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schestowitz"Oct 14 06:14
schestowitzI have been attempting to access and update/upgrade/work on the test server of xxxxx  Having managed to connect to their VPN (and I can access the login page through a Web browser -- I assume it's VPN-restricted), I currently find that I'm not able to reach their live and test servers over SSH. It just doesn't seem to respond on that port at all (22). I checked our documentation and it seems like I do the correct thing. But I don't knowOct 14 06:14
schestowitzif it's a VPN issue as the IP addresses of the servers seem to be the same still.Oct 14 06:14
schestowitzSo my question is this: who last managed to access their servers (over SSH)? Because maybe I just do something wrong and I spent a lot time on it so far (in vain).Oct 14 06:15
schestowitzThis question aside, as discussed with you over the phone months ago, I have no experience dealing with these particular software packages, so in case something breaks it would help to have an expert oncall. Usually it's Peter doing these tasks because it's in his ballpark. Configuration and stuff, not merely updating the base system.Oct 14 06:15
schestowitz"Oct 14 06:15
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schestowitzDear “Attentive Observer”,Oct 14 09:58
schestowitzBifurcation of infringement and validity is not a new thought.Oct 14 09:58
schestowitzAlso deleting the time limit in the EPC for filing an opposition, and thereby, in effect turning the opposition procedure into a revocation procedure surely has been suggested numerous times. But this might cause issue with national legal procedures which do not bifurcate or are disinclined, for whatever reason, to defer to the EPO the issue of validity.Oct 14 09:58
schestowitzArt.64(3) would need also to be clarified or amended so that “any infringement of a European patent shall be dealt with by national law” is understood to mean what it says, only infringement, and that issues of validity and revocation is reserved for the EPO. (Perhaps national revocation procedures, as an exception to the general rule, only if national prior rights are involved.)Oct 14 09:58
schestowitzMNOct 14 09:58
schestowitzReplyOct 14 09:58
schestowitzMNOct 14 09:58
schestowitzOctober 13, 2020 at 3:01 pmOct 14 09:58
schestowitzRepresentative democracy seems to be, these days, such a delicate flower. One observes the USA with great apprehension. The Parliamentarians (Germany) make a mess of their (UPC) vote and the electors (UK) make a mess of their (EU Referendum) vote.Oct 14 09:58
schestowitzYou could add Canada’s very rushed ratification of the USMCA on the last day (Friday) before a three-week break. None of the weeks of deliberations that were scheduled (with the intent to slightly “improve” the deal), but instead instant approval!Oct 14 09:58
schestowitzReplyOct 14 09:58
schestowitzMaxDreiOct 14 09:58
schestowitzOctober 13, 2020 at 3:46 pmOct 14 09:58
schestowitzI want to take up with Attentive and MN the issue of “bifurcation”. Is it Attentive’s proposal to reserve validity adjudication exclusively to the EPO? I had thought not. I had supposed that his proposal was to leave intact the notion of a “bundle” of national patents but to allow the TBA to strike down a patent issued by the EPO at any time during its 20 year term.Oct 14 09:58
schestowitzOne would imagine that petitioners for revocation would favour the EPO, so as to get rid of the patent all over the EU. If they choose not to petition the EPO, that would suggest that they themselves are not confident that their attacks on validity are good enough to succeed.Oct 14 09:58
schestowitzThe EPC Contracting States back in 1973 were not willing to go as far as a pan-EPC court to adjudicate infringement. My reading is that even now, in 2020, Europe can stomach a single Decision revoking a patent for all of Europe but is still nervous about giving one court the authority to find infringement for the whole of the EU.Oct 14 09:58
schestowitzThere is some logic in that. After all, patents are, by definition, an impediment to free trade and open competition. Knocking a patent out restores free trade. Enforcing the exclusive rights given by a patent grant stamps out free competition. So the right given by patent grant should only ever be enforced by an expert specialist court that knows what it is doing. The consequences are more severe than the consequences of striking downOct 14 09:58
schestowitza single patent of such dubious validity that it has to be litigated in court.Oct 14 09:58
schestowitzMind you, the recent pan-European pemetrexed litigation is a bit of an exception. The issue that took it to national Supreme Courts all over Europe was an infringement issue, not one of validity. But the argument on that issue, to and fro, between the various involved jurisdictions and courts, has served a useful purpose, namely, sharpening up the law of Infringement by Equivalent, all over Europe, to the lasting benefit of all futureOct 14 09:58
schestowitzpatent litigants. We’ve got that benefit, even without a UPC. And with a UPC, would the law on DoE have been rendered clearer? If the performance of the CJEU, even on IPR issues where no education in science or engineering is needed, is anything to go by, we would have had fog and obfuscation, less clarity rather than more.Oct 14 09:58
schestowitzReplyOct 14 09:58
schestowitz    francis hagelOct 14 09:58
schestowitz    October 14, 2020 at 8:02 amOct 14 09:58
schestowitz    Dear Attentive,Oct 14 09:58
schestowitz    There is a strong logic in your suggestion. However, it relies on a clear separation between validity and infringement which would prevent judges from understanding and taking into account the overall context esp regarding the relationship between the parties and their behaviour. in addition prominent issues such as claim interpretation affect both sides and there is a big risk of inconsistency if there is bifurcation. There areOct 14 09:58
schestowitzother problems illustrated by the reforms currently envisioned in Germany.Oct 14 09:58
schestowitz    ReplyOct 14 09:58
schestowitzAttentive ObserverOct 14 09:58
schestowitzOctober 13, 2020 at 5:26 pmOct 14 09:58
schestowitzI do not claim to be the first of having thought of the extension of the opposition period, and of the bifurcation. I do not remember anybody else mentioning it on this blog before. But this is not really important.Oct 14 09:58
schestowitzIf one takes Art 64(3) for what it says, it does not seem to need amendment.Oct 14 09:58
schestowitzA quick look at the “travaux preparatoires” relating to Art 64 shows that in the early drafts it was much closer to the rights envisaged to be valid for a Patent for the European Community, cf. Art 20.Oct 14 09:58
schestowitzIn the early drafts relating to the Community Patent the question of exhaustion of rights for a patentee was subject to heavy discussions. It seems that this topic was later left aside and proposals coming much nearer to what is now Art 64(3) were discussed. What was also heavily discussed was the coexistence between national and European patents. There were also lengthy discussions in the 60ties about the different fora where anOct 14 09:58
schestowitzinfringement action could be launched. Does this rings a bell?Oct 14 09:58
schestowitzMore important seems however to have the Boards of Appeal truly independent from the EPO and its President. The head of the Boards of Appeal does only have the competence delegated to him by the President. Eventually, the president decides upon the budget and not the head of the boards. What has been done to the boards of appeal in 2016 should be rescinded, and the latter should become an autonomous entity, even if it getsOct 14 09:59
schestowitzadministrative support from the EPO.Oct 14 09:59
schestowitzReplyOct 14 09:59
schestowitzImplicitly but necessarily and specificallyOct 14 09:59
schestowitzOctober 13, 2020 at 5:45 pmOct 14 09:59
schestowitzDear XLF:Oct 14 09:59
schestowitzDo you have anything to say about the substance of the comments made by the English judges? I think you will find that plenty of patent practitioners elsewhere share their viewpoint. Ad hominem attacks based on the judges’ nationality might be satisfying to you, but “playing the man, not the ball” does not contribute to a constructive debate.Oct 14 09:59
schestowitzIn the spirit of constructive debate, let me turn this around and ask you: do you find the case law emanating from the CJEU to be clear when it comes to the validity of SPCs? And if so, why do you think that not only the English courts but also those of (e.g.) France, Germany and Sweden have such difficulty in understanding the tests which the court has set out?Oct 14 09:59
schestowitzDo you believe that there is no real risk that the CJEU will come to contrary views on patent validity, overturning the legal order which has been painstakingly built up over 40 years by the EPO, to the detriment of patent holders and the public alike?Oct 14 09:59
schestowitzReplyOct 14 09:59
schestowitzAttentive ObserverOct 14 09:59
schestowitzOctober 13, 2020 at 11:40 pmOct 14 09:59
schestowitzDear Max Drei,Oct 14 09:59
schestowitzThe idea is to leave intact the notion of bundle, but like in opposition decide centrally of the fate of the bundle. Validity could be left for national courts, and a national court would only be called by an opponent who was not successful at the EPO as it is presently the case. It would still be possible to go to a national court if the central action was not to be expected too successful. I take bets that the number of validityOct 14 09:59
schestowitzactions before national courts would be very low with such a system.Oct 14 09:59
schestowitzThe number of true supranational infringement actions is very low. Pemetrexed is one example, but since the average number of validations is at best 5-7 in the whole EPC, why is it necessary to set a complicated machine like the UPC, which does not even cover the whole of the EU. You made those reasons clear: financial interest of big law firms.Oct 14 09:59
schestowitzWithout the UK the UPC will never become the leading court in Europe as thought by Sir Robin Jacob and oppositions before the EPO will also not go down! The UPC is as useful as a plaster on a wooden leg!.Oct 14 09:59
schestowitz 14 09:59
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