IRC: #techbytes @ Techrights IRC Network: Thursday, July 27, 2023

schestowitz

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schestowitz

<h5><a href="https://www.howtoforge.com/guide-to-set-up-chrony-as-ntp-server-and-client-on-almalinux-9/">Guide to Set up Chrony as NTP Server and Client on AlmaLinux 9</a></h5>

schestowitz

schestowitz

Chrony implements the NTP or Network Time Protocol and is an alternative to other applications such as up. Chrony can be run on Unix-like operating systems, released under the GNU GPL v2. Chrony is used as the default NTP server software for some Linux distributions and is also available for multiple Linux distributions.

schestowitz

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schestowitz

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-TechBytesBot/#techbytes-www.howtoforge.com | Guide to Set up Chrony as NTP Server and Client on AlmaLinux 9

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http://ipkitten.blogspot.com/2023/07/board-of-appeal-poised-on-brink-of.html?showComment=1690449574081#c402955280805016546

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Jul 27 20:40

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*Topic for #techbytes set by schestowitz!~roy@haii6za73zabc.irc at Tue Jun 1 20:21:34 2021

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Jul 27 20:41

schestowitz[TR]

schestowitz[TR]

"There is an extensive discussion here with regard to the effects of marking certain embodiments as being “outside the scope of the claims”. One of those effects is a finding of added matter (see [167]-[188]); there is also a finding of extension of protection (analogous to Art 123(3) EPC) (see [189]-[201]). Note also that the general issue of claim construction in light of “disclaimed” subject-matter in the specification wa

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s discussed at [117]-[120]. Based on my reading, the issues there arose from post-grant amendments to the specification (the “C” specification, which was amended using the procedure under s.27 of the Patents Act 1977) rather than from amendments made prior to grant (the “B” specification as granted by the EPO), but there does not seem to be any reason why – as a general rule applicable in other cases too – the

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same principles would not also affect claim interpretation in light of the “B” vs. “A” specifications. I would be interested to know if there are other cases, especially from other jurisdictions, where similar discussions have played a role. There are commenters on this blog who often claim that adaptation of the description in no way ties the hands of the courts in determining the scope of the claim,

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be it for literal infringement or infringement by equivalents. This seems to me to be a "cake eating and cake having" position - how can it be that the claims are intolerably unclear unless the description is amended (necessarily implying that the description does influence the meaning of the claim), but somehow, at the same time, that amendment has no effect whatsoever on claim interpretation in post-grant proceedings?<br

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/> In any event, we now have at least one case from a respected national court which suggests that adaptation of the description can indeed affect the interpretation of the claims, including but not limited to causing added matter issues which might not have arisen if the description had been left unmolested."

-TechBytesBot/#techbytes-ipkitten.blogspot.com | Board of Appeal poised on the brink of a referral on description amendments (T 56/21) - The IPKat

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"nteresting is why other jurisdictions see no need for strict conforming of the description. Perhaps because the courts in those other jurisdictions find it helpful to have a pristine and 100% reliable statement of what the inventor/applicant disclosed to the Patent Office on the precise date of the claim in suit. Validity and priority contests are based on the date of the claim (which is not the date of allowance or date of grant)

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. A description purportedly in "support" of that claim should have the same date as the claim, shouldn't it?<"

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"Having read the three comments thus far, the thought strikes me that, indeed, what we are crying out for is a declaration from the EBA as to how under the EPC one is to go about the exercise of construing claim 1 of the granted European patent and, in particular, how much use is to be made of the description when performing that exercise. Once that declaration is handed down , it will take much of the heat out of the present dabat

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e on conforming the description. On the grapevine, one hears that the EPO obsession with conforming the description ever so strictly has its roots in the notorious pemetrexed case litigated all over Europe. After that, some people within the EPO thought that the national courts needed educating, how to construe a claim correctly, in the light of the description. OK then, EBA, do us all a favour. Man up, and tell us (and m

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ore importantly all the national courts that are apparently so badly in need of an education) how we should do the job. Much to be preferred to dodging the issue with protestations of "not my job, mate" and then, on the sly, ratcheting up ever higher the degree to which the description MUST be put into strict "conformity" before the EPO can even contemplate issuing a grant decision. The patent statute

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in the USA also requires the claims to be construed in the light of the description, but they go about that exercise very differently. So what is the proper way under the EPC. I think it's time the EBA told us, don't you?"

schestowitz[TR]

"I would add G 4/19 to the political (and legally unfounded) decisions of the EBoA. At any rate: 1. "If features are presented as optional in the set of claims as filed or in the description, and they end up in the independent claim" there is no need to adapt the description. Do you really think that one can argue in infringement proceedings that since a feature is mentioned as optional in the descrip

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tion, then this feature can be omitted from the independent claim ? 2. "If certain embodiments could have been representative of the invention as claimed at the time of filing, but are no longer so after examination, it seems obvious to me that I cannot continue to claim in the description that these embodiments are still representative of the invention". Ok but there is no need do delete these embodiments, sinc

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e if they are not covered by the claims they are not representative of the (claimed) invention. An embodiment or example should be left unamended in the description unless it is explicitly stated that this embodiment or example is covered by the claims. 3. "Wanting to keep claim-like clauses in the description on the pretext that they may contain information that could be useful later during the life of the granted p

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atent, shows one thing: the description has not been drafted correctly, because this information should be in the body of the description." Here I completely disagree, claim-like clauses are not claims but still part of the description, just written in a more structured manner than the rest. They can be useful in limitation proceedings at the EPO or in court, to easily limit a claim without objections of Art. 123(2). The EPC do

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es not forbid at all to add at the end of the description these clauses: "The device of claim 1 including [A]. The device of claim 1 including [B]", and so on. It seems to me that the EPO does not like these clauses just because it cannot get some extra money in claims fees. However, in a democratic world, "everything which is not forbidden is allowed"."

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"Plausibility and lack of implausibility are clearly different tests. If the requirement is plausibility, there must be some non-zero reason or evidence in support of plausibility. It would normally be the patentee (or the patent) who has to show this. If the requirement is lack of implausibility, then it is satisfied unless there is some non-zero reason or evidence to doubt plausibility. It would normally be t

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he opponent (or the EPO) who has to show this. The EBA can write that these requirements are identical, or that they always lead to the same outcome, but that does not make it so. The EBA was given a question and has effectively refused to answer it. If the EBA took the view that the plausibilty issue is too intertwined with the specific technical field to say anything sensible about it, they should have declar

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ed the referral inadmissible ("not a point of law").'

schestowitz[TR]

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I agree with you on the need to amend the description in certain cases. This has always been a requirement in the EPO. The boards have ordered in thousands of cases that a patent be granted on a particular set of claims and "a description and drawings to be adapted thereto" or something to that effect. Board 3.3.04 still issues such decisions (e.g. T 784/19, same legal member). Are all these decisions wrong? No. <br /

schestowitz[TR]

>Regarding "it must be accepted that certain embodiments are declared not to be representative of the invention as claimed", in my view it should be enough to avoid suggesting that they do fall within the scope of the claims (perhaps we agree on this, too). I believe the Guidelines now require an explicit statement that certain subject-matter is outside the claims. This goes too far, and it could lead to A.123(2)/(3) trap

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situations.

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"Part 2 On the other hand, it should not come as surprise that Art 69 applies to the patent as granted and not to the application as filed. The examination procedure ends up with a fiction as its result is actually to establish the patent as it should have been originally filed. There actually to lines of case law when it comes to the application of Art 69 and Art 1 of the protocol before the EPO. Some b

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oards want a systematic recourse to the description with the possibility to always interpret the claims, even when it comes to Art 123(2), e.g. T 1473/19, T 1167/13 or T 2773/18. All those decisions go back to T 16/87. Other boards want to limit the recourse to the description to very specific situations, one of those being the application of Art 123(3). This line of case law is exemplified by T 169/20, T 821/20, T169/20,

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T 1127/16 or T 30/17. All those decisions all go back to T 1279/04. With the reservation expressed above, a referral to the EBA on this point seems more important than on the adaptation of the description."

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"Part 1 It is interesting to note that the communication of the board was drafted by the same legal member who had already worked on the famous T 1989/18 decision with the same applicant. It was therefore possible to expect a repeat of what happened in T 1989/18. The only difference is that now the same legal member is suggesting a referral to the EBA. It is conceivable that the legal member would like a referral to

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the EBA, but does not dare to request it directly. If the applicant gives a positive answer to the question indirectly asked, the likelihood of a referral to the EBA will increase. A referral to the EBA may not be the best solution. On the one hand, the EBA may, as it has often done, rewrite the questions or interpret them in such a way that a certain desired result is obtained. In recent years, the GCR has allowed itsel

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f to take decisions of a rather political nature, cf. G 2/19, G 3/19, G 1/21, or which serve little purpose given the abstruse nature of the answer. Cf. G 2/21. I would therefore be wary of a referral to the GCR in its composition of recent years. Knowing what the top management of the EPO wants, cf. G 3/19 or G 1/21, and given the modification of directives F-IV, 4.3, the result is not really in doubt. As fa

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r as the adaptation of the description is concerned, let’s stay sensible. . If features are presented as optional in the set of claims as filed or in the description, and they end up in the independent claim, whether under examination or in opposition, it seems obvious to me that we cannot continue to claim in the description that these features are still optional. If certain embodiments could have been rep

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resentative of the invention as claimed at the time of filing, but are no longer so after examination, it seems obvious to me that I cannot continue to claim in the description that these embodiments are still representative of the invention. Wanting to keep claim-like clauses in the description on the pretext that they may contain information that could be useful later during the life of the granted patent, shows one thi

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ng: the description has not been drafted correctly, because this information should be in the body of the description. It has never been forbidden to transfer information contained in the original claims but absent from the original description into the description. I would be rather inclined to say that some applicants and representatives want to eat their cake and have it. Have limited claims, but to leave the descript

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ion so that a broader interpretation of those claims is possible in case of litigation. Deleting entire sections of the description can be tricky, and it is understandable that some representatives are reluctant to do so, but then it must be accepted that certain embodiments are declared not to be representative of the invention as claimed. If the description is no longer to be amended, it should be made comp

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ulsory to consult the examination or opposition file in the event of litigation before a board of appeal of the EPO, a national or supranational court. Only then will it be possible to detect inconsistencies between the claims and the description which were willingly left in the description. "

schestowitz[TR]

"I would have liked to have seen a clearer representation of the bottle, but the Decision seems sound. Trade marks should not be used instead of patents"

☞ http://ipkitten.blogspot.com/2023/07/3d-bottle-trade-mark-distinctive-but.html?showComment=1690301333389#c6899372067379698019

schestowitz[TR]