IRC: #techbytes @ Techrights IRC Network: Saturday, March 23, 2024

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Discrepancies in the description should be amended in line with the claims, but do not affect interpretation of the claims (T 0447/22) - The IPKat

schestowitz

"@Doubting Thomas Referring to the requirement to remove inconsistencies between the description and the claims, the 2024 draft revision of Guideline F-IV 4.3 includes a welcome change. It states : « Any inconsistency between the description and the claims must be avoided if it casts doubt on the subject matter… » . The wording « if it casts doubt » (present tense) replaces the former wording « if it could cast doubt

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» (hypothetical). Importantly for applicants and for consistency between the PCT and EPO Guidelines, this would make the wording of the EPO Guideline closer to the PCT ISPE Guidelines 5.29. It clarifies that the onus is on the Examining Division to show by specific reasoning that the inconsistency does cast doubt. This is especially significant for amendments entered by the ED at the 71(3) stage. Let’s hope this is the signal that th

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e EPO management has begun to retreat on this issue. As to 71(3) amendments, it is to be pointed out that Guideline C-V 1.1 states : « This text may include amendments and corrections made by the examining division on its own initiative which it can reasonably expect the applicant to acccept. The applicant should be contacted by telephone or an official communication has to be written. » This principle is at loggerheads wit

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h an authoritative implementation of Rule 71(3) by EDs imposing amendments the applicant is unlikely to accept, without prior communication, which amounts to arm-twisting the applicant. Furthermore, as stressed by Rose in her final thoughts, T 447/21 Reason 13.1 makes it clear that the principle of the primacy of claims implies that such description amendments as disclaiming clauses or deletions of unclaimed embodiments are i

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rrelevant to the interpretation of claims for the examination of novelty and inventive step, provided the wording of the claims is clear. Note that if they were relevant of interpretation, there could be a new matter issue in court proceedings, based on the argument that such amenments have altered the interpretation of the claims. The more recent T 1628/21 reported by Mr Thomas on his blog (delivered by a different BOA than

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T 447/21 with different members) in on the same line. In T 1628/11, the Board affirms (Reason 1.1.16) the principle of the primacy of the claims over the description under Art 69 and the weight of the CGK in the interpretation. No limitation of the claims can be based on the description. If the patent monopoly owner wants to rely in their argument on unclaimed features, they have to amend the claims to include these features.

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The Board states (Reason 1.1.2) that « a claim should be interpreted as broadly as technically reasonable in the relevant art ». This is a very important clarification, since this rule exactly matches the rule of the settled case law applicable to the examination of applications. The Board further addresses in Reasons 1.1.19 and 1.1.20 the weight to be given to the « disclaiming clauses » (examples « which do

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not form part of the present invention ») introduced by the applicant and/or before grant, by the ED at the 71(3) stage. The Board clearly holds that such disclaiming clauses cannot be used by the patent monopoly owner to try to limit the claims. What matters is the language of the claims, assuming they are clear in themselves. This implies that such clauses are ineffective, and that the EPO current practice of requiring such clauses

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(or the deletion of the examples from the description) is unjustified. Getting back to the draft 2024 revision of the Guidelines, please note that you have the opportunity to submit comments until April 2. Comments will be shared within the SACEPO working group on quality, which is a joint group including EPO personnel and appointees of users’ representative associations. As far as I am concerned, I pl

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an to submit comments at least on the Guidelines sections relevant to the adaptation of description issue. "

http://ipkitten.blogspot.com/2024/03/discrepancies-in-description-should-be.html?showComment=1711008369172#c609873733400025484

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"Haven't done any more than skim the case repor...</a></h5><blockquote>Haven't done any more than skim the case report but when I read "steering" and "protruding parts" my mind strays to the protruding whiskers on the face of the cat in the illustration. I contrast them with the protruding flange on the wheels of a rail vehicle and ask myself whether such a flange is a steering means. When the patent monopoly muses

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that a protuding part can be used as a steering means, I imagine the writer had in mind something like a cat's whiskers as opposed to a feedback-free protuding flange on the wheel of a rail vehicle. They are qualitatively different, aren't they?"

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Discrepancies in the description should be amended in line with the claims, but do not affect interpretation of the claims (T 0447/22) - The IPKat

Mar 23 00:30

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<li><h5><a href="https://www.r-bloggers.com/2024/03/mastering-replacement-using-the-replace-function-in-r/">Mastering Replacement: Using the replace() Function in R</a></h5><blockquote>

Mar 23 00:51

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The replace() function is a handy tool in your R toolbox for modifying specific elements within vectors and data frames. It allows you to swap out unwanted values with new ones, making data cleaning and manipulation a breeze. </blockquote></li>

Mar 23 00:51

-TechBytesBot/#techbytes-Mastering Replacement: Using the replace() Function in R | R-bloggers

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<li>

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<h5><a href="http://blog.davidedmundson.co.uk/blog/kde-store-content/">Trusting content on the KDE Store</a></h5>

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A global theme on the kde third party store had an issue where it executed a script that removed user's data. It wasn't intended as malicious, but a mistake in some shell parsing. It was promptly identified and removed, but not before doing some damage to that user.

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This has started a lot of discourse around the concept of the store, secuirty and upstream KDE. With the main question how can a theme have access to do this?

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</blockquote>

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</li>

-TechBytesBot/#techbytes-blog.davidedmundson.co.uk | Trusting content on the KDE Store – David Edmundson's Web Log

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<li>

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<h5><a href="https://linuxiac.com/ixsystems-confirms-ongoing-support-for-both-truenas-core-and-scale/">iXsystems Confirms Ongoing Support for Both TrueNAS CORE and SCALE</a></h5>

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Following the recent buzz about iXsystems shifting its attention to the Linux-based TrueNAS SCALE, leaving its renowned flagship product, TrueNAS CORE, built on FreeBSD, in the shadows, the company swiftly addressed these concerns with an announcement.

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But before we go any further, let’s take a moment to clarify for our readers who might not be closely familiar with TrueNAS what this is all about.

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</blockquote>

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</li>

-TechBytesBot/#techbytes-linuxiac.com | iXsystems Confirms Ongoing Support for Both TrueNAS CORE and SCALE

x https://therecord.media/ukraine-isps-attacks-solntsepek-sandworm-gru

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Mar 23 08:45

-TechBytesBot/#techbytes-therecord.media | Sandworm-linked group likely knocked down Ukrainian internet providers

Mar 23 08:45

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x https://ubuntu.com//blog/getting-started-with-azure-iot-edge-on-ubuntu-core

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-TechBytesBot/#techbytes-ubuntu.com | NO TITLE

Mar 23 09:39

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"DOS vs Apple - Am I Getting Too Old?"

Mar 23 09:40

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x https://blog.numericcitizen.me/2024/03/22/dos-vs-apple.html

Mar 23 09:40

-TechBytesBot/#techbytes-blog.numericcitizen.me | DOS vs Apple - Am I Getting Too Old? - Numeric Citizen Blog

Mar 23 09:40

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<li>

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<h5><a href="https://linuxgizmos.com/open-source-4wd-ai-robot-kit-compatible-with-raspberry-pi-models-4-and-5/">Open-Source 4WD AI Robot Kit Compatible with Raspberry Pi Models 4 and 5</a></h5>

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</li>

-TechBytesBot/#techbytes- ( status 520 @ https://linuxgizmos.com/open-source-4wd-ai-robot-kit-compatible-with-raspberry-pi-models-4-and-5/ )

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<li>

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<h5><a href="https://news.opensuse.org/2024/03/22/plasma-arrives-in-os-distributions/">Plasma Arrives in openSUSE’s Releases</a></h5>

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Rolling release users and the developer community get an upgrade that marks a monumental shift for KDE desktop users. The update will make it into a Slowroll release in April as the distributions steady paced version-bumps are expected between April 2 and April 14.

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</blockquote>

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</li>

-TechBytesBot/#techbytes-news.opensuse.org | Plasma Arrives in openSUSE’s Releases - openSUSE News

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<li>

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<h5><a href="https://www.gamingonlinux.com/2024/03/system76-release-upgraded-lemur-pro-laptop-plus-a-desktop-sale-now-on/">System76 release upgraded Lemur Pro laptop, plus a desktop sale now on</a></h5>

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Hardware vendor and Pop!_OS Linux developers System76 have revealed a fresh upgrade for their ultraportable laptop, the Lemur Pro. Plus, they have a big desktop sale now on.

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</blockquote>

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</li>

-TechBytesBot/#techbytes-System76 release upgraded Lemur Pro laptop, plus a desktop sale now on | GamingOnLinux

http://ipkitten.blogspot.com/2024/03/discrepancies-in-description-should-be.html?showComment=1711129325555#c3836056902216950039

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schestowitz

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Discrepancies in the description should be amended in line with the claims, but do not affect interpretation of the claims (T 0447/22) - The IPKat

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">Mr Thomas, I would be grateful if you could stop telling me what my motivations are for taking certain positions. That kind of mansplaining is the height of rudeness. My motivation is not to push any limits of interpretation, but rather to ensure that patents either stand or fall based upon the correct interpretation of the wording of the claims. By “correct interpretation” I mean the interpretation: - deriv

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ed by application of all of the provisions / principles of Art 69 EPC and its Protocol; and - in which the words used in the claims are afforded their intended meaning, i.e. the meaning that results from giving due consideration to both context (provided by the application as filed) and the inventor’s purpose. Even by your own admission, it is very clear that the EPO does not (routinely) interpret

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the claims in this way. For example, the Board in T447/22 essentially arrived at an acontextual interpretation of the “steering device”. This is evident from the Board’s: - reliance upon an alleged “natural reading” and a “generally accepted meaning” (see points 10 and 11 of the Reasons); and - refusal (at point 13.2 of the Reasons) to take account of relevant context in the form of a clear p

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ointer in the description to a different meaning of “steering device”. I have no doubt that the approach to claim interpretation adopted by the Board accords with a long line of case law, in particular case law indicating that the description cannot be used to impart a different meaning to terms of the claims that have a clear or generally accepted meaning. However, this does not change the fact that such an approach to c

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laim interpretation is not strictly correct. This is because it does not take due account of context and purpose and does not apply all of the provisions / principles of Art 69 EPC and its Protocol. For reasons that I have explained at length, both here and elsewhere, this can lead to absurd and unjustifiable results."

http://ipkitten.blogspot.com/2024/03/discrepancies-in-description-should-be.html?showComment=1711124857987#c634344704510871652

schestowitz

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"@Doubting Thomas and @Anonymous Looking at Guidelines F-IV .3 and C-V 1.1 in combination, both binding on the EDs, the burden of proof on the ED is not only to provide a reasoned explanation as to why an inconsistency casts doubt on the claimed subject matter but also to ensure the amendment is one the ED can reasonably expect the applicant to accept. The latter is in line with the principle that the applicant is ultimately

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liable for the content of the granted patent monopoly (as we all know, the EPO incurs no liability, even if an amendment entered by the ED raises a new matter issue and makes the patent monopoly invalid). In other words, if you challenge a 71(3) amendment by saying that you disagree, this means that the ED got it wrong when expecting you to accept, and the ED should withdraw the amendment. In real life, applicants

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and their representatives frequently prefer not to challenge the amendment in view of the additional delay and costs it entails and/or because they think the amendment does not affect the scope of the claims and a challenge is not worth the effort. But I have recently heard from colleagues that challenges have become common practice. Of course, amendments entered by the ED at the 71(3) stage which relate to the claims requir

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e very close attention. I have audited cases in which the ED had shifted the « characterised » word or deleted the word « substantially » as in « substantially vertical », simply citing Guideline F-IV, 4.7, without looking at the description to see whether « substantially vertical » was not quite clear in context for the skilled person and to check if a strictly vertical geometry was explicitly disclosed - if not, there is a new

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matter issue. As to explanations for the replacement of « could cast doubt » with « cast doubt » in the Guideline F-IV 4.3, it may be that the number of challenges to 71(3) amendments has increased to a level the EPO management and quality experts have found counterproductive and an embarrassment. The displeasure massively expressed by representatives and applicants may have played a role (I hope, I was one of them). Ano

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ther reason may be that as we now see, more and more BOA decisions applying Art 69 in opposition proceedings to the assessment of validity have held that deletion of unclaimed embodiments or disclaiming clauses are irrelevant to claim interpretation. Which undermines the rationale put forward by the EPO for its practice so far."

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Discrepancies in the description should be amended in line with the claims, but do not affect interpretation of the claims (T 0447/22) - The IPKat

http://ipkitten.blogspot.com/2024/03/discrepancies-in-description-should-be.html?showComment=1711117201644#c2717115621159938268

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"It was the patentee’s interpretation of the claim which was adopted by the national court following the “expert” opinion. That the board came to another conclusion is thus perfectly legitimate. The steering system (c) is quite distinct from the protruding parts (a). The function of the steering system is quite different from that of the protruding parts which are only guiding but by no means steering. See my reply to

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“Anonymous”. Keeping the rotational axis of the machining device along the longitudinal axis of the pipe, cannot be said that it is for steering the machining device. At best it is for guiding the machine device before it cuts a hole in the other pipe. Be it only by a different choice of terms in the claim, the proprietor must have had a different meaning in mind meaning and function between the two features.

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The few places in the description, e.g. § [0019], [0030] and [0037], in which the proprietor claimed that the protruding parts “steer” the whole device do not appear correct. Claiming that the board acted ultra vires appears thus misplaced. In my opinion, the opinion of the national court does not resist a technically reasonable interpretation of the whole disclosure. "

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Discrepancies in the description should be amended in line with the claims, but do not affect interpretation of the claims (T 0447/22) - The IPKat

http://ipkitten.blogspot.com/2024/03/discrepancies-in-description-should-be.html?showComment=1711114297794#c1748937287287912441

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"Regarding my question to you, it seems that T 1695/21 provides a timely illustration of the offhand (and largely unreasoned) manner in which the EPO’s Boards can demand amendments to the description based upon the support requirement. https://www.epo.org/de/boards-of-appeal/decisions/t211695du1 https://blog.ipappify.de/t-1695-21-necessity-of-the-adaptation-of-the-description-in-opposition/ In point 3.1 of the Rea

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sons, the Board in T 1695/21, the Board identifies passages in the description (including paragraphs [0008] to [0010] and [0055]) which relate to subject matter falling outside of the scope of the claims. The Board then reasons that: “The person skilled in the art understands paragraphs [0009] and [0010] of the description according to the main application to mean that the task mentioned in paragraph [0008] is solved by the subje

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ct matter of claims 1 and 6. However, it is not clear from this that embodiments in which the first colour is generated in scattered light are not in accordance with the invention. This causes an inconsistency with the invention defined in claims 1 and 6 of the main request (see in particular feature 1.7a) and therefore violates Article 84 EPC”. Thus, the mere absence of a clear distinction in the description between claime

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d and non-claimed subject-matter creates an “inconsistency” that violates Art 84 EPC. I am sure that Mr Thomas would agree. However, you will note that the Board did not even attempt to explain why the alleged inconsistencies cast doubt upon the scope of the claims (which the Board clearly had no trouble interpreting, despite the existence of “inconsistencies” in the description). This poses another question: if the B

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oards are essentially going to stick with the practice set out in the previous GL, is there a chance that the amendment at F-IV 4.3 might ultimately prove ineffective?"

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Discrepancies in the description should be amended in line with the claims, but do not affect interpretation of the claims (T 0447/22) - The IPKat

-TechBytesBot/#techbytes- ( status 404 @ https://www.epo.org/de/boards-of-appeal/decisions/t211695du1<br )

-TechBytesBot/#techbytes- ( status 404 @ https://blog.ipappify.de/t-1695-21-necessity-of-the-adaptation-of-the-description-in-opposition/<br )

http://ipkitten.blogspot.com/2024/03/discrepancies-in-description-should-be.html?showComment=1711099429259#c1695873890903557651

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-TechBytesBot/#techbytes-ipkitten.blogspot.com | Discrepancies in the description should be amended in line with the claims, but do not affect interpretation of the claims (T 0447/22) - The IPKat

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"Mr Hagel, thank you for your comments. Regarding amendments made by the ED at the 71(3) stage, my experience is that this is all too common, including in situations where it ought to be abundantly clear that the applicant would not, of their own accord, have chosen to make the amendments in question. The practice set out in the GL at C-V 1.1 therefore seems to be honoured more in the breach than in the observation. <br

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/>In this respect, whilst the changes to the GL at F-IV 4.3 should signal a change of EPO practice, you will forgive me if I am a little sceptical about whether this is what will actually happen. The problem as I see it is that it will be all too easy for an ED to simply assert, without explanation, that an alleged "inconsistency" casts doubt upon the extent of protection conferred by the claims. In other words,

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and whilst I really do hope that I am wrong, I believe that the most likely outcome will be a change in form (i.e. how the examiners express support objections) rather than a change in substance. Question: have you ever seen (or heard of) a case in which an ED provided a reasoned explanation of why an alleged "inconsistency" cast doubt upon the scope of the claims? I have not. Indeed, it would be interesting to see

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how an ED might explain away the inherent contradiction between: - an ED alleging that certain “inconsistent” disclosures in the description cast doubt upon the scope of the claims; and - the fact that the ED was itself able to determine that the claims undoubtedly do not encompass the alleged “inconsistent” disclosures in the description. For me, this contradiction arises because the EPO’s practice

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improperly uses support objections under Art 84 EPC as a surrogate for clarity objections. If the disclosures of the description cast doubt upon the scope of the claims, then that is surely a matter of clarity. The logical flaws that illustrate the EPO’s confused thinking on this issue include those at (c) and (d) of my comment from 19 March."