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| schestowitz | " | Jun 05 08:00 |
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| schestowitz | Hi Susan, | Jun 05 08:00 |
| schestowitz | I've just read https://pclosmag.com/html/Issues/200609/page02.html ... after the latest magazine issue made a mention of it. | Jun 05 08:00 |
| schestowitz | I wanted to just send you a huge thank-you message and to check all was OK where you are.. | Jun 05 08:00 |
| -TechBytesBot/#techbytes-pclosmag.com | PCLinuxOS Magazine - HTML | Jun 05 08:00 | |
| schestowitz | Also, 5 days from now the site turns 18! | Jun 05 08:00 |
| schestowitz | Kind regards from Roy and Rianne | Jun 05 08:00 |
| schestowitz | " | Jun 05 08:00 |
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| schestowitz | https://ipkitten.blogspot.com/2022/05/board-of-appeal-agrees-that-description.html?showComment=1653903531459 | Jun 05 11:55 |
| -TechBytesBot/#techbytes-ipkitten.blogspot.com | Board of Appeal agrees that the description amendment requirement lacks legal basis (T 1444/20) - The IPKat | Jun 05 11:55 | |
| schestowitz | " | Jun 05 11:55 |
| schestowitz | A decision by a BA is without doubt a collective decision. Since the problem is primarily a legal one, it does not take a great deal of knowledge to realise that the arguments come primarily from the legal member. | Jun 05 11:55 |
| schestowitz | However, many other legal members in other BA are of the opposite opinion to the legal member in decisions T 1989/18 and T 1444/20. And this is also a fact which is too often forgotten. | Jun 05 11:55 |
| schestowitz | It is abundantly clear that the supporters of T 1889/18 and T 1444/20 do not want the description to be modified, as is the case for instance in France as well as in the USA. This is a legitimate wish, but this possibility is not provided for in Art 84, last criterion. | Jun 05 11:55 |
| schestowitz | I would add that all the supporters of decisions T 1989/18 and T 1444/20 seem to forget one very important point. | Jun 05 11:55 |
| schestowitz | The patent granted at the end of the examination procedure represents a fiction because it represents the application as it should have been filed, since the life of the patent is calculated from the filing date. | Jun 05 11:55 |
| schestowitz | The criteria set out in Art 84 therefore represent a very coherent set of rules. Any ambiguity as to the interpretation of the granted claims is to be avoided. This is the purpose of the third criterion under Art 84. Without bringing the description in accordance with the claims, then, resorting to the file wrapper is necessity. | Jun 05 11:55 |
| schestowitz | In the event of discussions before a national court, or even in the future before the UPC, there is nothing to prevent the proprietor from presenting the application as filed to the national judge if he feels the need to do so. The judge will then be able to establish the result of the examination without having to refer to the examination file as such. I remember a decision of a BA mentioning this point, but I cannot find it rapidly. | Jun 05 11:55 |
| schestowitz | National offices and national courts have very different views on many issues, clearly departing from those of the EPO and the BA. | Jun 05 11:55 |
| schestowitz | For example, take added subject-matter under Art 123(2). I am sure most of the representatives for the applicant/proprietor would argue for a much less severe approach to this criterion. The contrary is valid for opponents or potential infringers. But should the EPO and the BA fall in line with the least stringent institutions in this respect? I do not think so and the same applies to Art 84. | Jun 05 11:55 |
| schestowitz | The EPO and the BA have developed a long lasting practice which is what it is, but which on the whole is very consistent whether it is for Art 84, Art 54, 56 and 123(2). I think that applicants know very well what to expect and this is for the greater good of the users of the system and of third parties confronted with granted patents. | Jun 05 11:55 |
| schestowitz | Without taking away from the national judge the possibilities of interpreting granted claims under the Art 69 protocol, it is important that third parties confronted with granted patents can know what can be held against them. Any ambiguity introduced by the description is therefore to be avoided. The role of the EPO is also to balance the interests of users and of third parties or potential infringers. One way to do so is to apply Art 84 in its | Jun 05 11:55 |
| schestowitz | entirety. | Jun 05 11:55 |
| schestowitz | What applies to Art 123(2) should thus also apply to Art 84. | Jun 05 11:55 |
| schestowitz | I think the respective points of view are clear. Continuing the discussion on Art 84 will not add anything to the debate. But the violence and the vehemence of some of the supporters of T 1989/18 and T 1244/20 is quite astonishing. | Jun 05 11:55 |
| schestowitz | I will therefore refrain from any further comment. To paraphrase a late French trade union leader, if one has to know when to stop an industrial action, one also have to know when to stop a discussion. | Jun 05 11:55 |
| schestowitz | " | Jun 05 11:55 |
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