●● IRC: #techbytes @ FreeNode: Monday, November 30, 2020 ●● ● Nov 30 [00:16] schestowitz http://patentblog.kluweriplaw.com/2020/11/24/the-epos-ride-from-patentamt-to-oktroybureau/ [00:16] -TechBytesBot/#techbytes-patentblog.kluweriplaw.com | The EPO's Ride from Patentamt to Oktroybureau - Kluwer Patent Blog [00:16] schestowitz " [00:16] schestowitz Concerned observer [00:16] schestowitz November 24, 2020 at 5:34 pm [00:16] schestowitz For years, professional representatives were told by the Boards of Appeal that Articles 113 and 116 EPC did not provide any absolute right to VICO oral proceedings. So what has changed? And where is the legal basis for what is undoubtedly a novel interpretation of the EPC, namely that Articles 113 and 116 EPC now will not provide any absolute right to in-person oral proceedings? [00:16] schestowitz As with the Decisions of the EPO President in connection with VICOs for examination and opposition oral proceedings, this is nothing other than law-making by executive decree. The fact that the AC is involved in passing any new articles of the RPBA does not help either. This is because they are an ADMINISTRATIVE Council, not a legislative body though, based upon the decision in G 3/19, one could be forgiven for feeling that the line [00:16] schestowitz between the two has been somewhat blurred, if not entirely destroyed. [00:16] schestowitz And to which judicial instance can you complain if you believe that a decision of the Boards of Appeal to conduct VICO oral proceedings infringes your right to a fair trial (according to Article 6 ECHR)? To my knowledge, unless there is a change to the statutory definitions of the grounds for submitting petitions for review, the Enlarged Board is almost certain to dismiss any such complaints as inadmissible which strikes me as being [00:16] schestowitz contrary to the principles of justice as enshrined in the ECHR. [00:16] schestowitz Looking forward to the beach and the daiquiris [00:16] schestowitz November 24, 2020 at 7:04 pm [00:16] schestowitz While Im also somewhat miffed about the manner and language of the Presidents announcement (access to justicehah), I must also say that this is an inevitable development, which should be seized by the patent profession as an opportunity rather than a hassle. [00:16] schestowitz Having numerous friends in both towns, I enjoy trips to Munich and The Hague as much as anybody else, but its undeniable that all that travel to attend oral proceedings comes at a cost, first of all to the client, but also to the climate and to our personal lives and families. It also gives an unfair advantage to the parties and representatives located close to the two cities, to the detriment of those living elsewhere, in particular [00:16] schestowitz in less-developed regions of Europe. [00:16] schestowitz Moreover, while videoconferencing has its limits, properly used it could also open new opportunities to present a case even more clearly and persuasively than in person, using e.g. audiovisual tools, computer animations, etc. It will require learning and adaptation, but any good professional should be ready to learn and adapt to new circumstances. [00:16] schestowitz Anyway, I look forward to be able to attend oral proceedings in the future from any of the sunniest islands belonging to EPO member states [00:16] schestowitz Concerned observer [00:16] schestowitz November 25, 2020 at 11:25 am [00:16] schestowitz Hmmn. Nobody is saying that the OPTION to use VICOs before the Boards is unwelcome. Indeed, many patent professionals have been crying out for years for the Boards to make this option available. The problem comes when VICOs are mandatory, or where they can be imposed against the wishes of a party to the proceedings. [00:16] schestowitz It is understandable that the Boards would want to have a way to deal with parties that refuse their consent to VICOs for purely tactical (delaying) purposes. However, with any luck, the end of the pandemic is now in sight. This means that soon, most likely before the end of 2021, the refusal of a party to grant consent to VICOs will not result in the date of oral proceedings being pushed back. Also, in the long run, it is perfectly [00:16] schestowitz possible that a significant number of parties will VOLUNTARILY request VICOs especially if they agree with you regarding the relative advantages of that mode of conducting oral proceedings. [00:16] schestowitz It therefore reasonable to ask why now, when we are potentially on the cusp of a gradual return to normality, the Boards would to attempt to implement a rule that PERMANENTLY grants them the ability to impose VICOs against the wishes of one or more parties to the proceedings. This seems both unnecessary and inappropriate in the circumstances. [00:16] schestowitz If one were a cynic then one might speculate that the motivation for this change is a desire on the part of the EPO to benefit from the cost savings that can be made by no longer having to host any more than a handful of in-person oral proceedings per year. Combined with a vast increase in the numbers of EPO employees working from home (which it seems the EPO is keen to also make permanent), the potential for shedding significant [00:16] schestowitz costs for office space are glaringly evident. But remember that the EPO already makes a huge surplus each year and is also actively working to reduce its overheads in other ways, mostly by reducing staffing costs. So there is really no need for the EPO to cut costs associated with oral proceedings and certainly not by imposing rules that bite the (applicant) hand that feeds it. [00:16] schestowitz Of course, we do not know the outcome of the consultation procedure. Indeed, it is perhaps possible that, against all of my expectations (and also against all logic and common sense), the vast majority of the profession will welcome with open arms the move to compulsory VICOs. However, it will be interesting to see how the EPO responds in the more likely scenario that the profession instead strongly advocates for the use of VICOs to [00:16] schestowitz remain optional. That is, with no majority support from users and no objective need to cut costs by forcing the use of VICOs, will the EPO still press ahead regardless? And if so, cui bono? [00:16] schestowitz LightBlue [00:16] schestowitz November 25, 2020 at 11:33 am [00:16] schestowitz With online submissions being the norm and with the possibility of communications being served electronically, oral proceedings were the one aspect where having a local representative was advantageous in view of the costs of travel. With all aspects of the procedure now being performed via the internet, can we expect foreign (US!) firms to expand their practices before the EPO, acquiring a tame representative? [00:16] schestowitz Concerned observer [00:17] schestowitz November 25, 2020 at 12:48 pm [00:17] schestowitz I forgot to add that at least the UK Court of Appeal believes that the principles of access to justice demand that a party must be able to appear in person in order to effectively argue their case. The UK Supreme Court is now considering whether an exception to this rule can be made in the highly unusual circumstances where the in-person appearance of a party arguably presents a risk to national security: [00:17] schestowitz https://www.supremecourt.uk/cases/uksc-2020-0157.html [00:17] -TechBytesBot/#techbytes-www.supremecourt.uk | R (on the application of Begum) (Respondent) v Secretary of State for the Home Department (Appellant) - The Supreme Court [00:17] schestowitz Clearly, the appearance of parties at proceedings before the Boards of Appeal is extremely unlikely to present any kind of security risk. So why should the standards of justice at the EPO depart so wildly from those before the UK courts? In this respect, it is disappointing to see that CIPAs President has reacted enthusiastically to the EPOs proposals: [00:17] schestowitz https://www.cipa.org.uk/policy-and-news/latest-news/cipa-welcomes-extension-of-videoconferencing-at-the-epo/ [00:17] schestowitz The reason for my disappointment is that it is unclear to what extent the Presidents statement reflects the views of CIPAs membership. I also have a sneaking suspicion that the opportunity for UK professionals to level the playing field against competitors located in or around Munich might make them more inclined to overlook the glaring lack of legal basis for the EPOs proposals. Hmmmmn (again). [00:17] -TechBytesBot/#techbytes-www.cipa.org.uk | CIPA welcomes extension of videoconferencing at the EPO | Chartered Institute of Patent Attorneys [00:17] schestowitz MaxDrei [00:17] schestowitz November 26, 2020 at 6:30 pm [00:17] schestowitz Good comment, Concerned. My immediate thought in reply is that CIPAs seeming nonchalance about the etherialisation of oral proceedings at the EPO could be explained partly by what is at stake in such oral proceedings. The TBA is not going to be enjoining anybody, not putting anybody out of work, not shutting down any business. Rather, the only issue at stake is whether a particular patent gets revoked, narrowed or upheld. [00:17] schestowitz Despite what some limited-horizon patent attorneys suppose, in an era of concern about leaching away of the precious Rule of Law, this is NOT the crux issue. It is the courts, not the EPO where the most important human rights are debated. [00:17] schestowitz I guess this takes us straight back to 1973, when the nations of Europe happily set up a communal patent granting system but baulked at setting up a communal patent rights enforcement regime. Were their reservations well-founded, back then? The current UPC storm rather suggests that they were. [00:17] schestowitz Camparinos [00:17] schestowitz November 24, 2020 at 8:09 pm [00:17] schestowitz How many patents are there over videoconferencing? [00:17] schestowitz Even the EPO cant tell if it is a legal solution that respects all the patents they granted themselves. [00:17] schestowitz The Convention Watchdog [00:17] schestowitz November 24, 2020 at 8:23 pm [00:17] schestowitz It is obvious that the EPO aims at making working at home a permanent feature of staff administration. Experience also shows that the Board of Appeals has followed the approach taken by the Presdent of the EPO in administrative matters. For example, the Boards have the same carreer system as the rest of the EPO: re-appointment on the basis of reporting which is unique for members of a judiciary. Why taking a different course for VICOs [00:17] schestowitz which are endangering the collegiate system. Honi soit qui mal y pense . [00:17] schestowitz The girl from Ipanema [00:17] schestowitz November 24, 2020 at 11:00 pm [00:17] schestowitz Being a board member myself, the idea that worries me most is that before long the boards as such will no longer meet in a single location. Nowadays we often have lively discussions when deliberating, which makes the final decision much more reliable (no stone being left unturned), but this will not be easy when we see each other behind a screen, with all the inevitable technical trouble that comes along (and we have had some of that [00:17] schestowitz already in our VICOs, believe me). Now if the deliberation process suffers, the very heart of the appeal proceedings suffers. I fear that the quality of our decisions will decrease if the boards do not meet in person, face to face. Oh I know that the powers that be do not really care about quality, and that they see that VICOs can be so much cheaper. But in the end, our raison dtre is providing good, well-founded and fair decisions [00:17] schestowitz and that will be made more difficult to achieve. [00:17] schestowitz Fragender [00:17] schestowitz November 25, 2020 at 8:58 am [00:17] schestowitz When reading the EPO is using Zoom I was surprised. [00:17] schestowitz Of course, th EPO is immune, so they can use whatever they want [00:17] schestowitz But, since Zoom is critized for not following the General Data Protection Regulation, for lack of encryption etc., I was wondering: assume you would like to prevent a VICO, would it be possible to send your opponent a cease-and-desist-letter (Abmahnung) not to use Zoom professionally? [00:17] schestowitz Are patent attorneys, at least in Germany, bound by their professional duties not to use such a defective tool? [00:17] schestowitz Well, I guess Mr C couldnt care less [00:17] schestowitz NordicObserver [00:17] schestowitz November 25, 2020 at 9:46 am [00:17] schestowitz Dear girl from Ipanema: but this very argument already applies to the EPO examining divisions! The semi-permanent homeworking that is now in place is, in effect, the death of lively discussions within the EDs. Go and call some of your colleagues in DG1 and ask how often they meet with their fellow examiners, how often do their teams still meet If my calls with different examiners in recent weeks are anything to go by, the answer [00:17] schestowitz is not positive. So what does that imply for the quality of the examination process? [00:17] schestowitz Of course we are faced with an ongoing pandemic and the homeworking schedule is a necessary response. But that carries with it a responsability to maintain quality standards and stimulating the EDs to carry out their work normally as much as possible. If this is not happening, then management has to take responsibility and act to improve that situation. [00:17] schestowitz francis hagel [00:17] schestowitz November 26, 2020 at 3:18 pm [00:17] schestowitz A serious concern with homeworking would arise if examiners can go back to their home country instead of staying in a location close to their EPO office, since this hinders meeting with their colleagues and management and compromise the working environment at the EPO esp. on-the-spot training for junior examiners. Has anybody information about this ? [00:17] schestowitz Needless to say, the concern would be still more serious if this was allowed to continue beyond the Covid situation. [00:18] schestowitz Concerned Examiner [00:18] schestowitz November 27, 2020 at 10:42 am [00:18] schestowitz At least until the end of September 2021 it is now possible to work from any member state. I know some colleagues that havent been in the Office since April, e.g. working from Spain. [00:18] schestowitz Furthermore, it appears that the EPO considers to make this a permanent arrangement, judging from a recent survey on that matter among staff. [00:18] schestowitz Regarding the work within the examining divisions, I can confirm that consultations with members who dont come to the Office premises anymore are reduced and that this may well affect quality in a negative way. [00:18] schestowitz Lastly I have to say, that performing Oral Proceedings via ViCo has its up- and downsides. For simple cases it is very convenient, whereas in more complex cases the discussion with the division over the pretty unreliable Skype or MsTeams links becomes difficult, leading to a more superficial treatment of the requests. A video meeting just cannot adequately replace a real-life face-to-face discussion in my opinion. Just try to [00:18] schestowitz have a discussion with someone having a bad microphone, low volume and echos [00:18] schestowitz Concerned observer [00:18] schestowitz November 27, 2020 at 3:31 pm [00:18] schestowitz The EPOs direction of travel is easy to see. Any cost-cutting measure for which a justification can be cobbled together seems to be on the table, regardless of its impact upon the fitness of the EPO for its primary purpose of examining and granting patents. [00:18] schestowitz What might be next? If we already have examiners working from their home countries and/or working upon the basis of temporary contracts, then what about full-on outsourcing of tasks currently assigned to EPO employees? Could we see the gig economy coming to the EPO soon? Is there anything in the EPC to prevent this? Even if there is, would this make a difference in view of the dynamic interpretation approach adopted in [00:18] schestowitz G 3/19? [00:18] schestowitz The possibilities opened up by allowing oral proceedings to be conducted by VICOs are potentially exciting. However, we should not overlook the limitations of the current technological solutions, nor ignore the need for new (and important) legal safeguards if VICO oral proceedings are to become commonplace. Most importantly, we should not forget the importance of strict adherence to the rule of law, which, in this case, [00:18] schestowitz requires a robust legal basis for what will undoubtedly amount to a curtailment of the rights of parties to oral proceedings before the EPO. [00:18] schestowitz In essence, the Boards (and, for that matter, also the first instance departments of the EPO) should learn to walk before they try to run when it comes to the use of VICOs. There are no prizes to be won for issuing the first decision to contravene a partys right to a fair trial. At least the Boards make a show of considering the issues, by conducting the consultation that closes today. However, I cannot help but think [00:18] schestowitz that the result is a foregone conclusion, as why else would the Boards set an extraordinarily short response period AND indicate that they can adapt their practice BEFORE the revised RPBA come into force? [00:18] schestowitz These days it seems that, even in Europe, adherence to the rule of law is rapidly becoming more the exception than the rule. I cannot help but feel that even some of those currently driving this trend will end up feeling like Joni Mitchell when she wrote Big yellow taxi as it really is true that you often do not know the value of what you have until it is gone. [00:18] schestowitz NordicObserver [00:18] schestowitz November 25, 2020 at 9:50 am [00:18] schestowitz My bad, forgot to add compliments to the author: excellent and entertaining article Thorsen, I always look forward to read your contributions. [00:18] schestowitz Patent robot [00:18] schestowitz November 25, 2020 at 10:48 am [00:18] schestowitz I attended several remote hearings and I think that the advantages of videoconferences outweigh the disadvantages, especially at the EPO, where hearings are extremely lengthy and involve parties and representatives from all over the world. [00:18] schestowitz At least until the end of the Covid emergency (hopefully within the next 10 years) hearings should be always held by videoconference at the EPO. [00:18] schestowitz MaxDrei [00:18] schestowitz November 25, 2020 at 2:19 pm [00:18] schestowitz My viewpoint is that of a UK patent attorney resident in Germany. I contrast Thorstens take with the enthusiasm of CIPA, on their offshore island, here: [00:18] schestowitz https://www.cipa.org.uk/policy-and-news/latest-news/cipa-welcomes-extension-of-videoconferencing-at-the-epo/ [00:18] schestowitz Presumably, the attitude of European patent attorneys based in such Munich-remote Member States as Portugal (home for the current EPO President), Finland and Poland will be just as enthusiastic. Lets be honest, when it comes to competition for work from clients outside Europe, those attorney firms not resident next door to an EPO building ought not to be at a systemic unfair disadvantage. [00:18] -TechBytesBot/#techbytes-www.cipa.org.uk | CIPA welcomes extension of videoconferencing at the EPO | Chartered Institute of Patent Attorneys [00:18] schestowitz For me (who qualified in the 1970s) the thing that has carried the EPO along to the worlds best and clearest case law on patentability/ validity is its unique 3-person Division, whether ED or OD. I read with mounting alarm how the unremitting efforts of EPO management to improve quality is turning these Divisions into a non-team of one case worker and two rubber-stampers. This is a disaster for customer confidence, customer [00:18] schestowitz satisfaction, legal certainty and the EPOs reputation for quality. Any EPO attorney you ask will tell you how vital it is, to clear and thorough case analysis, that the case be discussed with a colleague in the office before any client is given a considered opinion. Anybody who has read Thinking Fast, Thinking Slow or its development in the book by Jonathan Haidt The Righteous Mind will see why this is so. The analogy is [00:18] schestowitz with the elephant and its rider. The rider is the analytical (slow thinking) mind, that sees more consequences than the elephants (fast thinking) brain which jumps to conclusions. Think about it: once an elephant has decided to charge in a particular direction, the rider is powerless. The only thing that will stop a charge in error, in the wrong direction, is two more elephants, equally forceful, one on each side of the rogue [00:18] schestowitz elephant. [00:18] schestowitz So too with a rogue Patent Office Examiner, charging in the wrong direction. No amount of attorney argument will do any good. As the books explain, the rider, the slow-thinking analytical brain, is an absolute expert at finding reasons why the wrong direction is in fact the right direction. To get to a sound Decision, reliably and consistently, you just have to have two other Members in the Division. Not only that, they have to be [00:18] schestowitz equally forceful, equally engaged. [00:18] schestowitz OK you say. What about patent litigation in England in front of a single patent judge. Space does not permit me to explain here why thats utterly different. [00:18] schestowitz Back to basics [00:18] schestowitz November 25, 2020 at 3:54 pm [00:18] schestowitz The Boards of Appeal regularly invoke the Vienna Convention on the Law of Treaties (VCLT) when it comes to deciding on how to interpret the EPC. [00:18] schestowitz The interpretation of Art 116 given in the explanatory note for the proposal of Art 15a RPBA is in manifest contradiction with the VCLT in its Art 31 and 32. According to the VCLT, a treaty has to be interpreted in good faith and if this interpretation should not lead to a result that is manifestly absurd or unreasonable. [00:19] schestowitz The mere assertion that neither Art 116 nor any other article of the EPC or RPCR 2020 stipulates that the parties to the proceedings, their representatives or the members of the board must be physically present in the room, amounts to ignoring the philosophy underlying Art 116. [00:19] schestowitz A reasonable interpretation of the term oral proceedings can only mean the physical presence of the parties before the EPOs decision-making body. [00:19] schestowitz The terms oral proceedings are far from being ambiguous or obscure, let alone that their interpretation in good faith leads to a result that is manifestly absurd or unreasonable. [00:19] schestowitz Nowhere in the travaux prparatoires to Art. 116 it has ever been envisaged that the parties are not physically present before the deciding body, and that for instance it could be held by phone. A videoconference is nothing more than a telephone conversation during which the parties can see each other. [00:19] schestowitz What is said here applies mutatis mutandis to oral proceedings before examining and opposition divisions. [00:19] schestowitz Neither the Chairman of Boards, nor the Chairman of the BOAC, and even less the president of the EPO, have the power to amend the EPC in the way they are attempting to do. They simply lack the legitimacy to do so. The same applies to the AC. [00:19] schestowitz That in a period like the pandemic solutions have to be envisaged is not at stake. In exceptional situations, exceptional solutions can be envisaged, but as soon as the exceptional situation is over, then the exception should be stopped and the normal situation be re-established. [00:19] schestowitz In any case, the possibility of holding oral proceedings by videoconference should be left to the parties and not decided ex-officio, even in exceptional circumstances. As explained by Mr Bausch, the parties also have an interest to come to decisions and not unduly keep their files open. Once a party is opponent, once it is proprietor so that a fair balance can be stricken between contradictory requirements. [00:19] schestowitz Whilst I can have some understanding of Max Dreis plea about representatives sitting at a distance from The Hague or Munich, I cannot fundamentally agree with him. When he speaks about the three members of divisions of first instance, I have to take away his illusions. See below. [00:19] schestowitz It is not for the Office and its Boards of Appeal to decide what is good for the parties. After all, the income of the Office stems from the contributions of the parties, so that the parties must have a say about the way they are treated. Presently it is with morgue and disdain. [00:19] schestowitz Under the pretext of the pandemic situation, both the EPO and the Boards want manifestly to dematerialise the EPO. This would in the long term allow to transfer its duties to national patent offices and get read of staff which is not as docile as the management would like to. [00:19] schestowitz If you think that there are discussions within examining or opposition divisions, please abandon this idyllic vision. In vast areas of the EPO the three men divisions of first instance are long time gone and only exist on paper. In some areas there have even been oral instructions that if the first member has signed, the two other have to sign as well. Consulting the register recently, I even came across a Form 2035 in which only the [00:19] schestowitz first member had signed! If you take on top the difficulties imposed by videoconferencing among members of divisions, this trend has rather increased. [00:19] schestowitz By isolating its staff, the EPO gains even more influence on it and concerted actions would be made more or less impossible. What a perspective for the head of (anti)personnel! [00:19] schestowitz That by dematerialising the office it would then be possible to even sell some buildings has been clearly envisaged by the management. [00:19] schestowitz The role of the EPO and its Boards is not to play Monopoly but to offer an acceptable service to its users. Why was it then necessary to invest in rented accommodation for the boards when other buildings of the EPO are allegedly empty and can be sold? [00:19] schestowitz By the way, the EPO wanted to sell the latest buildings of the EPO (BT8) on the other side of Grasserstrae, but the city of Munich refused as it had a contractual say in the matter. [00:19] schestowitz For a while the EPO has become the playground of would be managers only having in mind juicy bonuses and relying on management methods from the 19th century. The EPO plays a big role in European IP, and it should not be left to the incompetent amateurs presently at its helm. If anything goes wrong, they can always rely on their immunity.. [00:19] schestowitz The fathers of the EPC must be turning over at high speed in their graves. [00:19] schestowitz Attentive Observer [00:19] schestowitz November 26, 2020 at 10:41 am [00:19] schestowitz In Decision No. 2020-011 of 9 July 2020, the Defender of the Rights of the French Republic (Dfenseur des Droits) concluded that the use of videoconferences constitutes a restriction on the right to a fair trial; it must remain the exception and be surrounded by guarantees. [00:19] schestowitz Is there anything to add? If the parties agree I do not see a problem. Imposed ex-officio the answer is a clear no, be it in first instance or in appeal. During the pandemic period, it could be envisaged, but certainly not after the pandemic period has come to an end. [00:19] schestowitz That some representatives, like the members of CIPA, want to gain ground over representatives residing in Munich or The Hague is understandable, but should not be determining when it comes to impose oral proceedings in form of videoconferences before the EPO. [00:19] schestowitz Some British firms of representatives have even actively advertised on LinkedIn their capabilities in matter of oral proceedings in form of videoconferences before the EPO. The position of CIPA, see the link in Max Dreis comment, does thus not come as a surprise. [00:19] schestowitz However such a deep amendment of the EPC has to be the result of a Diplomatic Conference or at least of a common decision of the Contracting States and not of a decision of the management of the EPO or of the Boards of Appeal. [00:19] schestowitz Der Nrgler [00:19] schestowitz November 27, 2020 at 9:56 pm [00:19] schestowitz I disagree with the outraged comments above. Oral proceedings by video work well in my experience. Whats more, there is hardly any other option at the moment in these Corona times to bring cases to a close. And it is, again in my experience, evident that parties are refusing vico as a delaying tactic. Having the revocation of an invalid patent delayed is in no-ones interest (except the patentee..). Justice delayed is [00:19] schestowitz justice denied. [00:19] schestowitz Courts have rapidly moved to telephone and video proceedings, e.g. in. England almost all civil proceedings are conducted that way at present. Its almost embarrassing that some patent professionals are so reluctant to change. One wonders what their innovative clients think. [00:19] schestowitz Der Nrgler [00:19] schestowitz November 27, 2020 at 10:16 pm [00:19] schestowitz And much as it is important (and fun) for us all to criticise the EPO (and in my view with some merit, eg concerns around independence of the Boards) , I wonder if we Germans should cast a critical eye closer to home too? [00:19] schestowitz Here, youve criticised the EPO as not being an Amt (servant). OK, but have you dealt with the DPMA in recent years? OAs with 24 month terms for replying, queries asking when the next OA will issue answered with given the high number of applications we cant foresee when we might possibly get round to examining this application, applications waiting years for a next OA. Delays there are very very high! And quality [00:19] schestowitz overall? Weve seen OAs where the Examiner hasnt considered the last filed claims, but mistakenly issued an OA on the previous claims. And hearings well its just with the same, one Examiner, no three (wo)man division to stop erratic objections. [00:19] schestowitz Would genuinely love to see an article on the DPMA here, but I doubt I ever will. [00:19] schestowitz In fact, anyone who has ever tried to register their new address, register their car, get a passport for their children, get married etc etc etc will wonder how any Amt of ours is possibly a servant [00:19] schestowitz German Examiner [00:19] schestowitz November 29, 2020 at 2:39 pm [00:20] schestowitz @ Der Nrgler Some of your points just require a comment. [00:20] schestowitz My background: examiner, team leader, plus some other functions. [00:20] schestowitz 0) The question was, if it is OK for the EPO to require vicos. The DPMA does not still I would like the possibility, since I also like oral proceedings [00:20] schestowitz 1) OA with 24 months I know a few colleagues who do this. Some for all their OAs, some for special attorneys: They simply want to avoid numerous requests for Fristverlngerung (I have files with > 10 of these requests). There seems to be a common misconception, that you are not allowed to answer before the last day of the First. [00:20] schestowitz 2) The answers for Sachstandsanfragen management requires us to not set dates for the next action more than 12 months into the future (and actually, our software will not accept such a date), so the answer you quoted translates to not in the next 12 months. The background for this rule is that planning of dates to far into the future is simply not practical. Also, it is in respones to the huge number of these [00:20] schestowitz Sachstandsanfragen and requests for expedited examination some attorneys will send a Sachstandsanfrage every year and note they do NOT request expedited examination (my guess: they augment their income by billing these yearly letters). [00:20] schestowitz My personal experience: the number of these requests for my files dropped significantly once I answered these with summons for oral proceedings go figure [00:20] schestowitz Just recently a colleague received a request for expedited examination 1 month after the application was filed, allegedly there is an infringement (there was a priority, but still: the infrigement is probably a piece of state of the art) [00:20] schestowitz 3) Delays Yes, the delays are to long, but he DPMA has been hiring a large number of examiners additionally, and will do so in the next years. [00:20] schestowitz Again, just my personal experience: If attorneys/applicants would spend more time on drafting the apllication and on their answers, delays would go down. When you issue an office action and the reply makes you realize a) the OA waas not read/understood or b) the state of the art was not read/understood then why should this get a speedy further OA? Classic example: a feature from the description which is also present in the state of [00:20] schestowitz the art: no way to grant a patent, no way to reject the application. [00:20] schestowitz I regularly cross-check my files and those of my team-members with the parallel files at the EPO: I dont see a big difference in delays (could be specific to electrical engineering) and judging by the number of requests for Fristverlngerung because of a parallel EPO application the EPO needs more than 5 years on average, too. [00:20] schestowitz 4) Wrong claims well mistakes happen. This has happened to me too (some PCT application with various sets of claims from the same date), the attorney called me on the phone, a few days later he had the corrected OA big deal? [00:20] schestowitz 5) Overall quality the DPMA does not have an examination division, but any decision (grant, rejection) is reviewed by the team leader (and in most depatments, the department head will also review a random sample of OAs and decisions). I have not seen any erratic decisions (erratic in the sense of: glaringly wrong, as opposed to: the details could possibly support a different decision) in my department and viewing the BPatG- [00:20] schestowitz decisions there are not many overall. [00:20] schestowitz When you drive to your office tomorrow, over the streets that are protected by an EP patent in force (together with beaches and meadows and lots more of ffentlicher Kulturraum) you could reconsider whether the examining division really ensures quality. Some commenters on the blog stated, that the examining division is actually no longer working in the intended way, that the 2 further members just sign whatever the rapporteur [00:20] schestowitz offers them. [00:20] schestowitz So to sum it up: quality can always improved, but the DPMA is overall not worse than the EPO. In my experience: the attorneys crying abwegig, erratic and so on the loudest are mostly the ones who are far from their field of expertise. I had biologists, civil engineers, computer scientists, physicists reacting like this when dealing with electronics and electrical machines If they appealed to the BPatG at all they [00:20] schestowitz invaraibly lost there, too. [00:20] schestowitz MaxDrei [00:20] schestowitz November 28, 2020 at 10:29 am [00:20] schestowitz Der Nrgler makes points that, for me, are refreshing and welcome. To add to his lament about the lack of pace in civil proceedings in the courts of Germany I would add that the maxim Justice delayed is justice denied is, for me, even more important in criminal proceedings. Is it the Bund or the Lnder, that is to blame for honest and hard-working judges putting in 60 hour weeks to fight a gruesome backlog of hundreds of [00:20] schestowitz thousands of cases? Who is to blame for high profile miscreants getting off because their cases are delayed over and over again, until the period allowed for bringing them to trial runs out? [00:20] schestowitz Precious is the level of trust which people place in society, and in the organs of the State. When that trust is eroded, decent civil society unravels. [00:20] schestowitz Come on Germany. You have been a beacon of civilisation and representative democratic politics since the War. Just compare life in Germany today with that in, say, the USA or the UK. Your Constitution has withstood assault from all quarters, left and right, up to now. But such decency, civilisation and harmony isnt guaranteed to continue indefinitely, automatically. It cant last unless somebody puts increased pressure on the [00:20] schestowitz Justice Ministry, for goodness sake, please somehow to concentrate on the highest priorities and address the all too evident serious and growing problems. [00:20] schestowitz Every representative democracy is full of honest burghers who suppose that their system of criminal law is no concern of their (because they will never commit a crime) so see no reason to finance it adequately. Please will somebody explain to these good citizens how important it is, to them and their family members, that the States system of criminal justice is adequately financed, competently supervised and sympathetically exercised [00:20] schestowitz If the politicians and the Justice Ministry cant even get excited about neglect of the criminal justice system, fat chance they will pay any attention to abstruse issues in specialist patent law. [00:20] schestowitz Attentive Observer [00:20] schestowitz November 28, 2020 at 4:31 pm [00:20] schestowitz Contrary to Max Drei, I do not find that Der Nrgler makes points that, for me, are refreshing and welcome. [00:20] schestowitz The argument justice delayed is justice denied bears certainly a lot of weight and cannot be dismissed. But what disturbs me is the total absence of legality of the system presently introduced at the EPO with forcing parties into oral proceedings in form of videoconferences before the EPO, be it in first instance or in appeal. [00:20] schestowitz When in member states of the EPC governments decide to impose proceedings, especially before courts, in form of video conferences they are under the control of the parliaments and of the judiciary. That it works in England is not a benchmark as the whole legal system over the Channel is quite different. [00:20] schestowitz Just an example: in France the trial about the terrorists attacks against Charlie Hebdo in January 2015 is stalled as one of the accused has caught the Covid virus. He can thus not be present in court. The Minister of Justice (a criminal lawyer himself!) has then decided that the trial, actually any trial, could continue and be brought to an end whereby the accused can be forced to attend his trial by appearing in a videoconference [00:20] schestowitz during the pleadings. He did however not go as far as wanting this procedure when taking evidence. [00:20] schestowitz The highest administrative Court, Conseil dtat = Council of State, has simply set aside the ministers decision as not being conform to the right of an accused to properly defend himself, in other words, the right to be heard. [00:20] schestowitz I do not compare such a trial in a criminal court with procedures before the EPO, but on a matter of principle the decision of the Conseil dtat is fully understandable and I approve it. The right to be heard cannot be reduced to a telephone conference in which you can see your vis--vis [00:20] schestowitz The problem is that at the EPO such a system of checks and balances does not exist. Introducing oral proceedings in form of videoconferences has no legal basis in the EPC as it stands. The EPO seems to be on an extra-territorial planet in which the higher ups, even at the boards can do what they want. Before doing so, the EPC ought to be amended, and certainly not by a kind of dynamic interpretation of the Enlarged Board of Appeal [00:20] schestowitz I invite the readers to have a look at epis comments on proposed Art 15a RPBA20. During the present pandemic situation epi can agree with oral proceedings in form of videoconferences, but it should not become the rule. And Art 15a should be removed after the pandemic and at the latest one year after it entered into force. A very reasonable position. [00:20] schestowitz Last but not least, a word to Dear Nrgler: we are here not discussing what is happening or not at the German Patent Office but at the EPO. It is of no help to anyone to compare an apparently slow working office with one in which everything has to be done quickly so that the plan is achieved in order for its managers to cash in their bonus. Such a type of comparison is really beside the point. [00:21] schestowitz Patent robot [00:21] schestowitz November 29, 2020 at 12:11 pm [00:21] schestowitz I thought that everything which is not forbidden is allowed: where exactly do you read at the premises of the EPO in Art. 116 EPC? [00:21] schestowitz By the way, videoconferencing was already available in 1973 [00:21] schestowitz " [00:33] schestowitz https://pleroma.site/notice/A1hqXoKsjjqXvJh04G [00:33] schestowitz " [00:33] -TechBytesBot/#techbytes-mstdn.social | `Da Elf: "@schestowitz@pleroma.site I read the first senten" - Mastodon [00:33] schestowitz I read the first sentence, chuckled, and closed the tab. [00:33] schestowitz And no, {buzzword} fucking can't. [00:33] schestowitz " [00:33] schestowitz https://pleroma.site/notice/A1gs2HkrpLkmeHyxn6 [00:33] schestowitz " [00:33] -TechBytesBot/#techbytes-todon.eu | Ethan: "@schestowitz@pleroma.site Or in the case of #Clo" - Todon.eu [00:33] schestowitz Or in the case of #Cloudflare's default setting for #encryption, "flexible SSL," it's encrypted from Cloudflare to end users but not from the origin #server to Cloudflare [00:33] schestowitz https://www.cloudflare.com/ssl/ [00:33] -TechBytesBot/#techbytes-www.cloudflare.com | Cloudflare Free SSL/TLS | Get SSL Certificates | Cloudflare [00:33] schestowitz " [00:33] schestowitz https://pleroma.site/notice/A1gZUcaM4jbuETrats [00:33] schestowitz "Nothing is better than Trump" [00:33] -TechBytesBot/#techbytes- ( status 404 @ https://fosstodon.org/@neb/105292826368211031 ) [00:33] schestowitz https://pleroma.site/notice/A1fwFmR9Gk8OELUPGS [00:33] schestowitz " [00:33] -TechBytesBot/#techbytes-mastodon.nzoss.nz | Strypey: "@ademalsasa@floss.social I've been experimenting " - Mastodon - NZOSS [00:33] schestowitz @ademalsasa I've been experimenting with previous versions of Jami for a year or two on Trisquel 8 and Android 4.x. The VOICE testing group tried it out July, 2019: [00:33] schestowitz https://write.as/c7fda5x13qzve.md [00:33] -TechBytesBot/#techbytes-write.as | VOICE Scheduled Testing Session #2 Write.as [00:33] schestowitz I'll have to investigate what OS versions the new Jami version can run on. But it sounds like they still haven't shipped multi-device sync and group text chat. Until they do, it's usefulness is limited. [00:33] schestowitz " [00:33] schestowitz https://pleroma.site/notice/A1fdiBQ05FrGgjmZWa [00:33] schestowitz "And the rest of the 150 didn't say a word because getting cancelled while in the opposition minority is a possibility." [00:33] -TechBytesBot/#techbytes-hackers.town | egret: "@schestowitz@pleroma.site And the rest of the 150" - hackers.town [00:59] schestowitz https://joindiaspora.com/posts/19552911#a1e4da9014d301398d5c5baa926c1953 [00:59] schestowitz "There was another French company that provide raspberry PiS for 2 or 3 EUR a month but I always forget their name you know who Im talking about?" [00:59] -TechBytesBot/#techbytes-@linux@joindiaspora.com: IKOULA hosts Raspberry Pi 4 micro server for 4.99+ Euros per month su xn http://www.tuxmachines.org/node/144867 [00:59] -TechBytesBot/#techbytes--> www.tuxmachines.org | IKOULA hosts Raspberry Pi 4 micro server for 4.99+ Euros per month | Tux Machines [00:59] schestowitz I never heard of them before... interesting ● Nov 30 [01:00] schestowitz " [01:00] schestowitz I checked their website, the price you mention doesnt include VAT, so its more like 6 EUR a month. [01:00] schestowitz You also get only a 16 GB memory card included in that price. They couldve tossed in, it sounds like a cheap trick to attract people with a low price tag and then force them to get the more expensive ssd option. [01:00] schestowitz They dont have archlinux as an option, only raspbian and Ubuntu. [01:00] schestowitz You dont get a static IP either and, worst of all, they ask a bunch of personal informations like home address and stuff. I couldnt see any bitcoin payment button either. [01:00] schestowitz In short the final price for a 1 year upfront payment with vat, ssd and static IP is 12 EUR a month. Still not too bad but not that great either, there are better options for that price. [01:00] schestowitz " [01:00] schestowitz I would not want to rent my gear; it leads to many issues that they don't warn you about, exploiting people with limited means ● Nov 30 [03:57] *rianne_ (~rianne@host81-154-173-112.range81-154.btcentralplus.com) has joined #techbytes [03:57] *asusbox2 (~rianne@host81-154-173-112.range81-154.btcentralplus.com) has joined #techbytes ● Nov 30 [04:00] *asusbox has quit (Ping timeout: 264 seconds) [04:00] *rianne has quit (Ping timeout: 240 seconds) ● Nov 30 [06:38] *oiaohm has quit (Read error: Connection reset by peer) [06:39] *oiaohm (~oiaohm@unaffiliated/oiaohm) has joined #techbytes ● Nov 30 [07:28] *GNUmoon has quit (Ping timeout: 240 seconds) [07:47] *rianne__ has quit (Remote host closed the connection) [07:47] *liberty_box has quit (Ping timeout: 240 seconds) [07:47] *rianne__ (~rianne@host81-154-173-112.range81-154.btcentralplus.com) has joined #techbytes [07:47] *liberty_box (~liberty@host81-154-173-112.range81-154.btcentralplus.com) has joined #techbytes ● Nov 30 [08:32] *GNUmoon (~GNUmoon@gateway/tor-sasl/gnumoon) has joined #techbytes ● Nov 30 [10:47] *oiaohm has quit (Read error: Connection reset by peer) [10:47] *oiaohm (~oiaohm@unaffiliated/oiaohm) has joined #techbytes ● Nov 30 [13:36] schestowitz https://soylentnews.org/article.pl?sid=20/11/27/1654250 [13:36] -TechBytesBot/#techbytes-soylentnews.org | FFII Calls for Donations Against Unitary Software Patent Trolls After a Disastrous Bundestag Vote - SoylentNews [13:36] schestowitz "You keep mentioning HK. HK was under a democratic system until very recently; the new security law has really kinda killed much of what make HK special. Many HKers have now left the country, and after Covid, many more will probably follow, perhaps to UK where they've been given special status." ● Nov 30 [17:09] schestowitz https://twitter.com/uri_herrera/status/1333371669516259328 [17:09] -TechBytesBot/#techbytes-@uri_herrera: @schestowitz It's available now https://t.co/wif8lw7GIv [17:09] -TechBytesBot/#techbytes--> nxos.org | Changelog: Nitrux 1.3.5 Nitrux #YourNextOS [17:09] schestowitz https://twitter.com/leftylabourtech/status/1333285634140737536 [17:09] -TechBytesBot/#techbytes-@leftylabourtech: @schestowitz Canadian app is Apache licensed but not available via Fdroid so only installable via the Aurora Store https://t.co/naurnUxjtl [17:09] -TechBytesBot/#techbytes-@leftylabourtech: @schestowitz Canadian app is Apache licensed but not available via Fdroid so only installable via the Aurora Store https://t.co/naurnUxjtl [17:09] schestowitz "Canadian app is Apache licensed but not available via Fdroid so only installable via the Aurora Store if you want to avoid Google Play." [17:10] schestowitz https://twitter.com/alcipone/status/1333217654144978949 [17:10] -TechBytesBot/#techbytes-@alcipone: @schestowitz December will be fun ... [17:10] schestowitz https://twitter.com/deepi98deepi/status/1333172479007760385 [17:10] -TechBytesBot/#techbytes-@deepi98deepi: @schestowitz https://t.co/sGM5H2LGTP [17:10] -TechBytesBot/#techbytes--> www.express.co.uk | Michael Jackson accuser 'LIES': 'Wade Robson's own MOTHER contradicted his testimony' | Music | Entertainment | Express.co.uk [17:11] schestowitz https://twitter.com/Grown_UpWoman/status/1333120342731190273 [17:11] -TechBytesBot/#techbytes-@Grown_UpWoman: Methought Canada was all woke and stuff. So much for "all women." https://t.co/w3wZqQpVeR [17:11] -TechBytesBot/#techbytes-@schestowitz: #covid19 and violence at home https://t.co/wZ9Ov0QESQ [17:11] schestowitz https://twitter.com/zoobab/status/1333108247859965959 [17:11] -TechBytesBot/#techbytes-@zoobab: @schestowitz yes! [17:11] schestowitz looking more into gemini/markdown ● Nov 30 [18:35] *liberty_box has quit (Ping timeout: 272 seconds) [18:35] *rianne__ has quit (Ping timeout: 264 seconds) [18:37] *rianne__ (~rianne@host81-154-173-112.range81-154.btcentralplus.com) has joined #techbytes [18:42] *rianne__ has quit (Ping timeout: 260 seconds) [18:46] *rianne__ (~rianne@host81-154-173-112.range81-154.btcentralplus.com) has joined #techbytes [18:46] *liberty_box (~liberty@host81-154-173-112.range81-154.btcentralplus.com) has joined #techbytes ● Nov 30 [19:04] *oiaohm has quit (Read error: Connection reset by peer) [19:04] *oiaohm (~oiaohm@unaffiliated/oiaohm) has joined #techbytes [19:29] *rianne__ has quit (Ping timeout: 240 seconds) [19:30] *liberty_box has quit (Ping timeout: 256 seconds) [19:33] *rianne__ (~rianne@host81-154-173-112.range81-154.btcentralplus.com) has joined #techbytes [19:35] *liberty_box (~liberty@host81-154-173-112.range81-154.btcentralplus.com) has joined #techbytes [19:35] *schestowitz has quit (Quit: Konversation term) [19:35] *schestowitz (~schestowi@unaffiliated/schestowitz) has joined #techbytes [19:43] *rianne__ has quit (Ping timeout: 240 seconds) [19:44] *liberty_box has quit (Ping timeout: 264 seconds) [19:45] schestowitz Re: bit more time needed re art [19:45] schestowitz > Hi Roy :-) Just a note to say I'm going to need a little more time to [19:45] schestowitz > get the art done, but it will arrive! Won't break my word. Cheers. [19:45] schestowitz That's cool, thank you time and have lots of fun! [19:49] schestowitz > Hello Roy, [19:49] schestowitz > I want to increase my audience reach can you suggest to me, How should [19:49] schestowitz > I improve my reach, backlink, or content [19:49] schestowitz I suppose writing many on-topic articles ● Nov 30 [20:14] schestowitz > Desensitisation and Warhol: [20:14] schestowitz > https://publicdelivery.org/andy-warhol-death-disaster/ [20:14] schestowitz > [20:14] -TechBytesBot/#techbytes-publicdelivery.org | Andy Warhol's paintings of death & disaster [20:14] schestowitz > [20:15] schestowitz > "...when you see a gruesome picture over and over again, it really [20:15] schestowitz > doesnt have any effect." Interview with Gene Swenson in 1963 [20:15] schestowitz > [20:15] schestowitz > I don't know if I entirely agree, but what he's describing explains a [20:15] schestowitz > lot of people. I don't think video games for example, entirely [20:15] schestowitz > desensitise people to violence. But because it's real and people know [20:15] schestowitz > that, the ratings-chasings of the mass media may make society at least a [20:15] schestowitz > bit more sociopathic, and I suspect that in 1964, fewer people were [20:15] schestowitz > talking about that sort of effect. [20:16] *liberty_box (~liberty@host81-154-173-112.range81-154.btcentralplus.com) has joined #techbytes [20:16] *rianne__ (~rianne@host81-154-173-112.range81-154.btcentralplus.com) has joined #techbytes ● Nov 30 [21:00] *GNUmoon has quit (Ping timeout: 240 seconds) [21:59] *GNUmoon (~GNUmoon@gateway/tor-sasl/gnumoon) has joined #techbytes ● Nov 30 [23:11] *GNUmoon has quit (Remote host closed the connection)