IRC: #techbytes @ FreeNode: Thursday, March 25, 2021

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http://ipkitten.blogspot.com/2021/03/board-of-appeal-in-t180715-continues.html?showComment=1616691425276#c6709201795875238061

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Mar 25 17:44

schestowitz

schestowitz

"Dear Kant,

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I think you might be conflating the extension of periods when they end on a day the office is not open for receipt of documents (Rule 134) and the ten-day notification fiction of Rule 126. There is no rule - at least not to my knowledge - that the ten-day fiction is extended if it ends on days an attorney firm is not open for receipt of documents."

http://ipkitten.blogspot.com/2021/03/board-of-appeal-in-t180715-continues.html?showComment=1616688566362#c309574416854066347

schestowitz

schestowitz

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Is the behaviour of the European Patent Office, in particular the Boards of Appeal of the European Patent Office, in line with the “Rules and Principles of Law”?

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Doubts do not seem to be misplaced!

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What prompts this question and doubts?

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At the beginning of the Corona pandemic in the spring of 2020, both the Opposition Divisions and the Boards of Appeal of the European Patent Office, each of which considering themselves to be independent adjudicating arms associated with the European Patent Office, cancelled all oral proceedings, held in accordance with Art. 116 EPC (European Patent Convention), in order to avoid any risks of Corona infection for all parties in

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attendance.

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The President of the European Patent Office recently issued the following communication for both the Examining and Opposition Divisions:

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"In view of the ongoing disruptions caused by the spread of coronavirus (COVID-19), the European Patent Office (EPO) has decided, with effect from 4 January 2021, to hold oral proceedings in opposition by VICO in accordance with Article 2 of the Decision of the President of the European Patent Office dated 10 November 2020 concerning the modification and extension of the pilot project for oral proceedings by VICO before opposition

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divisions. Where there are serious reasons preventing the use of VICO in opposition, oral proceedings will be postponed until after 15 September 2021.Therefore the European Patent Office announced on November 10, 2020:

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1. That the postponement of in-person opposition hearings (currently until 31 December 2020) be further extended to 15 September 2021 along with extension of the pilot project to the same date;

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2. That the consent of all parties for holding an opposition by VICO will no longer be necessary with effect from 4 January 2021, for the duration of the pilot project.”

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This regulation is generally to be understood as applying only for the period of the pandemic: currently until 21 September 2021. There is clear logic to this decision: all parties understand the need for caution and all users can readily accept such an interim measure.

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It is, at the very least for ethical reasons, incomprehensible that the emergency situation surrounding VICO oral proceedings triggered by the pandemic, should now be exploited to promote a final abandonment of “classical” (in person) oral proceedings as guaranteed by Art. 116 EPC. Of particular concern is the loss of “classical” oral proceedings before the Boards of Appeal of the European Patent Office: such proceedings being

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the last instance to have a case heard before the European Patent Office. It is to be understood that the oral proceedings guaranteed by Art. 116 EPC are a fundamental right to all interested parties.

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Direction is made to the new Art 15a of the Rules of Procedure of the Boards of Appeal (RPBA), as proposed by the President of the Boards of Appeal. The new RPBA will be applied irrespective of the COVID pandemic and, at the very least, result in a significant curtailing of a party’s right to present arguments in person before the Boards of Appeal and may even, ultimately, lead to the abolishment of oral proceedings in the classical

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sense altogether:

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Proposed text

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Article 15a

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Oral proceedings by videoconference

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(1) The Board may decide to hold oral proceedings pursuant to Article 116 EPC by videconference if the Board considers it appropriate to do so, eitherupon request by a party or of its own motion.

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(2) Where oral proceedings are scheduled to be held in person, the Chair may allow a party, representative or accompanying person to attend by videoconference. In exceptional circumstances, the Chair may decide that a party, representative or accompanying person shall attend by videoconference.

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(3) The Chair may allow any member of the Board in the particular appeal to participate by videoconference.

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See:

http://documents.epo.org/projects/babylon/eponet.nsf/0/26FC88F4EBB475FEC125861F002F09E7/$File/user_consultation_art_15a_RPBA_en.pdf

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schestowitz

tbc ..."

http://ipkitten.blogspot.com/2021/03/board-of-appeal-in-t180715-continues.html?showComment=1616678859534#c7875740773280427154

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" saw the EPO has tweeted about a new BoA decision on T2320/16, saying “Technical Board of Appeal confirms that oral proceedings by videoconference are consistent with Art 116 EPC, in the interests of legal certainty. Read their decision https://www.epo.org/law-practice/case-law-appeals/recent/t162320eu1.html “

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'confirms' is interesting choice of words given the fact there's a pending EBA referral on the topic.

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Link to tweet: https://twitter.com/EPOorg/status/1374643941270810625"

http://ipkitten.blogspot.com/2021/03/board-of-appeal-in-t180715-continues.html?showComment=1616655579875#c2883482464310270258

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schestowitz

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I think you might be confusing extension of periods when they end on days the EPO is not open for business (Rule 134) and the ten-day rule concerning deemed notification of letters (Rule 126). There is, to my knowledge, no extension when the ten-days end on a day a patent attorney firm is not open for receipt of letters.

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http://ipkitten.blogspot.com/2021/03/board-of-appeal-in-t180715-continues.html?showComment=1616606311012#c9133567044969982822

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schestowitz

"See the EPO Register for new third-party observations raising objections of partiality. (I have tried to post this twice before but it has apparently vanished into the ether!!!)"

http://ipkitten.blogspot.com/2021/03/board-of-appeal-in-t180715-continues.html?showComment=1616599553292#c3202838366164687775

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schestowitz

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Well, it seems that even compelling reasons were not enough to persuade the EPO President to impose a stay of proceedings in cases affected by G 1/21:

https://www.epo.org/law-practice/legal-texts/official-journal/information-epo/archive/20210324.html

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The AC also did not hesitate to approve the provision whose lawfulness is in doubt, namely Art 15a RPBA:

https://www.epo.org/law-practice/legal-texts/official-journal/ac-decisions/archive/20210323.html

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These developments swiftly follow potentially crucial decisions taken in connection with G1/21 by a Chairman of the EBA who has a personal interest (namely, avoidance of professional embarrassment) in upholding the validity of Art 15a RPBA.

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Against this background, how can we possibly have confidence that the EBA will handle G1/21 in a truly impartial manner?

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Indeed, who will take bets that the opinion in G1/21 will be issued by the EBA in an unchanged composition?"

http://ipkitten.blogspot.com/2021/03/board-of-appeal-in-t180715-continues.html?showComment=1616599235002#c5530688814967050689

schestowitz

schestowitz

"Facing oral opposition proceedings in April, held as a videoconference without the parties´ consent, I wonder if it is possible to request a postponement of said Oral Proceedings."

http://ipkitten.blogspot.com/2021/03/board-of-appeal-in-t180715-continues.html?showComment=1616589852863#c3980863549444118390

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"Rule 134 EPC applies only to periods expiring on days on which one of the filing offices of the EPO is not open for receipt of documents. There does not seem to be any rule stating that deemed notification is extended if it falls on a day where an attorney office is not open for receipt of documents. (Unless it can be demonstrated that receipt occurred later, see Rule 126 EPC) "

http://ipkitten.blogspot.com/2021/03/board-of-appeal-in-t180715-continues.html?showComment=1616581987584#c3289146708223947875

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https://www.epo.org/law-practice/case-law-appeals/recent/t162320eu1.html

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"1.5.2 Article 116 EPC states that "[o]ral proceedings shall take place ...". It does not define in any way the exact form of those proceedings, other than the proceedings being oral in nature. In particular, it does not explicitly exclude oral proceedings by videoconference.

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In the board's view, a prerequisite of oral proceedings is that the parties can see the members of the board and vice versa. This distinguishes oral proceedings pursuant to Article 116 EPC from a telephone conference in which the board members and parties are not visible to each other."

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I don't understand why Art. 116 doesn't exclude ViCo whilst simultaneously excluding telephone conference. Art. 116 doesn't exclude parties not being able to see one another. While we are at it, Art. 116 doesn't exclude oral proceedings via interpretive dance either."

http://ipkitten.blogspot.com/2021/03/board-of-appeal-in-t180715-continues.html?showComment=1616576403749#c9083891212113351525

schestowitz

schestowitz

"Third party observations have been filed raising objections under Article 24 EPC, as many here predicted."

http://ipkitten.blogspot.com/2021/03/board-of-appeal-in-t180715-continues.html?showComment=1616535260583#c4600792647210466195

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"Third party observations raising an objection under Article 24 EPC have been filed:

https://register.epo.org/application?documentId=E50SRQAL7015DSU&number=EP04758381&lng=en&npl=false "

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TechBytesBot

Hello World! I'm TechBytesBot running phIRCe v0.75

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Mar 25 20:58

schestowitz

>> Some of the recent articles were not about Free software. I think it's

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>> best to focus on Free software issues so as to not 'split' the audience.

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> In this case, I was simply referring to posting the link directly into

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> HN if you have an account there, to see if they flag it from any user.

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> Posts on the xxxxxxxxxxxxxxxxxxxx list suggest that you are making editorial

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> decisions based on the person rather than the topic

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> I've been preparing a couple of other posts too:

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> - the Fedora "Community" change,

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> - some Redmine improvements

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> When talking about large Free Software organizations, the questions

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> about leadership and culture become more critical than questions about

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> technology. Nobody wanted to publish Animal Farm back in the day

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> either. It applies to many organizations and most of them don't keep

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> livestock.

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>> Twitter too is a censorship machine.

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> Yes, definitely, but I suspect some sites are censored more than others.

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Mar 25 21:13

schestowitz

> Saw the video, nice! The last time I was on ars technica was when the info about MS repos and VS was in Raspberry Pi OS. Comments were all for MS and I was like... this is NOT the ars I remember.

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> P.S. I rolled out a distro for pi based on bullseye - no windows repos! :)

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> I started reading more about OIN...your post was very informative. They even announced in 2019 their partnership with LF and MS - I'm interested in those posts too.

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> I know you've been busy lately :) but here's an update on voting process at OSI... if you haven't heard.

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> Re-vote at OSI was a no go today... but received an email about the future plan in an update? Content here:

> https://opensource.org/election_update

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-TechBytesBot/#techbytes-opensource.org | OSI Election Update: Trust and Transparency in the 2021 Board Election | Open Source Initiative

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> if you haven't seen - their plan to restore trust in OSI elections is mentioned.

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> Still do not see exact details regarding the vulnerability.

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> Anyway, memberships will expire and others will join in the meantime - So... who is eligible to vote when a re-vote happens?

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> As for the individual memberships - anyone with a lot of allies or dollars could manipulate the vote.

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I mentioned this to Simon Phipps and Christine Hall a long time ago.

Mar 25 21:27

schestowitz

Their response was... not convincing.

Mar 25 21:27

schestowitz

Re: opensource.com down - first noted 45 minutes ago

> https://opensource.com/

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-TechBytesBot/#techbytes-opensource.com | Opensource.com | Opensource.com

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schestowitz

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Yes, I saw that. At the same time parts of redhat.com were broken

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Earlier in the same day most/all Fedora servers were down. I mentioned

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opensource.com

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redhat.com

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Fedora services

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in various social control media posts that day/night.

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Thanks for reporting this to me.

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After this whole storm is over, if RMS is OK, we'll be a lot stronger.

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RMS and Oliva wrote to me. We'll be fine. Just let the mob get 'bored'...