●● IRC: #techbytes @ Techrights IRC Network: Sunday, March 26, 2023 ●● ● Mar 26 [00:37] *psydruid (~psydruid@jevhxkzmtrbww.irc) has left #techbytes [00:41] *psydruid (~psydruid@jevhxkzmtrbww.irc) has joined #techbytes ● Mar 26 [02:45] *Techrights-sec (~quassel@rbnv8qskr8rgw.irc) has joined #techbytes ● Mar 26 [04:24] schestowitz[TR] I believe that we shall just have to agree to diff... http://ipkitten.blogspot.com/2023/03/epo-tries-to-have-its-cake-and-eat-it.html?showComment=1679689092181#c322452154898835941 [04:24] schestowitz[TR] I believe that we shall just have to agree to differ on whether "informal" communications between the EPO and EU institutions / governments are, on balance, a good thing. Whilst I can concede that they have their place, I am deeply unhappy about the prospect that those communications might end up with the EPO being pressured to "fix" a perceived problem in the system. Also, the total absence of effective oversigh [04:24] schestowitz[TR] t makes the situation far worse, at least from the perspective of democratic accountability / legitimacy.

From a completely pragmatic perspective, I would also point out that the EPO is only one cog (albeit an important one) in a complex system. There will be times when the system needs adjustment to make it run better, or to cope with new developments. However, it is completely implausible that the relevant adjustment ca [04:24] schestowitz[TR] n be (or can best be) made by "tweaking" the EPO case law / practice part of the system. Also, over-reliance upon that mechanism of adjustment can lead to legislators becoming too lazy to make adjustments that can achieve far more than even a "dynamic" interpretation of the EPO's case law. [04:24] schestowitz[TR] Thank you Proof of the Pudding. As I've said to MaxDrei in an earlier comment, I believe that 'informal communications' between the EPO and others is a good thing. The EPC and EPO case law cannot provide the necessary dynamism that is needed to keep the patent system 'fit for purpose'. The sad part is that it would be too complex to bring policy matters into case law. Looking into the future and the bigger picture, we live in a rapi [04:24] schestowitz[TR] dly changing world where huge amounts of economic disruption are on the way for reasons such as climate change, bank collapses, etc, but we have a patent system that will not help the resilience of the research community when things become tougher for them.
As for the UK IPO it is not given the resources that would allow it to meaningfully influence the EPO. That is to do with how UK governments treat civil servants and govern [04:24] schestowitz[TR] ment institutions, and end up rendering them close to dysfunctional [04:24] schestowitz[TR] Daniel, I am sorry that you find my comment less than fair to you. My quote from your blog was intended to attract attention to your blog. My quote begins with the words "A further possible conclusion....". This would arouse the curiosity of the reader, I thought, to find out what other conclusions you mention in your blog item. Readers who take the quote as an admission, that you have changed sides, and have recanted fro [04:24] schestowitz[TR] m your position that descriptions have to be conformed, are not very good at assessing evidence, are they?

As to my "cause" I don't have one. I too am (more or less) retired so have no personal axe to grind any more. My blog postings are often deliberately provocative. I want to get others to comment, and to learn from them. As "Santa" says, the more feedback the better. I suppose that also means &quo [04:24] schestowitz[TR] t;the more lobby activity, the better" but, on that, I'm not so sure. Meanwhile, I can relate to both sides of the argument about conforming the description and am deeply curious how the EBA can navigate to an outcome that works.

As to the mischief of picking out for a quote less than the "correct" number of words, you might enjoy a smile to read that Patent Robot has just dubbed you "the only patent e [04:24] schestowitz[TR] xpert in the world".



[04:24] schestowitz[TR] If the only patent expert in the world supporting the new practice of the EPO admits that "it is better not to adapt the description to the claims", I think that the issue is crystal clear.

Unfortunately, the EPO is still promoting the new practice but some EPO applicants are already filing national to avoid this issue.

I can imagine that in the next years the ratio European/national will drop signi [04:24] schestowitz[TR] ficantly (also because of the UPC). Italy has opened the PCT national phase and other European countries might follow (France? Netherlands?). [04:24] schestowitz[TR] [04:24] schestowitz[TR] Dear Max Drei, [04:24] schestowitz[TR] I found it only fair to inform abo... http://ipkitten.blogspot.com/2023/03/epo-tries-to-have-its-cake-and-eat-it.html?showComment=1679644127091#c7675981057577296345 [04:24] schestowitz[TR] Dear Max Drei,

I found it only fair to inform about this decision. It does certainly not warrant the label braking news.

This decision shows that when the description is adapted, the adaptation has to be correct. No more, but no less.

It would have found it fair if you had not simply picked out what suits your cause.

I have indeed said: "A further possible conclusion, would b [04:24] schestowitz[TR] e that it is better not to adapt the description to the claims."
:
The first conclusion, which you did not quote, is however quite different:

This decision could lead to the conclusion that when the description is adapted to the claims, the adaptation has to be correct by all means. This is the right approach.

I have certainly not changed sides!

I further find the last comment a [04:24] schestowitz[TR] s well quite important:

However, this decision shows once more that a decision of the EBA on whether or not the claims have to be interpreted taking into account the description during prosecution in examination or opposition is urgently needed.

In my humble opinion, such a referral appears more important to me than a mere referral on the adaptation of the description.

The readers will find th [04:24] schestowitz[TR] e whole report on this decision and an explanation as to how the board came to its decision on the following link:

https://blog.ipappify.de/t-1093-21-interpretation-of-the-claims-adaptation-of-the-description-to-the-claims/
[04:24] schestowitz[TR] [04:24] schestowitz[TR] [04:24] schestowitz[TR] [04:24] schestowitz[TR] I might also add that only international bodies such as the EPO are immune from the legal consequences of breaching the rule of law.

With its primary patent granting authority and (soon) primary patent court being established under international law, the EU is now very likely to see "political" influences having a far greater impact upon the development of patent case law and practice. Whilst this [04:24] schestowitz[TR] might sound like a marvellous prospect to those in the EU's ivory towers, the principles of the rule of law are there for a reason. I therefore do not see this ending well for the EU. [04:24] schestowitz[TR] [04:24] schestowitz[TR] [04:24] schestowitz[TR] [04:24] schestowitz[TR] [04:24] schestowitz[TR] @Anon(DXT)

If there is anything that I wish to "carefully avoid" it is getting side-tracked on an issue that was not the focus of my contribution. Perhaps with the exception of a few, subtle points, it will not surprise you to learn that I am inclined to disagree with the conclusions of the cases that you cite. However, if divergence from the conclusions of even a long line of "majority" [04:24] schestowitz[TR] ; case law makes an interpretation of the EPC "wrong", then someone better tell the EBA that their services are no longer required.

You are clearly convinced that Article 84 EPC requires adaptation of the description, and that any downstream consequences of that practice are not the EPO's concern. Whilst the latter point is in principle a logically defensible position, problems arise when the EPO radically chang [04:24] schestowitz[TR] es its practice, as it has done on description amendments. In such instances, the change in practice is unlikely to gain public acceptance in the absence of a compelling explanation (such as an EBA ruling).

For me, the most compelling interpretations of legal provisions always pay due attention to the purpose served by the provision(s) in question. In my view, such an approach helps to avoid interpretations that, whilst a [04:24] schestowitz[TR] rguably defensible from some perspectives, lead to absurd (or unfair) results that do not satisfy the purpose of the relevant provision(s).

In this regard, and whilst your trust in national courts is admirable, I believe that there are already numerous examples of cases (including the "catastrophic comma loss" case) where an inadvertent error by the ED has, where not spotted by the applicant, led to disastrous d [04:24] schestowitz[TR] ownstream consequences. It would therefore be foolish to dismiss or minimise the possible risks stemming from such inadvertent errors. More pertinently, it surely cannot be the (or a) purpose of Article 84 EPC to force applicants to make legally (highly) risky amendments to the description ... at least not without potentially greater legal risks have been identified as arising should the description not be amended.

To be [04:24] schestowitz[TR] clear, the description adaptation practice I am talking about here is the requirement to delete (or label as "not the claimed invention") those embodiments that the ED believe fall outside of the scope of the claims. For me, such practice is simply unacceptable, for all of the reasons that I have described.

I too trust national courts to reach sensible decisions. And I trust them to reach those decisions without [04:24] schestowitz[TR] having to be spoon-fed the ED's view on which embodiments of the original description fall within the scope of the claims and which do not. [04:24] schestowitz[TR] [04:24] schestowitz[TR] [04:24] schestowitz[TR] [04:24] schestowitz[TR] Santa, thank you again for your contribution.

It has been evident to me for some time that the EU institutions and governments of EU Member States can be somewhat unreliable when it comes to upholding rule of law principles. Therefore, whilst I have no way of independently verifying what you describe, it would not surprise me to learn that those institutions and governments are prepared to ride roughshod [04:24] schestowitz[TR] over the rule of law when they think that nobody is watching.

For me, the most important take-home message is that (quasi-)judicial bodies set up under international law seem to be far more susceptible to political interference than equivalent bodies established under national laws. I guess that I should not be particularly surprised if this conclusion turns out to be true. This is because everyone involved will presumabl [04:24] schestowitz[TR] y be able to rely upon immunities that apply to international organisations, and so will not fear any blow-back from taking actions that would be clearly unlawful in other circumstances.

I do wonder, however, what the non-EU EPC Member States think about the possibility that the EPO is susceptible to undue influences from EU institutions and governments. The UK government, for example, might be expected to take exception [04:24] schestowitz[TR] to EU institutions and governments shaping the EPC to their own ends, and by underhand means. The UK IPO has so far proven to be fundamentally supine with regard to such (EU) political interference in the EPC. However, as the reasons for this are not entirely clear, there is no guarantee that even the most generous of cooperation budgets can ensure such docility in the long term. [04:24] schestowitz[TR] Thu, 23 Mar 2023 12:45:52 +0000 http://ipkitten.blogspot.com/feeds/comments/default?alt=rss [04:24] schestowitz[TR] [04:24] schestowitz[TR] Thank you MaxDrei. I just want to put 'on record' that I believe there are good things that emerge from EPO insiders talking to other institutions, whether it's the EU, national courts or government civil servants. Also there are good impacts that the UPC, and its case law, will have on EPO practice. The test of a good patent is how it does in litigation and how it serves the interests of the research community (pat [04:24] schestowitz[TR] entee and also third parties). The more 'feedback' we have in the system which then impacts EPO practice, the better [04:24] -TechBytesBot/#techbytes-ipkitten.blogspot.com | EPO tries to have its cake and eat it on claim interpretation (T 0169/20) - The IPKat [04:25] -TechBytesBot/#techbytes-ipkitten.blogspot.com | EPO tries to have its cake and eat it on claim interpretation (T 0169/20) - The IPKat [04:26] -TechBytesBot/#techbytes- ( status 404 @ https://blog.ipappify.de/t-1093-21-interpretation-of-the-claims-adaptation-of-the-description-to-the-claims/
thought concerning the requirement for adaptation of the description. G 1/22 clearly presents the application as originally filed as the cornerstone of inventive step assessment in this statement quoted by Rose :
"A patent applicant or proprietor may rely upon a technical effect for inventive step if the skilled person, having t [09:57] schestowitz[TR] he common general knowledge in mind, and based on the application as originally filed, would derive said effect as being encompassed by the technical teaching and embodied by the same originally disclosed invention."

Bearing this in mind, it appears utterly inconsistent for the EPO to require any substantive adaptation of the description. Such amendments cannot have any effect if the basis for the assessment of inven [09:57] schestowitz[TR] tive step is and remains only the application as originally filed, as strongly emphasised in G 2/21.

Frankly, what is the name of the game for the EPO practice ? Is it to weigh in on the interpretation of claims and the assessment of equivalents by national courts, as acknowledged in T 1024/18 and in the EPO press release of July 2022 ? As pointed out by several previous comments and the established case law of the BOAs, [09:57] schestowitz[TR] this is outside the EPOs remit.

Besides, assuming an amendment of the description is effective in the context of judiciary proceedings implies that it has the potential to alter the interpretation of the claims by the court. But this in itself can be held inadmissible new matter by the court (see UK MPP section 76).



[09:57] schestowitz[TR] "the only patent expert in the world"..."supporting the new practice of the EPO" ;) [09:57] -TechBytesBot/#techbytes-ipkitten.blogspot.com | G 2/21: Is the technical effect embodied by the invention as originally disclosed? - The IPKat ● Mar 26 [11:25] *psydruid (~psydruid@jevhxkzmtrbww.irc) has left #techbytes [11:28] *psydruid (~psydruid@jevhxkzmtrbww.irc) has joined #techbytes ● Mar 26 [12:09] *psydroid2 (~psydroid@u8ftxtfux23wk.irc) has joined #techbytes [12:53] *GNUmoon2 (~GNUmoon@dafzvvhavnewq.irc) has joined #techbytes ● Mar 26 [14:12] schestowitz[TR]
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    This [Internet] uptime indicator reduces frustration
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    This device has only one purpose: to indicate when its [Internet] connection is functioning or not. All it does is ping Google.com and checks if it gets a response. If it does, the device lights up in green to show everyone in the vicinity that the internet is working. If it doesnt, it lights up in red.

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    • [14:12] schestowitz[TR] [14:12] -TechBytesBot/#techbytes-blog.arduino.cc | This internet uptime indicator reduces frustration | Arduino Blog [14:12] schestowitz[TR]
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    Framework Laptop 13th Gen Improves on Every Aspect, Announces New Laptop with Upgradable GPU
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    I love the fact that they are not charging premium while being extremely DIY and repair-friendly.

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    I fixed my 1991 386SX-16/20CN motherboard!
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    This is a post about a beloved old motherboard, and my journey to get it working. I love seeing the process of people on YouTube doing this, so I thought Id try something similar by live blogging the experience. It was a lot of fun :).

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    Arduino UNO R4 is a giant leap forward for an open source community of millions
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    In details, the new Arduino UNO R4 features the Renesas RA4M1 (Arm Cortex-M4) running at 48MHz, which provides a 3x increase over the UNO R3. In addition to that, SRAM went from 2kB to 32kB, and flash memory went from 32kB to 256kB to accommodate more complex projects. In addition, following the requests from the community, the USB port was upgraded to the USB-C and maximum power supply v [14:13] schestowitz[TR] oltage was increased to 24V with an improved thermal design. The board provides a CAN bus, which allows users to minimize wiring and execute different tasks in parallel by connecting multiple shields. Finally, the new board includes a 12-bit analog DAC.

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    • [14:13] -TechBytesBot/#techbytes-blog.arduino.cc | Arduino UNO R4 is a giant leap forward for an open source community of millions | Arduino Blog [14:17] schestowitz[TR]
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    Tuba is a Magnificent New Mastodon App for Linux
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    Strictly speaking Tuba is a Fediverse client that is compatible with Akkoma, GoToSocial, Pixelfed, and other Fediverse implementations.

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    • [14:17] -TechBytesBot/#techbytes-www.omglinux.com | Tuba is a Magnificent New Mastodon App for Linux - OMG! Linux [14:26] schestowitz[TR]
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    Free software during wartime
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    Just over 27 years ago, John Perry Barlow's declaration of the independence of Cyberspace claimed that governments ""have no sovereignty"" over the networked world. In 2023, we have ample reason to know better than that, but we still expect the free-software community to be left alone by the affairs of governments much of the time. A couple of recent episodes related to the war in Ukraine a [14:26] schestowitz[TR] re making it clear that there are limits to our independence.

    [14:26] schestowitz[TR]

    The free-software community has, indeed, proved resilient to many events in the wider world. The dotcom bust mostly brought an end to the silliness and accelerated our work toward useful goals. The September 11 attacks (and the horrors that followed) had little direct effect on the community; the same is true of the 2008 economic crisis. The pandemic closed down much of the world, but seemi [14:26] schestowitz[TR] ngly sped up free-software development. Even the war in Ukraine and the upheavals around it have, apparently, barely touched our community. All of these events had (and are still having) horrific consequences for many of the people involved, but the development community as a whole was often able to carry on as if many of the world's troubles were taking place in another universe.

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    • [14:26] schestowitz[TR] [14:26] -TechBytesBot/#techbytes-Free software during wartime [LWN.net] [14:29] schestowitz[TR]
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    Exclusive: We Spoke to Stop Cop City Activists Facing Terrorism Charges
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    When Vienna Forrest first heard she was being charged under Georgias domestic terrorism statute last December, she thought it was some kind of cruel joke. I was wearing camo in a public park, camping with my friends, she told Motherboard. [Terrorism charges] are not really what you expect to come out of that.

    [14:29] schestowitz[TR]

    The terrorism charge stemmed from her alleged involvement in the Defend the Atlanta Forest (DTAF) movement, a group which her arrest warrant claims is classified by the Department of Homeland Security (DHS) as a domestic violent extremist group. The DHS has since publicly refuted the claim that it lists DTAF as a terrorist organization, but prosecutors in Dekalb County have continued to charg [14:29] schestowitz[TR] e people allegedly involved with the movement under the states terrorism statuteincluding attendees of a music festival that recently took place in the forest.

    So far, 42 people in total have been charged with domestic terrorism, which carries a minimum five-year and maximum 35-year prison sentence.

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