Ganz kurz, Daniel. My suggested text for Question 1 runs to two lines only. The self-indulgent remainder of my post was not intended to be part of the Question. I regret that my IT skills fall short of making my posts clear for readers. [02:53] schestowitz[TR] http://ipkitten.blogspot.com/2023/04/construing-claims-to-include-technical.html?showComment=1681310974193#c8430959422598411327 [02:53] schestowitz[TR] Dear Max Drei,
Your comment is certainly interesting, but it is not sure at all whether the applicant knew of E1 when the application was drafted.
In the description as filed, there is no background art mentioned at all.
In the patent, D1=WO-A1-02/03757 (X,Y in the ISR) was mentioned as prior art.
D1 supported a novelty objection at the beginning of examination. During examination, the [02:53] schestowitz[TR] ED added D5=WO-A1-00/53094 to raise an objection of inventive step with D1 as CPA. With new claims a patent was then granted.
D5 can be found when comparing the documents in the ISR with those quoted on the front page of the patent.
As the examiner found an X,Y document as well as D2=US-A1- 2004 252 854 (Y), D3=WO-A1-2009/138895 (A) and D4=EP-A1- 0 026 247 (Y,A), it is most probable that the examiner stopped [02:53] schestowitz[TR] the search. How D5 came into the procedure cannot be determined. It could well come from another member of the ED.
There was thus no chance for the ED to examine the application with E1 as prior art.
The patent was maintained in amended form and the board considered that claim1 as maintained was lacking IS over E1 on the basis of partial problems. It is difficult to follow you when you consider the reasoning [02:53] schestowitz[TR] of the Board under Art 56 to be tortuous.
When looking at published decisions of the BA following oppositions it is noticeable to see that in nearly 90% of the cases the opponents bring forward patent literature which was available in the search files of the EPO. Even Art 54(3) prior art, sometimes from the same inventor.
It is also noticeable that in most than half the cases the decision of the OD, w [02:53] schestowitz[TR] hatever it might be, is set aside by a BA.
EP-B1-1214337 should read EP-B1-1314337.
[02:53] -TechBytesBot/#techbytes-ipkitten.blogspot.com | EPO tries to have its cake and eat it on claim interpretation (T 0169/20) - The IPKat [02:53] -TechBytesBot/#techbytes-ipkitten.blogspot.com | Construing the claims to include technical effects mentioned in the description (T 1924/20) - The IPKat [02:53] -TechBytesBot/#techbytes-ipkitten.blogspot.com | Construing the claims to include technical effects mentioned in the description (T 1924/20) - The IPKat [02:53] schestowitz[TR] "Dear Max Drei,
No problem if you find your formulation of question 1 better.
I would however refrain using in a referral to the EBA an expression stemming from the US.
I would however like a reply not resembling that given in G 2/21 (plausibility) which does not really help.
[02:53] schestowitz[TR] " [02:53] schestowitz[TR] "Santa, the viewpoint of third parties is indeed im...Santa, the viewpoint of third parties is indeed important. I share your pain when it comes to determining FTO, especially in view of the UKSC's case law on equivalents.
However, even if the UKSC's decision could be viewed as having swung the pendulum too far in favour of patentees, this does not even remotely justify what appears to be an ex [02:53] schestowitz[TR] treme overreaction that swings the pendulum too far in the other direction. That is, it is perfectly possible for there to be serious problems with both the case law on equivalents and the EPO's practice on adaptation of the description. Remember, two wrongs do not make a right.
There are several reasons why I see the EPO's practice as an extreme and unjustified overreaction.
Firstly, it is simply [02:53] schestowitz[TR] not the EPO's business to police the determination (by national courts) of extent of protection. Indeed, it is an overreach for them to even try.
Secondly, the EPO's practice risks achieving results that run directly contrary to the principles set out in the Protocol to Article 69 EPC. That is, they risk limiting the scope of protection to the "strict, literal meaning of the wording used in the claims", and pos [02:53] schestowitz[TR] sibly even to a narrower scope that that, depending upon how good a job the ED has done with interpreting the language of the claims.
Thirdly, if there are problems with the jurisprudence of national courts, then the best way of addressing this would either be through dialogue with those courts or through new legislation. Frankly, attempting to "fix" the case law problem through perverting both the EPO's [02:53] schestowitz[TR] practice and its mission is both lazy and undemocratic.
I think that it should be perfectly possible to fix the current case law problems by coming up with a solution that strikes an acceptable balance between the various competing interests. What the EPO has dreamed up is most definitely not such a balance. [02:53] schestowitz[TR] " [02:54] schestowitz[TR] "Agreed. But Question 1 is for me not free from amb...Agreed. But Question 1 is for me not free from ambiguity, I might prefer:
1) Can it ever be legitimate at the EPO to invoke Art 69 EPC and its Protocol for any purpose other than an enquiry into the extent of protection under Art 123(3) EPC? If so, and in particular:
Every jurisdiction pays lip service to the theory of construing a pate [02:54] schestowitz[TR] nt just like any other document, the reader being mindful of the desirability of achieving internal consistency, including interpreting the claim in the context of the description. This new Decision makes a thoughtful attempt to spell out what that means, in practice. But its "sort of fall-back" formulation to define the role of the description strikes me as not much better than "hand waving" and leaves me less t [02:54] schestowitz[TR] han fully convinced. But who can do better, I wonder.
What about that old US formulation "insolubly ambiguous"? If the claim is that, then it is permissible to turn to the description to resolve the ambiguity. Otherwise, not.
For example, who remembers the notorious CAFC case Chef America, with its claim to baking dough to 400F (resulting in slabs of charcoal instead of loaves of bread). Intended, [02:54] schestowitz[TR] of course, and evident from the description, was baking with the oven set at 400F. But the claim was clear and down it went, much to the chagrin of the owner and their patent attorney. Also in the USA there is a nice case that turned on an "Oxford comma" so it is not exclusively the EPO that goes in for "catastrophic comma" cases. [02:54] schestowitz[TR] " [02:54] schestowitz[TR] http://ipkitten.blogspot.com/2023/04/construing-claims-to-include-technical.html?showComment=1681299464564#c3355620343827726158 [02:54] schestowitz[TR] "Patent practitioners seem to believe jurisprudence...Patent practitioners seem to believe jurisprudence theory does not apply to them and patent laws. However there is a wider context, and in that context there is acceptance of the need for uncertainty in the system in order for justice to be done. More laws and more case law are not always the solution, see:
https://www.supremecourt.uk/docs/speech_111011. [02:54] schestowitz[TR] pdf
The existence of uncertainty in the use of the description or Art 69 or the Protocol, or the defining of the technical effect also makes it more likely justice will be done in litigation [02:54] schestowitz[TR] " [02:54] schestowitz[TR] "It will be interesting to see whether in inf..."It will be interesting to see whether in infringement actions, a similarly hard line will be taken against the attempts of alleged infringers to narrow the claims in arguments of non-infringement."
Interesting for sure but since when did the EPO ever concern itself with infringement or real world applications of the patents it grants (or doesn [02:54] schestowitz[TR] 't).
[02:54] schestowitz[TR] " [02:54] schestowitz[TR] Rather than discussing at length whether the description should be adapted to the claims before grant or maintenance in amended form, it seems better to clarify the use of the description under Art 69 and its protocol as we are in presence of two diverging lines of case law.
According to the first line of case law, Art 69 and its protocol have to be taken into account during prosecution at the EPO, is represented by T 14 [02:54] schestowitz[TR] 73/19 which referred to T 1167/13 and T 2773/18. This line of case law goes back to T 16/87.
According to the second line of case law, Art 69 and its protocol should not be taken into account during prosecution at the EPO, is represented by T 169/20 and T 821/20, the latter referring to T169/20 and T 1127/16.
According to T 1279/04, confirmed by T 1778/17, application of the principles of claim interpretation as laid [02:54] schestowitz[TR] down in Art 69 and the Protocol is to be limited to the determination of the extent of protection which was primarily of concern in infringement proceedings or in opposition under Art 123(3).
According this second line of case law, there is no justification for relying on the description to restrict the scope of the claim by excluding interpretations which are both reasonable and technically sensible in the technical context o [02:54] schestowitz[TR] f the patent.
In order to clarify the situation it would be interesting to hear the EBA on the following questions:
1)Should, in procedures before the EPO Art 69 and its protocol exclusively be used when determining the extent of protection under Art 123(3)?
2) Can Art 69 and its protocol be used
- when determining whether a claim
- contains added subject-matter under Art 123(2) or [02:54] schestowitz[TR]
- lacks novelty
- to assess inventive step, for instance by construing the claims to incorporate a functional effect from the description
3) If the answer to question 2 is positive which conditions should apply?
[02:54] schestowitz[TR] Given the potency of E1 as an attack on validity, ...Given the potency of E1 as an attack on validity, and the tortuous Art 56 EPC reasoning of the Board, my thought is that this case might have turned out much more happily for the patent owner had the drafter of the patent application first studied the disclosure of E1 and discussed it with the inventor before setting pen to paper, for then the technical effect [02:54] schestowitz[TR] s and the OTP relative to E1 would have been different, and more persuasive, in the application as filed.
After all, it is not at all plausible to put forward as an invention the mere potting of circuitry in order to protect it from ambient humidity.
Curious too is how the EPO failed to cite E1 in its search report. After all, E1 (73 pages of it) went on to issue as EP-B1-1214337. [02:54] schestowitz[TR] Thanks Proof of the Pudding. Completely agree your point is valid, but you are shifting the burden to third parties (who I often need to advise on FTO). I am not saying the EPO is perfect, but necessarily they must balance the applicant's needs versus third party needs. Your list of 9 points are all very good questions, but, respectfully, they are pro-applicant. I too find amending the description frustrating and potentially dangero [02:54] schestowitz[TR] us, but I can also see the other side of the argument and the surprising importance the description can have in litigation. There is also a good side to what the EPO is trying to do, although perhaps they are doing it in a disjointed way. My intention is not to disagree with you, but just to give another view on this quite important issue. [02:55] -TechBytesBot/#techbytes-ipkitten.blogspot.com | Construing the claims to include technical effects mentioned in the description (T 1924/20) - The IPKat [02:55] -TechBytesBot/#techbytes- ( status 404 @ https://www.supremecourt.uk/docs/speech_111011 ) ● Apr 13 [03:43] *GNUmoon2 has quit (Ping timeout: 2m30s) [03:58] *GNUmoon2 (~GNUmoon@vk4aipnjdrifg.irc) has joined #techbytes ● Apr 13 [06:17] schestowitz[TR] My response is in http://techrights.org/2023/04/13/standard-life-protecting-perpetrators-of-fraud/ and there will be a lot more coming. [06:17] -TechBytesBot/#techbytes-techrights.org | Standard Life Covers Up Its Role in Pension Fraud, Lies to the Victims | Techrights ● Apr 13 [08:50] schestowitz[TR][08:50] schestowitz[TR] [08:50] schestowitz[TR] [08:50] -TechBytesBot/#techbytes-www.tomshardware.com | Raspberry Pi Pico W Powers Electronics Coding Kit Crowdfunder | Tom's Hardware [08:51] schestowitz[TR]Raspberry Pi Pico W Powers Electronics Coding Kit Crowdfunder
[08:50] schestowitz[TR][08:50] schestowitz[TR][08:50] schestowitz[TR]Picoder is a portable all-in-one learning platform with the Raspberry Pi Pico W at its heart. The Raspberry Pi Pico W is removable, meaning it can be upgraded when / if a newer model is ever released. Coming in a plastic case, Picoder features a range of components embedded into a large PCB. However, this isn't a new idea. Seeed has done something similar for the Arduino, and recently we re [08:50] schestowitz[TR] viewed Pico Bricks, which had embedded components. What is different with Picoder are the component choices.
[08:50] schestowitz[TR][08:51] schestowitz[TR] [08:51] -TechBytesBot/#techbytes-blog.arduino.cc | A very nimble DIY hexapod robot | Arduino Blog [08:52] schestowitz[TR]A very nimble DIY hexapod robot
[08:51] schestowitz[TR][08:51] schestowitz[TR][08:51] schestowitz[TR]While robots can get around on two legs (or even none), it is difficult to get a smooth and efficient gait. Moving up to four legs improves the situation a bit, but each of those legs will still need multiple joints and careful balance for the robot to move in a stable manner. Once you increase the leg count to six, you can achieve some very good gaits, which is why hexapod robots are so po [08:51] schestowitz[TR] pular. To experiment with six legs, Aecert Robotics built this nimble DIY hexapod robot from scratch.
[08:51] schestowitz[TR][08:52] schestowitz[TR] [08:52] schestowitz[TR] [08:52] -TechBytesBot/#techbytes-Sony invests in Raspberry Pi to promote sensory AI development at the edge - SiliconANGLE [08:55] schestowitz[TR]Sony invests in Raspberry Pi to promote sensory AI development at the edge
[08:52] schestowitz[TR][08:52] schestowitz[TR][08:52] schestowitz[TR]Raspberry Pi is an extremely small-form-factor computer with PC-like power that can easily fit into the palm of a hand. It was originally designed as an educational platform for computer science learners to understand programming, coding and computing. However, it has also become popular as a prototyping platform for software developers, especially those building so-called internet of thing [08:52] schestowitz[TR] s devices that sit at the network edge.
[08:52] schestowitz[TR]This is the community that Sony is trying to target through its partnership with Raspberry Pi. Its AITRIOS offering is a development platform for AI models that are powered by cameras and other sensors and operate at the edge, in low-power environments.
[08:52] schestowitz[TR][08:55] schestowitz[TR] [08:55] schestowitz[TR] [08:55] -TechBytesBot/#techbytes-blog.jonudell.net | Migrating Mastodon lists Jon Udell [08:56] schestowitz[TR]Migrating Mastodon lists
[08:55] schestowitz[TR][08:55] schestowitz[TR][08:55] schestowitz[TR]My original Mastodon account was on mastodon.social. I chose it because its the largest instance, its operated by the developers of the service, and it runs the reference implementation of the software. I wanted to experience the fediverse, initially, as most people do, then consider whether to migrate to another server and if so, to which one.
[08:55] schestowitz[TR]Last week I migrated to social.coop which, like cosocial.ca, it what Darius Kazemi calls a community-owned independent social media site. I dont think the acronym COISMS will fly, but the business model is just what Ive been looking for. I dont want to use free services that make me the product they sell. I want to pay for a service thats funded by my dollars, not by my data. That [08:55] schestowitz[TR] s why I bailed on Gmail years ago, in favor of Fastmail, and its why Im happy to spend $10/month the price of a couple of cappucinos to support the people who keep the lights on at social.coop and maintain civility.
[08:55] schestowitz[TR]The instructions for migrating from one server offer two paths: Profile redirect and Profile move. I chose the former, because I assumed I would retain API access to mastodon.social post-migration, and thus have the option to use Steampipe to query both accounts. Why do that? You cant migrate your posts from the old server to the new one, only your followers and (optionally) your follows, bookma [08:55] schestowitz[TR] rks, blocks, and mutes. Steampipe can connect to two different Mastodon servers at the same time, so I figured I could run queries against both.
[08:55] schestowitz[TR][08:56] schestowitz[TR] [08:56] -TechBytesBot/#techbytes-Compiling Emacs - box.matto.nl [08:56] schestowitz[TR]Compiling Emacs
[08:56] schestowitz[TR][08:56] schestowitz[TR][08:56] schestowitz[TR]Being Emacs, there is probably more than one way to compile it, and I don't know if the way I compile Emacs is the best way, but it works and has never failed.
[08:56] schestowitz[TR]Before you start, make sure you have the right dependencies installed. The (not very big) list of packages to install is, of course, for every operating system different.
[08:56] schestowitz[TR][08:56] schestowitz[TR] [08:56] schestowitz[TR] [08:56] -TechBytesBot/#techbytes-blog.powerdns.com | First Alpha Release of PowerDNS Recursor 4.9.0 | PowerDNS Blog ● Apr 13 [09:02] schestowitz[TR] https://www.france24.com/en/americas/20230412-macron-kissing-xi-s-ass-trump-says-after-taiwan-comments [09:02] -TechBytesBot/#techbytes-www.france24.com | Macron 'kissing Xi's ass', Trump says after Taiwan comments ● Apr 13 [10:51] schestowitz[TR]First Alpha Release of PowerDNS Recursor 4.9.0
[08:56] schestowitz[TR][08:56] schestowitz[TR][08:56] schestowitz[TR]Compared to the previous major (4.8) release of PowerDNS Recursor, this release contains the following major changes: [...]
[08:56] schestowitz[TR][10:51] schestowitz[TR] [10:51] -TechBytesBot/#techbytes-Daniel Ellsberg Has Foiled Those Who Want Him Confined to the Past - scheerpost.com [10:55] schestowitz[TR]Daniel Ellsberg Has Foiled Those Who Want Him Confined to the Past
[10:51] schestowitz[TR][10:51] schestowitz[TR][10:51] schestowitz[TR]After working inside the U.S. war machinery, Ellsberg became its highest-ranking operative to opt out bravely throwing sand in its gears by revealing the top-secret Pentagon Papers, at the risk of spending the rest of his life in prison. The 7,000-page study exposed lies about U.S. policies in Vietnam told by four successive presidents. During the 52 years since then, Ellsberg has continually p [10:51] schestowitz[TR] rovided key information and cogent analysis of pretexts for U.S. wars. And he has focused on what theyve actually meant in human terms.
[10:51] schestowitz[TR][10:55] schestowitz[TR] [10:55] -TechBytesBot/#techbytes-www.vice.com | Texas Officials Would Rather Close Library Than Stock Books They Dont Like [10:56] schestowitz[TR]Texas Officials Would Rather Close Library Than Stock Books They Dont Like
[10:55] schestowitz[TR][10:55] schestowitz[TR][10:55] schestowitz[TR]County commissioners in Llano, Texas have signaled they would rather close an entire library system than comply with a court order to stop censoring books.
[10:55] schestowitz[TR]On Monday, Llano County Commissioners called for a special meeting where the main agenda item is to determine whether to continue or cease operations of the Llano County Library System pending further guidance from the Federal Courts.
[10:55] schestowitz[TR][10:56] schestowitz[TR] [10:56] -TechBytesBot/#techbytes-www.rfa.org | County chief who oversaw destruction of Tibetan Buddhist sites moved to new position Radio Free Asia [10:59] schestowitz[TR]County chief who oversaw destruction of Tibetan Buddhist sites moved to new position
[10:56] schestowitz[TR][10:56] schestowitz[TR][10:56] schestowitz[TR]Wang had earlier overseen a campaign of destruction at the sprawling Larung Gar Buddhist Academy in Drago in a move that saw thousands of monks and nuns expelled and homes destroyed.
[10:56] schestowitz[TR][10:59] schestowitz[TR] [10:59] -TechBytesBot/#techbytes-www.michigandaily.com | Linkedin is destroying America ● Apr 13 [15:01] schestowitz[TR] Quick reminder: Filing of the RfR SAP5 salary and pension adjustment templates still possible [15:01] schestowitz[TR] Dear colleagues, [15:01] schestowitz[TR] In this earlier publication we advised staff to file a Request for Review on the Salary Adjustment that was implemented with the January 2023 salary slips. [15:01] schestowitz[TR] We would like to remind you that it is still possible to file these RfR templates: habitually, the salary slip is seen as the implementation of a decision, and as such the time limit for challenging this implementation starts running from this date. [15:01] schestowitz[TR] As the January salary slips were made available on the 26th of January, one can still safely file the Request for Review until Wednesday, 26th of April 2023. [15:01] schestowitz[TR] Please follow these instructions: [15:01] schestowitz[TR] Select the right template (active staff or pensioner). [15:01] schestowitz[TR] Fill in the first page and the last page of the Word template with your personal data and your signature. [15:01] schestowitz[TR] Convert the completed request for review into a PDF file. [15:01] schestowitz[TR] Retrieve your salary slip or pension statement for January 2023. ● Apr 13 [17:09] *u-amarsh04 has quit (Quit: Konversation terminated!) [17:12] *u-amarsh04 (~amarsh04@nqkitbgnqjad4.irc) has joined #techbytes [17:16] *u-amarsh04 has quit (Quit: Konversation terminated!) [17:23] *u-amarsh04 (~amarsh04@nqkitbgnqjad4.irc) has joined #techbytes ● Apr 13 [23:02] *psydruid has quit (Ping timeout: 2m30s) [23:24] *geert (~geert@pkg5828r4idk4.irc) has joined #techbytes [23:29] *psydruid (~psydruid@jevhxkzmtrbww.irc) has joined #techbytes [23:31] geert psydruid :)LinkedIn is the worst form of social media: Heres why
[10:59] schestowitz[TR][10:59] schestowitz[TR][10:59] schestowitz[TR]Recent studies have revealed nearly half of LinkedIns users as prone to these feelings of negativity, evidence that the effects of the apps toxic hustle culture is experienced by the bulk of users. Despite these sentiments, however, many individuals feel that LinkedIn is harder to quit than traditional social media. With nearly 85% of jobs currently being filled through networking, Link [10:59] schestowitz[TR] edIns web of connectivity is getting progressively harder to escape.
[10:59] schestowitz[TR]This perceived necessity of LinkedIn as a job search assist has become the gold standard of the apps interface, trapping users in an endless scroll under the veil of professional development. Correspondingly, LinkedIns revenue increased by 26.2% in 2022, currently resting at a cool $14.5 billion. The platforms reliance on monetizing user data and leveraging connections to generate pr [10:59] schestowitz[TR] ofits results in a direct commodification of interpersonal relationships. Ads and sponsored content are also designed to match users job aspirations, causing even the pursuit of career ambitions to be exploited as an opportunity for profit.
[10:59] schestowitz[TR]