IRC: #techbytes @ Techrights IRC Network: Saturday, August 19, 2023

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Bad cases make bad law: Has DABUS "the AI inventor" actually invented anything? - The IPKat

schestowitz

">Now, firstly I wonder if there is really some AI out there already ( most things I read about are advanced patter recognition machines...). Assuming there are AIs it might be helpful to turn to similar situations. Who owns the copyright for a photograph? The camera or the photographer? If the camera selects the exposure, zoom, scene, ... with some kind of AI? The camera? The user? If an AI is asked to come up with

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a picture of Marvin, the paranoid android? The AI? Douglas Adams? The user of the AI? For me, whoever uses an AI is the owner of its output. When we have an AI with Genuine People Personality I will reconsider..."

http://ipkitten.blogspot.com/2023/08/guest-post-dua-lipa-and-warner-music.html?showComment=1692198626249#c6481674942945818244

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-TechBytesBot/#techbytes-ipkitten.blogspot.com | [Guest post] Dua Lipa and Warner Music sued for copyright infringement - The IPKat

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"It is indeed a very interesting case. (1) As always, it is going to be difficult to prove that there was an oral agreement prohibiting the additional uses; but if there's no such oral agreement, (2) It will be equally difficult for the other party to prove that there was an agreement permitting the additional uses on the remixes- these are new recordings. It is difficult to imagine an implied license for use on the remi

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xes Regarding the Plaintiff's interest as a valid co-composer, if a publishing split was agreed in writing or admitted by conduct, which is not unlikely, proof should not be that much of a task, given the admission. I do agree however with the view that the Plaintiff's contribution to the composition may not be sufficiently original to be entitled to copyright in the first place. Having listened to it, it really ma

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y not be more than synthesized vocal arrangements. There really isn't a distinct melody."

http://ipkitten.blogspot.com/2023/08/adding-matter-by-amending-description.html?showComment=1692278291005#c2589071192122332360

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schestowitz

"@Francis: "But if we rely on the skilled person at the filing date, the skilled person’s reading of the description must also rely on the description as filed for consistency. Otherwise, the skilled person’s reading may take into account substantial amendments which may alter the interpretation of the claims by the court. " Any amendment made to the application documents (description, claims, drawings) can

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affect the rights conferred by the granted patent, namely via the interpretation of the claims with the help of the description and drawings (Art. 69(1)), and ultimately this interpretative exercise is carried out by the national court. This is no way conflicts with the notional skilled person reading the granted patent (description, claims, drawings) with his cgk and abilities at the filing date (*). If you mean that substa

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ntial amendments might add material not present in the application as filed, then that is correct. This is why Art. 123(2) and similar provisions for opposition and revocation exist. We agree that very substantial amendments of the description, in particular amendments that have a serious potential of infringing Art. 123(2), should normally be avoided. (*) if the relevant date is the priority date, then by your log

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ic it should be the description of the priority document that is used, not the description as filed, which quite often contains substantial amendments. So the logic does not work."

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

schestowitz

""You make a good point about the words "embodiment" and "example". Still, I don't think the EPO should insist on the complete removal of material that falls outside the claim or on the insertion into the description of disclaimers (which both could infringe 123(2) and create a trap situation). It is normal that the description as filed discloses more than what ends up being claimed by the granted patent.

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As long as there is no positive statement in the description that certain material falls within the claims (such as the use of "embodiment of the invention"), I would think the potential argument "the claim must be interpreted to cover this material" is insufficiently strong to worry about it. But it may be necessary to assess this case by case."

http://ipkitten.blogspot.com/2023/08/adding-matter-by-amending-description.html?showComment=1692277314360#c7630327858712911211

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-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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"@Anonymous: "A question of interest to me is whether, in a case where the language of a claim amended in prosecution is clear, the text of the originally-filed description, still present in the granted patent, can render that claim so unclear that it fails to comply with Art 84, EPC." The question whether the granted claim is clear or not is irrelevant because clarity is not a ground for opposition or revocati

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on. Before grant (or after amendment during opposition), a claim that has seemingly clear wording can still be unclear within the meaning of Art. 84 if conflicting statements in the description create doubt as to its meaning. See T 985/98, T 2766/17, many other decisions. "After seeking for so long, it is alarming that I have found literally nothing that might provide either theoretical or practical support fo

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r the EPO's current practice. I therefore find it unsurprising that the Boards of Appeal that have taken the time to consider this matter in depth have also concluded that the EPO's current practice has no legal basis." What do you mean by "current practice". There have been decades of case law confirming that the description needs to conform to the claims. If you have failed to find any such decisions, then yo

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u did not look very carefully. There is no doubt that there is a legal basis for requiring the description and claims to be brought into conformity. Where there is room for discussion is the extent of conformity between claims and description that Art. 84 requires there to be. On this point, the current Guidelines may well be too strict. But trying to get the Guidelines fixed by arguing "no legal basis!" in the face

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of decades of case law that contradict you, is perhaps not the best strategy. Compare with inventive step: there is no question that there is a legal basis for rejecting applications for lack of inventive step. This does not mean that each and every rejection is correct, nor does it mean that the Guidelines on inventive step cannot contain incorrect statements. But are you going to contest statements in the Guidelines by arg

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uing "no legal basis!"? "Despite all of this, I remain open to well-reasoned counter-arguments. However, waiting for those has become indistinguishable from waiting for Godot. Frankly, I doubt whether there is anyone out there who is both willing and able to provide such well-reasoned counter-arguments." You can choose to be biased all you want, but it is not going to increase your powers of per

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suasion.'

http://ipkitten.blogspot.com/2023/08/adding-matter-by-amending-description.html?showComment=1692275260777#c562229714565680577

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"Dear Anonymous of Tuesday, 15 August 2023 at 14:15:00 GMT+1, Thanks for reminding me of your arguments about the “Travaux preparatoires” for the EPC. When talking about Art 84, it was during the “Travaux preparatoires” Art 71a. The deletion of “fully” was requested, not by government representatives but by various non-governmental organisations, inter alia the AIPPI, FICPI and CNIPA, but not the Chine

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se Patent Office, rather what is now CIPA. Furthermore, CNIPA/CIPA wanted that a lack of clarity became a ground of opposition. This has been opposed and even the attempt to bring clarity as a ground of opposition in 2000 failed. One can guess what would happened if Art 84 would have become a ground of opposition. The position with respect of support might have been quite different. I can agree that the term “f

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ully supported” might have been felt too restrictive and hence the less intrusive wording supported has been adopted. Counter proposals were to replace “fully” by “fairly”, among them CNIPA/CIPA. Actually whether fully supported, fairly supported or just supported does not make a lot of a difference. At the time of the “Travaux preparatoires”, it was not possible for those in charge to guess how the boards of a

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ppeal would apply the requirement of support, be it full support or just support. Taking pretext of the “Travaux preparatoires” for not adapting the description is a cheap argument brought forward a posteriori by those wanting to keep the description as filed unamended. If the EPO legislator wanted this, he would have said so, like it is the case in the US or France. It means clearly and unambiguously that cl

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aims have to be supported by the description. It can however not mean that the description has not to be adapted once the claims as filed are amended, in general restricted. Such a restriction follows the introduction in the procedure of prior art unknown to the applicant. Features added to an independent claim cannot be left as being optional in the granted description and embodiments/examples disclosed in the description a

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s filed, but not any longer falling under the granted claims cannot be left as belonging to the invention as claimed at the end of the examination procedure. I would be wary of deleting anything from the description, but it cannot agree that the description has not to be amended at all the end of the examination procedure. This is not what is foreseen in the EPC as it stands. "

http://ipkitten.blogspot.com/2023/08/adding-matter-by-amending-description.html?showComment=1692272104225#c9076962595178907489

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-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

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<li>

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<h5><a href="https://www.ubuntubuzz.com/2023/08/devuan-gnu-linux-5-daedalus-released-with-download-links-torrents-and-mirrors.html">Devuan GNU+Linux 5 "Daedalus" Released with Download Links, Torrents and Mirrors</a></h5>

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Devuan GNU+Linux releases version 5 codenamed "Daedalus" on Tuesday, 15 August 2023. It is based on Debian 12 "Bookworm" and coincidentally released close to Debian's thirtieth birthday. We strongly recommend to download via torrent instead of regular links --if you can-- because Devuan torrent shows all choices in one place to you and you can just pick which one you wish. Congratulations to Devuan Community and h

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appy downloading!

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</blockquote>

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</li>

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-TechBytesBot/#techbytes-www.ubuntubuzz.com | Devuan GNU+Linux 5 "Daedalus" Released with Download Links, Torrents and Mirrors

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<li>

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<h5><a href="https://news.opensuse.org/2023/08/18/postrgresql-xen-glibc-up-in-tw/">PostgreSQL, Xen, glibc Update in Tumbleweed</a></h5>

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This week’s openSUSE Tumbleweed snapshots were steady and there were no large updates.

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While updating openSUSE rolling release once a week could result in a larger update, daily updates throughout this week would have meant smaller updates each day.

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</blockquote>

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</li>

-TechBytesBot/#techbytes-news.opensuse.org | PostgreSQL, Xen, glibc Update in Tumbleweed - openSUSE News

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schestowitz

<xxxx> hi

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<xxxx> i've been getting these links, at first i thought they were from the usual "Mr. X" who tips me off to things, but now i no longer think so, i have no idea who is sending them

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<xxxx> the links have to do with you

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<xxxx> it's always this blog: xxxxxxxxxxxx

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<xxxx> it's all fictional. it's http://techrights.org/wiki/Matthew_J_Garrett vandalising the IRC network by defamation. He committed actual crimes against us (there are several police cases)

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<xxxx> oh, well, it's not bad fiction then, i enjoyed the story of you hacking into a cell network to get fr

-TechBytesBot/#techbytes-techrights.org | Matthew J Garrett - Techrights

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http://ipkitten.blogspot.com/2023/08/of-policy-space-and-actors-in-policy.html?showComment=1692395746618#c5351069620489171572

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schestowitz

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"Right. So, no concrete evidence then! Just more strawman arguments. I never asserted anything about obesity, you brought up obesity. I certainly never said that 'obesity … is a cosmetic ailment'. You can check my previous comments. I equally never asserted that 'all the pharmaceutical industry is doing is making trivial/minor modifications of existing drugs'. Again, please read what I wrote very carefully and don't put wo

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rds in my mouth (so to say). By the way, thanks for confirming that the US also makes use of the policy space available to all countries under international IP law. You can call it 'reducing patent rights', if that works for you. Also, higher number of patent filings does not necessarily mean more innovation, irrespective of the country where it occurs. In some countries, patents are not even substantively examined, you simp

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ly fill out a form. And even in countries with a substantive examination process, you can still obtain patents for trivial inventions. Please feel free to get back to me here once you have the evidence I asked for i.e. empirical data or any standard peer-reviewed study to support your assertions and claims. I will be waiting. Have a nice weekend."

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Of policy space and actors in the policy space: The role of courts in developing countries in IP policymaking - The IPKat

http://ipkitten.blogspot.com/2023/08/bad-cases-make-bad-law-has-dabus-ai.html?showComment=1692393217212#c63140133269266818

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"Santa, as to "think" I had in mind that ...</a></h5><blockquote>Santa, as to "think" I had in mind that a patent claim is a definition of an inventive concept and that (at least in the USA) the inventor is the one who "conceives" that concept. The way I see it, the present day AI is a tool, which generates an output, and that output does not (yet) rise to the level of a conception of an inventive concept.

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Accordingly, the intelligence that studies the output and conceives as a result of that study a concept that can be defined in a patent claim is what one should identify as the inventor. The UK definition of the inventor as the "actual deviser" might not be helpful any more, in these times of AI as an ever more useful tool for outputting processed data. But I have to confess that I have zero experience of any AI an

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d what it outputs. Perhaps already it is hard to distinguish between the "feature combination" set forth in a patent claim and an AI output that can also plausibly be argued to be a stating a "combination" of technical features at the level of generalisation of a patent claim."

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Bad cases make bad law: Has DABUS "the AI inventor" actually invented anything? - The IPKat

http://ipkitten.blogspot.com/2023/08/of-policy-space-and-actors-in-policy.html?showComment=1692380758330#c5924359291850136680

schestowitz

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"Thank you for admitting that IP rights can incentivise 'investments'. You haven't justified your assertion that obesity (the disease mentioned in my original post) is a cosmetic ailment. Sounds like you think Americans deserve to suffer from being overweight. Nor have you justified your assertion that all the pharmaceutical industry is doing is making trivial/minor modifications of existing drugs (aspirin wasn't even developed by the i

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ndustry but by a tree!). Do you have any understanding of molecular structure and structure activity relationships? No, so you have been buying the nonsense produced by those whose high income comes from defaming the industry with their click bait, buy-my-article, fund-my-privileged lifestyle arguments, and then regurgitating it. My income comes from protecting the industry that develops new drugs to treat disease, including obesity. Th

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e patents don't block access to any medicines - it just means those that those care about the poor need to put their hands in their pockets, while those who purport to care prefer to misrepresent patents and the industry. The developing country link? Try "Anyone working in the field of IP law from developing countries particularly on the African continent understands the tension between IPRs and access to IP-protected ma

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terials based on human rights imperatives.". The clue there is in the use of the terms "developing countries". Evidence of the effect of "higher levels of patent protection"? What higher levels? The United States has been reducing patent rights for many inventions thans to the Supeme Court, but you won't hear about that in the articles I refer to. The Bolar provisions gave increased options to generic

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s. TRIPs has resulted in huge increases in Chinese R&D spending and patenting - try WIPO's website for numbers of patent filings by country, see China's increase then look at the number of science/medicine articles produced in China. The implementation of TRIPs in the 2000's was in countries where there was limited patent protection, practically non-existent for pharmaceuticals, and those countries had large generic industries

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. Most still don't have any industry investing in R&D. The biggest investors in R&D are have always been in countries where pharma patents have been available and the investment has grown sginficantly since pharmaceutical compounds have been directly protectable. A simple comparison of the new drugs from countries that support drug patents versus countries that don't should provide all the evidence you need. But, all the evidenc

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e will not change your view, because it does not suit your position. Feel free to have the last word."

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Of policy space and actors in the policy space: The role of courts in developing countries in IP policymaking - The IPKat

http://ipkitten.blogspot.com/2023/08/adding-matter-by-amending-description.html?showComment=1692374531149#c2973093219918760296

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">It seems that, depending upon one's perspective, the Ensygnia v Shell either supports or undermines the EPO's "strict" practice regarding adaptation of the description. For those inclined to support the EPO's practice, the UK case demonstrates that an incompletely / improperly aligned description can be used to afford the wording of the claims a meaning completely different to that deemed patentable during prosecu

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tion. For the rest of us, the UK case demonstrates that amendments to the description can change the meaning afforded to unchanged claim language. Really, these two views are two sides of the same coin. That is, they both recognise the fact that the meaning affording the wording of the claims can be influenced by the content of the description. In this respect, it seems to me that what causes a divergence of views

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is whether this fact is viewed as either: (a) a compelling reason to insist upon "strict" adaptation of the description to the claims as allowed; or (b) cause for alarm about a practice that requires adaptation of the description in the absence of a properly determined (and mutually agreed) meaning afforded to the wording of the claims. I guess that the side that one picks therefore could have a lot to do

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with what one perceives as the greater evil, namely either: 1) patentees being able to use an "improperly" amended (or completely unamended) description to argue, in national court proceedings, for an over-broad scope of protection; or 2) patents being either invalidated or afforded an unreasonably narrow scope of protection due to description amendments made to meet the EPO's "strict" requirements. <b

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r />For me, it is not difficult to pick option 2 as the greater evil. This is because the risks: - affect potentially every patent granted by the EPO; and - are enhanced by the fact that the EPO does not properly (i.e. using Art 69 EPC) determine the meaning of the wording of the claims. On the other hand, option 1 gives rise to risks: - only for those patents whose claims contain unclear terms (a

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s it is only for those patents that the description will be used to help interpret the claims); and then - only if a national court is hoodwinked by the patentee's arguments in favour of an over-broad scope of protection (and does not invalidate the patent in view of that broad scope). As far as I am aware, there is not one single example of the risks under option 1 ever having crystallised in practice. As the EPO

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's "strict" description adaptation practice is relatively new, this strongly suggests that, even when faced with descriptions containing the kind of contradictions / inconsistencies that are now apparently verboten at the EPO, the national courts are still perfectly capable of delivering fair results."

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

http://ipkitten.blogspot.com/2023/08/adding-matter-by-amending-description.html?showComment=1692364359977#c2223295335046297819

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"I'm not a parent but, nevertheless, the most recent exchange between Hemingway and Pudding, immediately above, reminds me of the eternal parent-child exchange in which the child poses the eminently reasonable question "Why? only to be met with the oh so infuriating response, from the exasperated parent who has no other reply available "Because I say so!". Only in Europe can the Patent Office suppose itself to be the fath

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er of child-like patents courts ignorant of the rights and wrongs of the law of patent infringement, and sorely in need of disciplined instruction on the matter.'

http://ipkitten.blogspot.com/2023/08/of-policy-space-and-actors-in-policy.html?showComment=1692362870650#c4536926440686121271

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"Thank you for admitting that you have not read the book. Also, yes, your comments are largely irrelevant to the topics addressed in the book, and I don't see how that is down to the review. The book is about the decisions of national courts and that is the focus of this review. We can have debates about the role of IP in pharmaceutical innovation, but again that is not the focus of this book or review. What would be helpful

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is if you can provide empirical studies and data to back up your assertions that stronger IP rights always lead to more innovative drugs. I hope you will be able to supply evidence to show that more new drugs have been approved annually in the last 30/40/50 years due to higher levels of patent rights; and by new drugs, I don't mean drugs for cosmetic ailments or trivial/minor modifications of existing drugs. Of course, prop

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erty rights can incentivise investment but that does not necessarily translate to more innovation. I think you are conflating more property rights with more innovation. That is not to say patent rights or IP rights are not important (and the author of the book does not say they are not important) but, perhaps, we should be more 'realistic' about the precise role of IP rights in innovation."

-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 | Of policy space and actors in the policy space: The role of courts in developing countries in IP policymaking - The IPKat

http://ipkitten.blogspot.com/2023/08/of-policy-space-and-actors-in-policy.html?showComment=1692312430707#c1304835965091559627]

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"Not sure if we read the same review, but as the review notes, this book is about the role of national courts in addressing the tension between patent rights and access to medicines from a human rights perspective. Nothing is said in the review about what the author of the book thinks about pharmaceutical companies (or what they should or should not do). Moreover, I am sure if the author of the book was advocating for the abolishment of

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TRIPS, that would not have escaped the attention of the reviewer as that would be a rather radical claim that would be hard to miss. By the way, if you have read the book itself, as I have, nowhere does the author advocate for the abolishment of patent rights or TRIPS. So, your comment above seems like accusing a cat (pun intended) of not barking like a dog."

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Of policy space and actors in the policy space: The role of courts in developing countries in IP policymaking - The IPKat

http://ipkitten.blogspot.com/2023/08/bad-cases-make-bad-law-has-dabus-ai.html?showComment=1692371213874#c6807821608902137382

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schestowitz

systemd?

Aug 19 21:42

geert

openrc seems improvement to me

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schestowitz

schestowitz

"MaxDrei, the EPC (or any national legislation to my knowledge) does not require the inventor to 'think'. That is also a test that we would not know how to carry out. Also the inventor is not required to 'own' the data/invention. Also human perception at any point is not needed (though it would of course happen). The reality is that we have a pretty low threshold for inventorship in that everyone that was involved at an early stage of d

schestowitz

iscussion is often an inventor. The exact way their mind works is not relevant. Whilst I do not believe AI should be an inventor, I see no actual rational reason for this apart from 'legal discrimination' which for now is necessary because our laws on who a 'person' is cannot deal with anyone apart from a human. [My initial comment above mentions 'slavery' as I have a very uncomfortable feeling of not protecting AI's rights properly, wh

schestowitz

atever those rights might be]"

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Bad cases make bad law: Has DABUS "the AI inventor" actually invented anything? - The IPKat

schestowitz

geert: we use that in tuxmachines

schestowitz

and in techrights

schestowitz

for the new alpine servers