such a hotchpotch of Case Law despite the EPO’s aim

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for coherency.

http://ipkitten.blogspot.com/2023/08/adding-matter-by-amending-description.html?showComment=1691492868633#c181878531947350494

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Well, I can certainly agree with you that amendmen...</a></h5><blockquote>Well, I can certainly agree with you that amendments to the description can, under one interpretation of Article 69 EPC, have the effect of altering the meaning afforded to the (unchanged) wording of the claims. The interpretation of Article 69 EPC to which I refer is that which relies upon the amended description to interpret the claims. On an e

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arlier post, I have commented at length about the problems associated with that interpretation. In essence, the main problem is that always relying upon the amended description means that interpretation of the claims becomes a constantly moving target. As happened with Ensygnia's patent, it can also lead to a meaning being ascribed to the claims that cannot in any way be derived from the disclosures of the application as filed. M

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oreover, this can happen by way of amendments that, on the face of it, appear to be relatively innocuous. Perhaps the middle ground that you are looking for can be located via an alternative interpretation of Article 69 EPC, namely one that always interprets the claims by reference to the description of the application as originally filed? Under that interpretation, the problematic practical effects s

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temming from the EPO's description amendment practice suddenly fade away. Further, that interpretation would make it pointless for patentees to even attempt distorting the meaning of the claim language by making "creative" amendments to the description. This is because the claim language would always be afforded the meaning that was originally intended by the patentee, as determined by reference to the description that

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they originally filed. This would have the side benefit of bringing the assessment of Article 69(1) EPC into line with the approach to assessing the other provisions of the EPC that concern (or that rely upon) the interpretation of the claims, such as novelty, priority, inventive step, added matter and post-grant expansion of claim scope. What's not to like?

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

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

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

Aug 10 01:12

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

Aug 10 01:12

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

Aug 10 01:13

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

Aug 10 01:13

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

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schestowitz

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<li>

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<h5><a href="https://linuxjedi.co.uk/2023/08/09/amiga-4000-restoration-x2-part-4/">Amiga 4000 Restoration x2: Part 4</a></h5>

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The Amiga 4000 #2 motherboard has been repaired enough to almost boot correctly, but there is still a problem. There appears to be a stuck bit on the custom chips bus. Let’s continue with the diagnosis.

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</blockquote>

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</li>

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-TechBytesBot/#techbytes-linuxjedi.co.uk | Amiga 4000 Restoration x2: Part 4 – LinuxJedi's /dev/null

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Aug 10 09:44

schestowitz

<RMS-is-ableist> hey

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<RMS-is-ableist> A noninvasive test for Down's syndrome eliminates the small risk of the old test. This might lead more women to get tested, and abort fetuses that have Down's syndrome.

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<RMS-is-ableist> According to Wikipedia, Down's syndrome is a combination of many kinds of medical misfortune. Thus, when carrying a fetus that is likely to have Down's syndrome, I think the right course of action for the woman is to terminate the pregnancy.

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<RMS-is-ableist> That choice does right by the potential children that would otherwise likely be born with grave medical problems and disabilities. As humans, they are entitled to the capacity that is normal for human beings. I don't advocate making rules about the matter, but I think that doing right by your children includes not intentionally starting them out with less than that.

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<RMS-is-ableist> When children with Down's syndrome are born, that's a different situation. They are human beings and I think they deserve the best possible care.

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<RMS-is-ableist> RMS advocates aborting people with down syndrome

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<RMS-is-ableist> thats eugenics

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<RMS-is-ableist> im not against abortion

x https://cyber.fsi.stanford.edu/io/news/addressing-child-exploitation-federated-social-media

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MinceR

there's relatively little point to muzzling matt if you paste his crap anyway

Aug 10 11:40

schestowitz

MinceR: noted for the record only

Aug 10 11:42

schestowitz

and now in the mai n channel

Aug 10 11:42

schestowitz

-TechBytesBot/#techbytes-cyber.fsi.stanford.edu | Addressing Child Exploitation on Federated Social Media | FSI

x https://siliconangle.com/2023/08/09/aptos-labs-partners-microsoft-build-ai-blockchain-solutions-using-openai/

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-TechBytesBot/#techbytes-Aptos Labs partners with Microsoft to build AI blockchain solutions using OpenAI - SiliconANGLE

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MinceR: for the record:

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<DopeDealaNigga> HEY HI

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<DopeDealaNigga> I think somebody getting bodied on the weekday, get out the way

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<DopeDealaNigga> I'm in my new clothes, now drop it for me for a bankroll

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<DopeDealaNigga> I'm lookin' like a motherfuckin' dope dealer nigga

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<DopeDealaNigga> Where the hoes where the blow I'm just a dope dealer nigga

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<DopeDealaNigga> Paper in the paper bag I'm a dope dealer nigga

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<DopeDealaNigga> Bitch to beat his ass I'm a dope dealer nigga

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<DopeDealaNigga> Fuck your homies and the police I'mma dope dealer nigga

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<DopeDealaNigga> Couple diamonds in my rollie I'm a dope dealer nigga

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<DopeDealaNigga> Got the plug on the dodie I'm a dope dealer nigga

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<DopeDealaNigga> Better buck, your auntie know me I'm a dope dealer nigga

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this cannot be dismissed as "just a joke"

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<CrazyRyan> Ryan Farmer is crazy with syphilis

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incel matt

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3am where he is

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in some forest