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IRC: #techbytes @ FreeNode: Tuesday, April 20, 2021

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schestowitz 20 23:16
schestowitz"Apr 20 23:16
schestowitzDear Max Drei,Apr 20 23:16
schestowitzI have some sympathy for your statements:Apr 20 23:16
schestowitz- “I'm critical of the tendency of the EPO to find added matter everywhere they look, and hope for a more pragmatic and "real world" application of the Gold Standard to individual cases.Apr 20 23:16
schestowitz- I'm critical of the notion that a claim can be clear to a degree of 100% and that 100% clarity is what Art 84 requires. The Art 84 clarity standard to be attained is a "fit for purpose" standard ie clear enough for the judges to work with in the patents courts,Apr 20 23:16
schestowitzbut this sympathy is rather limited. .Apr 20 23:16
schestowitzAs representative you might want to see a bit more lenient approach to Art 123(2) and Art 84, but you forget one important aspect: the position of third parties.Apr 20 23:16
schestowitzAt least the case law of the boards for added matter has the advantage to be coherent, and this is to be welcomed. It is nice to request a not too strict approach when it comes to added subject-matter, but have a strict stance when it comes to disclosures in prior art by insisting on a pointer towards certain combinations which could endanger the novelty of the claim you defend.Apr 20 23:16
schestowitzOne should never forget that added subject-matter and novelty are the two faces of the same coin.Apr 20 23:16
schestowitzAs far as Art 84 is concerned, what is at stake is not the clarity as such, but also the coherence between claims and description. If you insist upon a woolly definition in the claim, hoping that the description will clarify the situation do not be surprised when you are faced with prior art you might find not relevant if you take a strict interpretation of the claim.Apr 20 23:16
schestowitzAfter all the claim is what matters and it is good so. It should also not be forgotten that when the EPC was drafted in 1973 and amended in 2000, the British delegation wanted Art 84 to become a ground of opposition. This was certainly not innocent, and it is right that the other contracting states refused to open this can of worms. By today would have needed more than just G 3/14.Apr 20 23:16
schestowitzBe it for added matter or clarity never forget that what you loose on one side, you gain on the other side and vice-versa. In other words you cannot have your cake and eat it.Apr 20 23:16
schestowitz"Apr 20 23:16
schestowitz"Apr 20 23:16
schestowitzThanks to Max Drei and Roufousse for their contributions.Apr 20 23:16
schestowitzThe discussion on Art 123(2) and on Art 84 seems indeed a bit overheated.Apr 20 23:16
schestowitzIf you you want you can always find a kind of lack of clarity. When I say a thick wooden plank can be flexible I am correct under two conditions:Apr 20 23:16
schestowitz- at a macroscopic level when it is cantilevered and a sufficient force is applied on itApr 20 23:16
schestowitz- at a microscopic level when I press with my finger on it, there is a micro deformation around the finger.Apr 20 23:16
schestowitzI claim that the context of the claim should be such that one can define whether the macro or the microscopic effect is at stake. And for this no need to look in the description.Apr 20 23:16
schestowitzWhat is not tolerable is a claim which is in clear contradiction with the description.Apr 20 23:16
schestowitzAnd for this it is right that clarifying the description with respect to the claims is a mandatory. This does not hinder reading a claim with a will to understand it.Apr 20 23:16
schestowitz"Apr 20 23:16
schestowitz 20 23:17
schestowitz"Administrative decisions (no, the BoA are not judidicial bodies but administrative ones lacking inter alia judicial independence) are not to be judged by the result but by their reasoning and this reasoning is very outrageous."Apr 20 23:17
schestowitz 20 23:19
schestowitz"Hi Ana, the patents section primarily covers legislation, decisions and procedures relating to the EPO, UKIPO and the Courts of England and Wales. The discussion of invention by AI draws on international case law and commentary. In the main, the analysis of other IP rights is based on harmonised EU law and the legislation and case law of England and Wales."Apr 20 23:19

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