IRC: #techbytes @ Techrights IRC Network: Sunday, April 16, 2023

schestowitz[TR2]

@Curveball Whether there is a need for uncertainty is an intriguing question. I would say it is in the interest of a patentee if third parties are kept in doubt as their freedom, since the prospect of a legal dispute has a chilling effect on potential investment decisions of third parties. In any event, uncertainty is a fact of life in patent matters for many reasons. First, at the drafting stage, it is almost automatic f

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or applicants and patent lawers to try to obtain the broadest possible scope. This implies the use of very general language, which entails uncertainties as to their meaning. Second, the search of prior art can never be exhaustive. Even assuming the patent office has thoroughly completed the search, they may have missed a relevant document, and be unaware of non-patent publications, as clear from the prior art cited in third party o

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bservations and opposition proceedings. Add to that other issues, such as the scant attention paid by EDs to the sufficiency issue.

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Construing the claims to include technical effects mentioned in the description (T 1924/20) - The IPKat

http://ipkitten.blogspot.com/2023/04/construing-claims-to-include-technical.html?showComment=1681579795627#c6378537770065557431

schestowitz[TR2]

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@DXThomas Regarding the use of Article 69, the divide between the BOAs must not be exaggerated , and I cannot agree with your presentation. Referring to the case law of the BOAs point 6.3.2, the prevailing position is fairly clearly that it is outside the EPO’s remit to apply article 69, only courts are competent for that. The only case where the EPO must apply article 69 is to assess compliance of post-grant amendments

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with article 123(3). Along this line, the EPO is not supposed to apply article 69 during examination. And if it did, this would in my view entail considerable confusion. Recent decisions which set out the interpretation rule applicable to the claims during examination are consistent with this line. T 2502/19 of 19 December 2022 (Reason 2.2): “…the claims should be taken by themselves, i.e. without relying on the desc

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ription and drawings, and tested against the broadest possible or objectively reasonable construction which would occur to the skilled reader. This is because Article 84 EPC stipulates that the matter for which protection is sought is defined by the claims. It does not require to rely on any other part of the application documents.“ The Board’s statement clearly distinguishes the context of examination, focused <br

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/> on the subject matter for which protection is sought, defined by the claims, from the post-grant context to which article 69 applies. In the context of examination, the description must not be relied upon to interpret the claims, especially the description cannot be relied upon to « read » into the claims a feature disclosed in the description as a limiting feature. This do T 1553/19 of 28 october 2022 (catchword) : « T

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he normal rule of claim construction of reading a feature specified in a claim in its broadest technically meaningful sense corresponds to determining the broadest scope encompassed by the subject-matter being claimed according to a technically sensible reading. In the case of a feature defined in a positive manner, which imposes the presence of a specific element, this is effectively achieved by giving to the element in question i

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ts broadest technically sensible meaning. » If the question arises of whether disclosed but unclaimed features can be taken into account, it is in my experience because the EDs do not always require the applicant to include in the claims the feature(s) relied upon by the applicant to overcome the objection. When applicant’s reliance on an unclaimed feature is essential to convince the ED to withdraw the objection, the ED sh

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ould make their acceptance conditional on the amendment of the claim. Failure to do so is a serious quality issue which should be taken care of by the EPO management.

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Construing the claims to include technical effects mentioned in the description (T 1924/20) - The IPKat

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<h5><a href="https://www.michaelgeist.ca/2023/04/bill-c-11-estimates-revealed-internal-government-documents-show-no-impact-on-net-employment-admit-streamers-already-invest-millions-in-unofficial-cancon/">Bill C-11 Estimates Revealed: Internal Government Documents Show No Impact on Net Employment, Admit Streamers Already Invest Millions in “Unofficial Cancon”</a></h5>

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Using the Access to Information Act, I have now obtained a copy of the government’s internal estimates for the economic and production impact of Bill C-11 (methodology, memorandum, PPT), which confirm many of my suspicions. While the government is pinning its hopes on massive spending from Internet streamers such as Netflix, it admits that even if the bill did not pass it would not affect net ne

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w employment in the sector. Moreover, internally the government recognizes the claim that Netflix and foreign streamers don’t contribute to Canadian content is false, as it has identifies a new category of “unofficial Cancon” which would qualify as Cancon under every measure but for the fact that it is owned by companies like Netflix and Disney. And as for the payments from social media companies that the government insists a

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re so essential that it has fought for years to include user content regulation in the bill? The estimated economic benefit represents just one percent of its total projection for Bill C-11 with pure guesswork about what percentage of content on the platforms might require contributions.

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-TechBytesBot/#techbytes-www.michaelgeist.ca | Bill C-11 Estimates Revealed: Internal Government Documents Show No Impact on Net Employment, Admit Streamers Already Invest Millions in “Unofficial Cancon” - Michael Geist