●● IRC: #techbytes @ Techrights IRC Network: Friday, June 23, 2023 ●● ● Jun 23 [01:45] *u-amarsh04 (~amarsh04@h9w2ackdz5nh2.irc) has joined #techbytes ● Jun 23 [02:09] *u-amarsh04 has quit (Quit: Konversation terminated!) [02:16] *u-amarsh04 (~amarsh04@h9w2ackdz5nh2.irc) has joined #techbytes [02:49] *u-amarsh04 has quit (Quit: Konversation terminated!) [02:53] *u-amarsh04 (~amarsh04@h9w2ackdz5nh2.irc) has joined #techbytes ● Jun 23 [03:20] *u-amarsh04 has quit (Quit: Konversation terminated!) [03:25] *u-amarsh04 (~amarsh04@h9w2ackdz5nh2.irc) has joined #techbytes [03:31] schestowitz[TR] http://ipkitten.blogspot.com/2023/06/keeping-digital-poker-face-assessing.html?showComment=1687357553906#c4741639718342291589 [03:31] schestowitz[TR] The Board makes some interesting comments in 2.3.3 and 2.3.4:
"2.3.3 Thus, under the current conditions it cannot be assumed that the Enlarged Board of Appeal would have considered there to be a general obstacle against holding a witness hearing via videoconference.

2.3.4 Whether G 1/21 requires a general emergency in order to hear a witness by videoconference contrary to the parties' requests, does not hav [03:31] schestowitz[TR] e to be addressed since G 1/21 does not concern oral proceedings in opposition proceedings nor taking of evidence but instead is limited to oral proceedings in appeal proceedings (see referred question in Reasons 20 of G 1/21)."

Point 2.3.3 is interesting because the Board could equally have chosen to point out that no assumptions can be made regarding whether the EBA would not have considered there to be [03:31] schestowitz[TR] a general obstacle against holding a witness hearing via videoconference. Thus, because the Board did not decide to refer questions on that point of law to the EBA, their observation in 2.3.3 is essentially meaningless.

On the other hand, point 2.3.4 looks to be a bad faith attempt to avoid addressing the elephant in the room, namely that, combined with the wording of Article 116 EPC (which makes no distinction between fi [03:31] schestowitz[TR] rst and second instance oral proceedings), the ruling in G 1/21 casts doubt over the EPO's practice of using VICO as the default format for opposition proceedings.

It is worth observing that the Board for T 423/22 is 3.2.01, which is the same Board as has issued various other (highly questionable!) decisions that are very clearly pro-VICO, including T 2791/19, T 0758/20, T 1158/20 and T 0618/ 21. Even so, it is very disap [03:31] schestowitz[TR] pointing that the Board did not address what appears to me to be the main problem with hearing witnesses by VICO, namely are the parties receiving a fair hearing of their case if the EPO admits witness evidence that could easily be "tainted" ... or at least that is not subject to the same level of safeguards that happens with evidence that is provided in person?

Safeguards at in-person hearings include ex [03:31] schestowitz[TR] cluding the witness from observing the hearing until they are called to provide their evidence, and ensuring that the witness is not "coached" (or prompted) by anyone whilst providing their evidence. Hearing unsupervised witnesses by VICO eliminates both of those safeguards. How is that fair to the parties, especially if patents can be revoked (or upheld) solely upon the basis of evidence that could so easily be tai [03:31] schestowitz[TR] nted? [03:31] schestowitz[TR] Referral to the EBA in 3, 2, 1, .... never.
As we will never see a referral for the question if and if so, how the description is to be amended if the claims have been amended during examination.

Because the Office, with the president at the top, probably have set very strict guidelines on this matter. Any risk of the EBA identifying such guidelines as conflicting with the Convention is to be mitigated. So the presid [03:31] schestowitz[TR] ent will not refer. And every member of the boards knows that if they will ever refer to the EBA, they will not be proposed again as board member after five years. EUR 25k a month is a lot to sacrifice for principles...

As a result, applicants, proprietors, opponents will remain in doubt what to do as patent attorneys cannot properly advise their clients due to this divide among boards and between Office and boards. Whic [03:31] schestowitz[TR] h goes to the detriment of the Office and the European patent system.

sic transit gloria mundi (Europae) [03:32] schestowitz[TR] "Let's face it, within the Office and the Boards of Appeal, the discussion is almost over and all of the members of these instances use the paper of G1/21 to clean up. To put it politely.
I just received a preliminary opinion from a board to indicate whether there would be any strong arguments against oral proceedings by electronic video conferencing.
Apparently, some standards are more gold than others.
Examiners and [03:32] schestowitz[TR] members of the boards of appeal just want to be able to do their work from their home lands and not travel to The Hague or Munich every week because every applicant/patentee/opponent wants to have oral proceedings in person. They want to spend their expat allowance in the country where they do not need it.

I do realise this is very cynical and not every examiner and board member will act like this. But I have had oral pr [03:32] schestowitz[TR] oceedings using electronic means with examiners working from noisy laptops in holiday homes." [03:44] *u-amarsh04 has quit (Quit: Konversation terminated!) [03:51] *u-amarsh04 (~amarsh04@h9w2ackdz5nh2.irc) has joined #techbytes ● Jun 23 [04:03] schestowitz[TR] https://patentblog.kluweriplaw.com/2023/06/22/conflicts-between-upca-and-national-laws-a-dangerous-riddle/#comments [04:03] schestowitz[TR] When it comes to assessing possible conflicts between the different laws, I think that it is important to consider the following points. [04:03] schestowitz[TR] Firstly, the UPC Agreement is INTERNATIONAL law, and not EU law. This means that it is necessary to assess what legal effects (upon national law in France) flow from Frances ratification of the UPC Agreement. [04:03] schestowitz[TR] This is a potentially very complicated matter, as the national law effects that flow from the UPCA will depend upon the constitutional arrangements / conventions in France. [04:03] schestowitz[TR] I have not yet seen any analysis that explains whether the provisions of the UPCA override those of national patent law in France and, if so, for which type(s) of patents the national law provisions are overridden (ie whether for national patents, opted-out EPs, not opted-out EPs and/or EPs having unitary effect). Whilst it would be great to know the answer, I suspect that the reality is that the assessment is far from straightforwa [04:03] schestowitz[TR] rd. [04:03] schestowitz[TR] To add to the complications, constitutional arrangements / conventions will vary from country to country. This means that what is true for France (regarding the national law effects flowing from the UPCA) may not be true for any other UPC Participating Member State and vice versa. [04:03] schestowitz[TR] Secondly, EU law DOES play a part in determining the applicable provisions of patent law but only for EPUEs. Confusingly, Regulation 1257/2012 indicates that EPUEs shall be treated as if they are a NATIONAL patent of a selected Member State (Article 7). It also indicates that the infringement provisions to be applied are those of the NATIONAL law of the selected Member State. [04:03] schestowitz[TR] Thus, even when considering the (potentially limited) impact of EU law, we circle right back to the confusing and complicated interface between national and international laws. [04:03] schestowitz[TR] Finally, there is another international law to consider, namely the EPC. In particular, Article 64(1) EPC indicates that a granted EP shall, in any given EPC State, confer the SAME RIGHTS AS would be conferred by a NATIONAL patent granted in the EPC State in question. This provision applies irrespective of the type of granted EP, and so should mean that national patents, opted-out EPs, not opted-out EPs and EPUEs all confer the same [04:03] schestowitz[TR] rights. [04:03] schestowitz[TR] As for the UPCA, the extent to which Article 64(1) EPC confers effects under national law will vary from country to country. However, a key difference for the EPC is that its member states have, over the years, enacted NATIONAL law provisions that are aligned with the provisions of the EPC. Thus, for example, the UK has enacted Section 77 of the UK Patents Act, which brings UK national law into line with Article 64(1) EPC. I have no [04:03] schestowitz[TR] doubt that, where relevant, there are similar provisions in the national laws of other EPC States. [04:03] schestowitz[TR] The UPCA and the EPC are both international treaties and therefore, in theory, have equal standing under national laws. However, the greater alignment of national laws with the EPC (as compared to the UPCA) suggests to me that the provisions of the EPC are likely to prevail in situations where they conflict with provisions of the UPCA. [04:03] schestowitz[TR] Whether the judges of the UPC will agree that the situation is rather complicated is an open question. However, given that the key questions relate to provisions of national laws, I rather suspect that it will be the judges of national (constitutional) courts that will have the final say. [04:03] schestowitz[TR] Of course, all of the above-mentioned complications were eminently avoidable. All that needed to be done was for the Participating Member States of the UPCA to FULLY (and explicitly) align their national laws with the provisions of the UPCA. But that did not happen, and so here we are. [04:03] schestowitz[TR] By the way, you forgot to mention one of the worst issues of divergence between the UPCA and various national laws, which relate to experimental use and Bolar exceptions from infringement. As things currently stand, it appears that a POST-GRANT selection of patent type and/or litigation venue could completely change the conclusion on infringement for the same acts committed in the same country. However, as that would be entire [04:03] schestowitz[TR] ly contrary to the principle of legal certainty (for third parties), we can look forward to some entertaining debates on which fundamental legal principles should be honoured and which should not. [04:03] schestowitz[TR] REPLY [04:03] schestowitz[TR] law sniffer [04:03] schestowitz[TR] JUNE 22, 2023 AT 4:07 PM [04:03] schestowitz[TR] I just wonder how someone can imagine that no conflict may arise between a national law and a UPCA law: the one is tailored to a Country, the other one refers to a Union of Countries which is a totally different entity, already this prevents the two from overlapping under many aspects, and knowingly the national law always prevails (locally) unfortunately, I would say, but it so [04:03] schestowitz[TR] REPLY [04:03] schestowitz[TR] Thomas [04:03] schestowitz[TR] JUNE 22, 2023 AT 10:10 PM [04:03] schestowitz[TR] The misfortune seems fortunately to be confined to the transitional period. I agree with you that both interpretations are possible. That said, in my view, for the sake of a coherent system, we neither need national courts to produce UPC case law, nor (to larger extent) the other way around. It would likely be a mess to be cleaned up later. But it makes life indeed interesting. [04:06] *u-amarsh04 has quit (Quit: Konversation terminated!) [04:10] *u-amarsh04 (~amarsh04@h9w2ackdz5nh2.irc) has joined #techbytes ● Jun 23 [09:53] *u-amarsh04 has quit (Quit: Konversation terminated!) [09:58] *u-amarsh04 (~amarsh04@h9w2ackdz5nh2.irc) has joined #techbytes ● Jun 23 [11:00] *psydroid2 (~psydroid@u8ftxtfux23wk.irc) has joined #techbytes [11:15] *GNUmoon2 has quit (connection closed) [11:21] *GNUmoon2 (~GNUmoon@ijy3f65ph788e.irc) has joined #techbytes ● Jun 23 [13:17] schestowitz[TR] x https://gizmodo.com/microsoft-activision-blizzard-takeover-hearing-ftc-1850565779 [13:37] *parsifal (~parsifal@aahfbjmj4hann.irc) has joined #techbytes [13:39] *TechBytesBot (~b0t@ju4kayhrhsm6a.irc) has joined #techbytes [13:39] TechBytesBot Hello World! 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