Techrights logo

IRC: #techbytes @ Techrights IRC Network: Wednesday, March 22, 2023

(ℹ) Join us now at the IRC channel | ䷉ Find the plain text version at this address (HTTP) or in Gemini (how to use Gemini) with a full GemText version.

*psydruid (~psydruid@jevhxkzmtrbww.irc) has left #techbytesMar 22 00:11
*psydruid (~psydruid@jevhxkzmtrbww.irc) has joined #techbytesMar 22 00:12
*Disconnected (Connection reset by peer).Mar 22 03:31
*Now talking on #techbytesMar 22 03:31
*Topic for #techbytes is: Welcome to the official channel of the TechBytes AudiocastMar 22 03:31
*Topic for #techbytes set by schestowitz!~roy@haii6za73zabc.irc at Tue Jun 1 20:21:34 2021Mar 22 03:31
*Moocher5254 (~quassel@i7sfqsqsuqk4i.irc) has joined #techbytesMar 22 03:32
*liberty_box (~liberty@rbnv8qskr8rgw.irc) has joined #techbytesMar 22 03:32
*asusbox (~rianne@rbnv8qskr8rgw.irc) has joined #techbytesMar 22 03:32
*u-amarsh04 (~amarsh04@nqkitbgnqjad4.irc) has joined #techbytesMar 22 03:32
*GNUmoon2 (~GNUmoon@6h225yswjsmje.irc) has joined #techbytesMar 22 03:32
*rianne_ (~rianne@rbnv8qskr8rgw.irc) has joined #techbytesMar 22 03:32
*rianne (~rianne@rbnv8qskr8rgw.irc) has joined #techbytesMar 22 03:32
*techrights[sec] (~tokwe@rbnv8qskr8rgw.irc) has joined #techbytesMar 22 03:32
*libertybox (~schestowitz_log@rbnv8qskr8rgw.irc) has joined #techbytesMar 22 03:32
*schestowitz-TR (~acer-box@rbnv8qskr8rgw.irc) has joined #techbytesMar 22 03:32
*Techrights-sec (~quassel@rbnv8qskr8rgw.irc) has joined #techbytesMar 22 03:33
*libertybox_ (~schestowitz_log@rbnv8qskr8rgw.irc) has joined #techbytesMar 22 03:33
*Techrights-sec2 (~quassel@rbnv8qskr8rgw.irc) has joined #techbytesMar 22 03:33
*techright-pol (~schestowitz_log@rbnv8qskr8rgw.irc) has joined #techbytesMar 22 03:33
*XFaCE (~XFaCE@uzfeivw9fp6ba.irc) has joined #techbytesMar 22 03:35
*u-amarsh04 has quit (Quit: Konversation terminated!)Mar 22 05:38
*u-amarsh04 (~amarsh04@nqkitbgnqjad4.irc) has joined #techbytesMar 22 05:47
*psydruid (~psydruid@jevhxkzmtrbww.irc) has joined #techbytesMar 22 07:02
schestowitz[TR]https://ipkitten.blogspot.com/2023/03/epo-tries-to-have-its-cake-and-eat-it.html?showComment=1679420961398#c7561766819842424907Mar 22 07:55
-TechBytesBot/#techbytes-ipkitten.blogspot.com | EPO tries to have its cake and eat it on claim interpretation (T 0169/20) - The IPKatMar 22 07:55
schestowitz[TR]"29 Comments:Mar 22 07:56
schestowitz[TR]AnonymousThursday, 16 March 2023 at 11:25:00 GMTMar 22 07:56
schestowitz[TR]It is unfortunate that the Boards of Appeal keep making up sweeping new principles of claim interpretation based on fairly poor case studies.Mar 22 07:56
schestowitz[TR]In this case, the BoA is right that the claim does not clearly specify that second container is contained within the fluid phase - it can be anywhere within the claimed detergent composition. On the other hand, it is apparent from numerous parts of the description that the second container is contained within the fluid phase, e.g.:Mar 22 07:56
schestowitz[TR]"Preferably the gas comprises air. Alternatively the gas may comprise one or more of nitrogen, carbon dioxide, oxygen or a halogen or an admixture thereof. With the gas content preferably the second container has a lower overall density than the fluid phase. With this arrangement it has been found that a number of advantages are realised. A principle advantage is that it precludes adherence of the second container to the (bottom) ofMar 22 07:56
schestowitz[TR] the container. In doing so, in use, the second container is easily extracted from the container and additionally the possibility of residue build-up (by poor or no extraction) is prevented.Mar 22 07:56
schestowitz[TR]A supplementary advantage impacts on the production process. As the second container has a lower overall density than the fluid phase this allows for the filling of the container with fluid and the second container without danger of the presence of the second container causing any overfilling of the container. This would otherwise affect negatively on sealing of the container and soiling of the production machinery."Mar 22 07:56
schestowitz[TR]The BoA could have decided this case on its facts without trying (and failing) to marry up two conflicting lines of case law.Mar 22 07:56
schestowitz[TR]Interestingly, it seems that, had the claim been amended to refer to one or more of the effects of the difference in density, as opposed to just the difference in density itself (Auxiliary Request 1), Claim 1 would have made it clear that the second container had to be in the fluid phase and the outcome would have been different.Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]Proof of the puddingThursday, 16 March 2023 at 13:00:00 GMTMar 22 07:56
schestowitz[TR]And so the Boards go yet further down the rabbit hole!Mar 22 07:56
schestowitz[TR]Accepting the reasoning of the Board in T169/20 leads to some perverse conclusions.Mar 22 07:56
schestowitz[TR]For example, consider the situation where a non-claimed invention is defined using one or more terms for which the description provides mandatory, "unusual" and narrow definitions. Now consider what the consequence might be of introducing a claim to that invention without including the "unusual" definition(s) in the claim.Mar 22 07:56
schestowitz[TR]According to the reasoning in T169/20, the new claim (even if its wording precisely matched that of the embodiment disclosed in the description) would:Mar 22 07:56
schestowitz[TR](a) add subject matter if the wording of the claim was clear on its own; butMar 22 07:56
schestowitz[TR](b) not add subject matter if the criteria for interpreting the claim in the light of the description were satisfied.Mar 22 07:56
schestowitz[TR]However, the main problem with this conclusion is that the criteria mentioned in (b) would require the EPO to perform arguably subjective assessments (see, for example, "necessary to understand the claim", "including the definition of the unclear feature would prejudice the readability of the claim" and "the definition of the unclear feature should be readily recognisable in the specification").Mar 22 07:56
schestowitz[TR]Relying upon subjective assessments to determine whether subject matter is clearly and unambiguously disclosed is hardly the most sensible corner into which the EPO could have painted itself.Mar 22 07:56
schestowitz[TR]The Board's reasoning regarding the role of Art 84 EPC also seems to be self-contradictory in places.Mar 22 07:56
schestowitz[TR]Regarding "supported by the description", the Board opines that:Mar 22 07:56
schestowitz[TR]"the wording of this provision explicitly limits the role of the description to an aid for understanding the subject-matter to be assessed under patentability, while implicitly confining this role to the exceptional cases where such support is both necessary and possible".Mar 22 07:56
schestowitz[TR]However, having concluded that "The support of the description should be resorted to only in case of need", the Board then opines that:Mar 22 07:56
schestowitz[TR]"this support is only possible to the extent that there is a correspondence between the description and the subject matter of the claimed invention, so that the technical explanations in the description can serve to illustrate the meaning of the claimed features and not to limit or modify their scope with respect to what a person skilled in the art would understand when reading them".Mar 22 07:56
schestowitz[TR]In other words, the Board would have us believe that the "support" requirement means that: (1) only in selected cases can the interpretation of the claims be affected by the description; butMar 22 07:56
schestowitz[TR](2) in all cases there must be strict correspondence between the claims and the description, to avoid the latter modifying the skilled person's interpretation of the former.Mar 22 07:56
schestowitz[TR]It does not take a genius to spot the inconsistencies between these two points.Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]MaxDreiThursday, 16 March 2023 at 13:07:00 GMTMar 22 07:56
schestowitz[TR]Good stuff, Rose, thanks. Your reference to eating cake set me thinking.Mar 22 07:56
schestowitz[TR]The Board flags up a point which to me is important and can serve to justify the EPO's harsh line on "conforming" the description. See the Decision at para 1.3.3 and its mention of a patentee getting a reward for deliberately ambiguous drafting. So, it is not just the EPO that wants its cake and to eat it too. So do those zealous lawyers who love bifurcation of the claim into a narrow meaning when defending against validity attacks Mar 22 07:56
schestowitz[TR]and a wider one when pursuing infringers. Perhaps we can all agree, that this form of cake eating is something to be discouraged, starting at the EPO.Mar 22 07:56
schestowitz[TR]When trying to square the circle in the area of claim interpretation "in the light of" the description, I wonder whether the doctrine of "insolubly ambiguous" in US case law (no longer in fashion over there though) has a role to play. What I mean is, to divine what is the subject matter of the claim, you take the claim as it is. it is permitted to turn to the description ONLY when the claim, to the skilled reader, is insolubly ambigMar 22 07:56
schestowitz[TR]uous. These will be rare cases, right?Mar 22 07:56
schestowitz[TR]https://patentlyo.com/patent/2013/09/is-insolubly-ambiguous-the-correct-standard-for-indefiniteness.htmlMar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]SGThursday, 16 March 2023 at 15:10:00 GMTMar 22 07:56
schestowitz[TR]Poor Art. 84 EPC. Such a short provision, yet the EPO makes it do such heavy lifting!Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]OskarThursday, 16 March 2023 at 16:29:00 GMTMar 22 07:56
schestowitz[TR]Well is it really a contradiction? The claims are central and decissive. If a claim is clear in itself, you cannot use the description to interpret it. If the description is not clear in view of the claims (e.g. by a contradiction), it has to be amended, as otherwise, the description does not support the claims.Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]RepliesMar 22 07:56
schestowitz[TR]Proof of the puddingThursday, 16 March 2023 at 17:18:00 GMTMar 22 07:56
schestowitz[TR]Yes, there is a contradiction. It relates to the situation where the claims are clear in themselves. In that instance, the Board:Mar 22 07:56
schestowitz[TR]- would not permit the description to be used to interpret the scope of the claims; butMar 22 07:56
schestowitz[TR]- would nevertheless take the position that the description could modify the skilled person's interpretation of the claims ... and so needs to be brought into strict compliance with the claims.Mar 22 07:56
schestowitz[TR]In other words, depending upon whether it was considering claim scope (eg for added matter or novelty purposes) or support by the description, the Board would take contradictory positions on the issue of whether the description can be used to interpret the claims.Mar 22 07:56
schestowitz[TR]AnonymousThursday, 16 March 2023 at 17:28:00 GMTMar 22 07:56
schestowitz[TR]A84 does not require the description to be clear in view of the claims. The word support in A84 does not imply there must be a one-to-one relationship between the claims and the description. Can a description support multiple different independent claims? Can a bridge support multiple different cars? Can you support multiple different sports teams? As SG says, the meaning of A84 has been stretched by the EPO.Mar 22 07:56
schestowitz[TR]MaxDreiThursday, 16 March 2023 at 18:45:00 GMTMar 22 07:56
schestowitz[TR]Oskar, what disturbs me about your comment is its supposition that either something is "clear" or it is not. No claim ever written has been 100% "clear (although chem/bio probably comes closest and mech eng the most problematic). Lawyers will always find an argument that the degree of clarity in the claim in view is less than 100%. Clarity is one of those things that is approached asymptotically. Quite different in character from paMar 22 07:56
schestowitz[TR]tentable novelty. Is not that why Art 84 was excluded from availability to opponents for vlidity attacks? There would never ever be an opposition that did not include an Art 84 attack on the claims.Mar 22 07:56
schestowitz[TR]Instead, clarity should be acknowledged by EPO ED's (and TBA's) when synthetical propensity says that the claim is "clear enough" to be fit for purpose.Mar 22 07:56
schestowitz[TR]I prefer my "insolubly ambiguous" test. There will be such claims, from time to time. But not often. And when they present themselves, the ED should object to them under Art 84, EPC.Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]AnonymousFriday, 17 March 2023 at 12:50:00 GMTMar 22 07:56
schestowitz[TR]For what it is worth I agree with MaxDrei' remarks on this. The underlying problem with the EPO appears to be a determination to find fault with the patent or application in suit if at all possible, rather than to accept that a claim and associated description can be understood to define a new and inventive invention:" Part I – General and institutional provisionsMar 22 07:56
schestowitz[TR]Chapter I – General provisionsMar 22 07:56
schestowitz[TR]...Mar 22 07:56
schestowitz[TR](3)The task of the Organisation shall be to grant European patents. This shall be carried out by the European Patent Office supervised by the Administrative Council. The ED and TBA seem to think they are there to find new ways to refuse the grant of patentsMar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]AnonymousFriday, 17 March 2023 at 12:55:00 GMTMar 22 07:56
schestowitz[TR]I am really struggling to see any contradiction there, the decision simply states that the support by the description can only be used to the extent that there is a correspondence . If a term has a different meaning in the description, the description cannot be used as a support (although it could be used to amend the feature). This does also not seem to imply that all divergences between claims and description should be removed undMar 22 07:56
schestowitz[TR]er Article 84 EPC, provided (I guess) that there is no indication that such information relates to the invention... but simply that the divergent parts of the description do not provide a valid support for claim interpretation.Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]SantaFriday, 17 March 2023 at 16:08:00 GMTMar 22 07:56
schestowitz[TR]It must be remembered that as doctrine of equivalence becomes increasingly important in litigation in the EPC countries, then what the description says also must be taken into account a lot more (compared to the literal meaning of the claims). Therefore the EPO is performing a vital service to the Courts for making sure the description is in conformity with the claims, and not influencing the equivalence scope in an incorrect mannerMar 22 07:56
schestowitz[TR]. Yes, amending the description is tedious, but it does increase certainty of the equivalence scopeMar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]RepliesMar 22 07:56
schestowitz[TR]Proof of the puddingSaturday, 18 March 2023 at 09:23:00 GMTMar 22 07:56
schestowitz[TR]@SantaMar 22 07:56
schestowitz[TR]As confirmed by T169/20, the EPO does not consider Article 69 EPC during examination. It therefore does not determine the scope of protection, let alone what might be considered to be an "equivalent" of the claimed invention. So why would the EPO then take it upon itself to worry about matters concerning application of the Protocol to Article 69 EPC?Mar 22 07:56
schestowitz[TR]Article 69 EPC either applies to examination proceedings or it does not. The EPO cannot have it both ways.Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]MaxDreiFriday, 17 March 2023 at 20:07:00 GMTMar 22 07:56
schestowitz[TR]So, "Santa" I wonder who you are, to make such a statement. A paid shill for EPO management would be my guess. Here's why.Mar 22 07:56
schestowitz[TR]The importance of this "vital service" delivered by the EPO to courts trying infringement actions can be judged by the fact that i) no other Patent Office in the world performs it, even though ii) (nearly) every other Patent Office in the world is under the thumb of the courts of the jurisdiction in which it operates. Where did the EPO get the idea to perform this "vital service" I might ask. Not from anybody outside the EPO Ivory TMar 22 07:56
schestowitz[TR]ower, was it?Mar 22 07:56
schestowitz[TR]I am not a patent judge. But if I were to be, and required to pronounce on the Doctrine of Equivalents, what would help me most would be i) claims that are clear in themselves and ii) enabled over their scope by a specification which is delivers exactly the disclosure it had on the filing date of the patent application. Then I would be able to see clearly, from the B publication, how much scope the Applicant chose to surrender durinMar 22 07:56
schestowitz[TR]g prosecution at the Patent Office.Mar 22 07:56
schestowitz[TR]That said, I think the EPO is right to i) seek as default a 2-part claim and ii) expand the introductory paragraphs of the specification to include a brief but accurate summary of the prior art most relevant to patentability.Mar 22 07:56
schestowitz[TR]If you think I am wrong, tell us, please, how it is that strict conformity inceases certainty, in the process of DoE. Surely not in the recent widely litigated pemetrexed case which many cite as the reason for EPO intransigence on conformity. You appear to think that it is "a given". Not to me though. And not to most patent litigators either, I suspect.Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]RepliesMar 22 07:56
schestowitz[TR]AnonymousSaturday, 18 March 2023 at 10:16:00 GMTMar 22 07:56
schestowitz[TR]Dear Max Drei,Mar 22 07:56
schestowitz[TR]With due respect to your experience and knowledge, accusing somebody to be a “paid shill for EPO management” is going a trifle too far. Your message would be much more convincing without this accusation.Mar 22 07:56
schestowitz[TR]I would not claim that the EPO is delivering a “vital service” when it insists on the adaptation of the description to the claims, as this is at the very least presumptuous.Mar 22 07:56
schestowitz[TR]If the EPO wants to deliver a “vital service”, it should better react to the criticisms raised by the IPQC about the quality of the patents delivered. But the EPO prefers to deny reality.Mar 22 07:56
schestowitz[TR]The EPO might be the only office requiring a certain tidying of the description to bring it in conformity with the claims, but this is due that it works according to legal provisions which have been decided when the convention was signed and ratified, even after the revision in 2000. Those legal provisions have been interpreted with a large chunk of case law from the BA and the EBA. 3 decisions to the contrary will not change much.Mar 22 07:56
schestowitz[TR]The description is not amended in some countries, within or outside Europe. But then the file prosecution has to be taken into account. What is not acceptable is that people do not want to amend the description, but also not accept that file history is to be taken into account.Mar 22 07:56
schestowitz[TR]Courts in Europe are very reluctant to go into the file history. There is thus only one way to clarify the situation: delete from the description any statements which are in flagrant contradiction with what is claimed. In this respect, I can agree with Rose: you cannot have your cake and eat it.Mar 22 07:56
schestowitz[TR]AnonymousSaturday, 18 March 2023 at 10:32:00 GMTMar 22 07:56
schestowitz[TR]It is difficult to see in how far the EPO tries to have its cake and eat when it comes to claim interpretation.Mar 22 07:56
schestowitz[TR]We are actually in presence of two lines of case law. One could even go as far as to find that they are diverging.Mar 22 07:56
schestowitz[TR]According to the first line of case law the claims have to be interpreted with due regard to the description, and even Art 69(1) is applicable when interpreting the claims in order to assess patentability. As examples of this line of case law, it is possible to quote T 16/87, T 1167/13, T 2773/18 and the more recent T 1473/19.Mar 22 07:56
schestowitz[TR]This first line of case law corresponds to the position of the German Federal Court (BGH). According to its established case law, an interpretation of the patent claim is always required and may not be omitted even if the wording of the claim appears to be unambiguous.Mar 22 07:56
schestowitz[TR]In the decision X ZR 43/13, the GFC added that the principle, that in the event of contradictions between the claim and the description, the claim takes precedence because it is the claim and not the description that defines and thus also limits the protected subject matter. This does however not preclude an understanding of the patent claim from the description and the drawings that differs from that conveyed by the mere wording ofMar 22 07:56
schestowitz[TR] the claim.Mar 22 07:56
schestowitz[TR]According to the second line of case law, if the claims are clear on their own there should be no recourse to the description in order to interpret the claims. That claims are never 100% clear, cf. Max Drei, is not at stake here, but looking at a claim with synthetical propensity, should help weeding out interpretations which would never be considered by the skilled person. This is valid not only as far as clarity is at stake, but aMar 22 07:56
schestowitz[TR]lso when it comes to sufficiency. Next to the present decision T 169/20, it is possible to quote T 197/10, T 1646/12, T 1514/14 and T 2475/18.Mar 22 07:56
schestowitz[TR]Art 69(1) should however be applied in opposition when determining under Art 123(3), cf. T 1279/04.Mar 22 07:56
schestowitz[TR]It would thus be interesting to hear the EBA on the following questions:Mar 22 07:56
schestowitz[TR]1) Should Art 69(1) and its protocol exclusively be used when determining the extent of protection under Art 123(3)?Mar 22 07:56
schestowitz[TR]2) Can Art 69(1) and its protocol be used when assessing the patentability requirements under Art 54, 56, 83 84 and 123(2)?Mar 22 07:56
schestowitz[TR]3) If the answer to question 2 is positive, which conditions should apply?Mar 22 07:56
schestowitz[TR]In view of the developments with respect to the support of the description by the claims, it is possible to consider that T 169/20, does not approve the contrary decisions T 1989/18, T 1444/20 and T 2194/19 according to which the description does not have to be adapted to the claims.Mar 22 07:56
schestowitz[TR]The above considerations do however show that we could end up with problems when it comes to novelty, added subject-matter or validity of the priority, should Art 69(1) and its Protocol be applicable outside the determination of the scope of protection. With a rather “flexible” or even no adaptation of the description to the claims, the situation would be worse.Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]Francis HagelSaturday, 18 March 2023 at 14:39:00 GMTMar 22 07:56
schestowitz[TR]@SantaMar 22 07:56
schestowitz[TR]I agree with @Maxdrei. It is outside the EPO’s remit to try to interfere with the handling of infringement cases by national courts, and tomorrow by the EPC. This is well established in the case law of the BOAs and I see T 169/20 as a major stride in that it has set the record straight on this issue, by stating that the application of Art 69 by the EPO is exceptional. This removes the « legal certainty » concern which the EPO haMar 22 07:56
schestowitz[TR]s put forward to justify its practice of requiring the adaptation of the description after claim amendments.Mar 22 07:56
schestowitz[TR]As to the interaction of the description with the claims, T 169/20 makes it clear what we all know i.e. the description provides information which is necessary for skilled persons (and practitioners) to understand the claims, to make sense of the terms of the claims, understand their interrelations. But this is to be distinguished from the interpretation as referred to in Art 69.Mar 22 07:56
schestowitz[TR]Regarding the Pemetrexed saga, it is of note that there has been a striking unanimity of European national courts as to the outcome. I have elaborated on the subject in a paper I published this week in epi information (but T 169/20 is not discussed as it was published after I wrote the piece).Mar 22 07:56
schestowitz[TR]As previous comments have pointed out, the EPO is isolated in its practice, which is why I have suggested in this paper to include the topic into the scope of the EPO’s « Convergence of practice » programme, with the goal of finding common ground with the European national patent offices.Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]AnonymousMonday, 20 March 2023 at 11:30:00 GMTMar 22 07:56
schestowitz[TR]While there is ample scope to disagree over the extent to which description adaptation should be required, I think we can all agree that the EPO has created a total mess of the situation. The heated arguments that arise this topic are Exhibit A for this.Mar 22 07:56
schestowitz[TR]We now have a situation where if you limit the claims, you have to go back and amend any part of the description that was originally broader. In many cases, this will be permitted - the basis for the description amendments will be the same as the basis for the claim limitation. However, given the often swingeing amendments that are being made the pre-condition of grant, it is inevitable that some of these amendments will be considerMar 22 07:56
schestowitz[TR]ed to add subject matter.Mar 22 07:56
schestowitz[TR]So while description adaptation is for now just the patent prosecutor's nightmare, we will soon be in a position where no EPO notice of opposition will be complete without a side-by-side analysis of the description as filed and as granted and a 10 page submission from the opponent on why the description amendments add subject matter. What happens then? Can the proprietor reverse them, or would this violate Article 123(3) EPC by broaMar 22 07:56
schestowitz[TR]dening the interpretation of the claims, or Article 84 EPC by introducing an inconsistency between the description and the claims. Do we have to delete huge chunks of the description? What impact will this have on Article 83 EPC?Mar 22 07:56
schestowitz[TR]The same will appear in the national courts and in the UPC. So what is a fad introduced by some faceless official in a few versions of the Guidelines will dog patent litigation across Europe for at least the next 20 years.Mar 22 07:56
schestowitz[TR]Nobody will thank the EPO for this.Mar 22 07:56
schestowitz[TR]It is all the more tragic because we all know that this is totally unnecessary. The national courts have decades of experience of interpreting claims which are narrower than the accompanying description and, save for extreme cases, are perfectly competent at arriving at technically sensible interpretations of the claims that take into account the field of technology, the level of understanding of the skilled person, the language of Mar 22 07:56
schestowitz[TR]the claims themselves, the teaching in the description, and accepted principles of claim interpretation in other European courts. The EPO does not need to put its hand on the tiller.Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]RepliesMar 22 07:56
schestowitz[TR]Proof of the puddingMonday, 20 March 2023 at 16:00:00 GMTMar 22 07:56
schestowitz[TR]Well said.Mar 22 07:56
schestowitz[TR]It would be nice if, just once, the EPO would acknowledge the possibility that their practice at least arguably generates legal risks for applicants that accede to demands for "strict" alignment between the claims and the description.Mar 22 07:56
schestowitz[TR]However, listening to and understanding (let alone publicly acknowledging) "contrary" positions does not seem to be within the skill set of the EPO's current management. Exhibit A: the EPO's ridiculously dismissive responses to serious and well-founded concerns regarding the ST.26 conversion requirements for divisionals of pre-July 2022 applications.Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]Proof of the puddingMonday, 20 March 2023 at 11:35:00 GMTMar 22 07:56
schestowitz[TR]Upon reflection, I think that the EPO's contradictory approaches to clarity and support have a simple explanation. That is, it seems to me that the EPO is interpreting the requirement for the claims to be "supported by the description" as referring to:Mar 22 07:56
schestowitz[TR](1) support by the whole of the description (see, for example, T1024/18); andMar 22 07:56
schestowitz[TR](2) support for the subject matter defined by the wording of the claims.Mar 22 07:56
schestowitz[TR]We can debate the first point until the cows come home. Personally, I am persuaded that the "majority" case law on that point is wrong, and that support is indeed a de minimis requirement (as confirmed, for example, by old case law indicating that the support requirement can be met when the subject matter of an original claim is copied and pasted into the description).Mar 22 07:56
schestowitz[TR]However, I think that it is on the second point where the EPO's approach truly comes unstuck. This is because the "majority" case law on the support requirement seems to demand complete alignment between the description and the claims without stopping to consider precisely which subject matter should be "supported" in the sense of Article 84 EPC.Mar 22 07:56
schestowitz[TR]The three requirements set out in the second sentence of Article 84 EPC (clarity, conciseness and support) simply refer to "the claims". But what does this mean? Is it:Mar 22 07:56
schestowitz[TR](a) the wording of the claims; orMar 22 07:56
schestowitz[TR](b) the matter for which protection is sought (as per the 1st sentence of Article 84 EPC)?Mar 22 07:56
schestowitz[TR]The EPO's approach clearly assumes that the answer is option (a). However, combined with the "support by whole description" approach, this means that the EPO will insist upon certain disclosures of a description either being deleted or marked as "not the invention as claimed" without ever having considered whether those disclosures in fact support the claimed subject matter under option (b).Mar 22 07:56
schestowitz[TR]To my mind, there are good reasons to conclude that option (b) is the correct answer. Of course, interpreting support in the sense of option (b) above would mean considering Article 69 EPC for all (clarity and support) matters under Article 84 EPC. I can therefore understand why the EPO might not want to do that. But having effectively made the decision to leave Article 69 EPC matters to national courts, the EPO should apply the samMar 22 07:56
schestowitz[TR]e logic to other matters where Article 69 EPC is clearly relevant ... which include matters of support.Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]SantaMonday, 20 March 2023 at 12:25:00 GMTMar 22 07:56
schestowitz[TR]Thank you for all your comments. I'm sorry I don't have the time to respond to each in detail. My comment comes from my experiences in the UK trying to advise clients on equivalence scope. I think we are at the early stages of development of our UK case law on this, but inevitably we need to look at what the description says to see what the technical effect and problem is. I believe when the applicant must make some sort of judgemenMar 22 07:56
schestowitz[TR]t on how subject matter in the description relates to the allowed claims, it is potentially helpful to third parties. I believe the EPO has an eye on how equivalence scope case law develops across Europe, and probably realises it is its own strict view on added matter that has led to a greater leniency developing on equivalence (i.e. greater scope being allowed) in recent years. The EPO is probably looking to have some influence on Mar 22 07:56
schestowitz[TR]how equivalence scope is decided based on its view of technical effect, and potentially one avenue that is being explored is to engineer into the amended description how equivalence should be determined. If I am correct on this, I do think it is helpful to third parties, as I believe 'equivalence' renders infringement scope to be so unpredictable that a lot of work done by the EPO to issue good clear fair claims is undermined.Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]RepliesMar 22 07:56
schestowitz[TR]Proof of the puddingMonday, 20 March 2023 at 15:51:00 GMTMar 22 07:56
schestowitz[TR]Santa, thank you for your explanation. You are entitled to your opinion. With regard to the current state of case law in the UK, I can certainly sympathise with the difficulty of advising clients upon equivalence scope. However, what you are essentially asking for is for Article 69 and its Protocol to be struck from the EPC.Mar 22 07:56
schestowitz[TR]Whilst it might increase the challenges that third parties face in determining their FTO, I think that Article 69 and its Protocol serve the important function of balancing certainty for third parties with a fair reward for the disclosure of an invention. In this regard, might I suggest that you instead focus your attention on the question of how UK case law regarding equivalents might (need to) be improved. My own suggestion on thaMar 22 07:56
schestowitz[TR]t point would be to revert to assessing equivalents based upon the knowledge of the skilled person at the priority date of the patent. What do you think?Mar 22 07:56
schestowitz[TR]SantaTuesday, 21 March 2023 at 09:43:00 GMTMar 22 07:56
schestowitz[TR]Thank you for Proof of the Pudding. I apologise for the briefness of this reply as your comment raises very interesting issues. So just to summarise my previous point, I believe that the EPO does care about how its practices impact on litigation, and will 'behind the scenes' try to change practice and case law to minimise difficulties in litigation, and at this time I believe EPO Board Members and national court judges are probably Mar 22 07:56
schestowitz[TR]discussing concerns about unpredictability of equivalence scope and how to fix this (possibly by the way the description is amended). Turning to your comment, in my experience equivalence scope is decided vis a vis the infringement, i.e. it is essentially specific to the infringement in question. Therefore deriving 'better rules' for it is difficult, and it will need to happen by empirical development of case law. So now the questioMar 22 07:56
schestowitz[TR]n is what experiments to perform in which parts of the system to see if it fixes the unpredictability. Changes to amending the description is a good place to start, as it is essentially 'harmless' in terms of minimal damage to patentee and third parties (and of course provides entertaining case law!). Anyway, that is my opinion on what the powers that be might be doing/considering at the moment. Thank you againMar 22 07:56
schestowitz[TR]Proof of the puddingTuesday, 21 March 2023 at 17:49:00 GMTMar 22 07:56
schestowitz[TR]Santa, thank you for your explanation.Mar 22 07:56
schestowitz[TR]My view is that the EPO's "new" description adaptation practice is far from being "harmless" (to patentees). See my detailed comment addressed to Anon below.Mar 22 07:56
schestowitz[TR]In any event, do you not think it odd that the EPO has changed its practice simply in order to "fix" alleged problems with the case law of national courts? Indeed, is this situation not made more absurd by the fact that the alleged "problem" relates to a matter (determining extent of protection, in particular by reliance upon Article 2 of the Protocol to Article 69 EPC) that is not the EPO's concern?Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]AnonymousMonday, 20 March 2023 at 15:40:00 GMTMar 22 07:56
schestowitz[TR]In a further decision, T 821/20, published on 20.03.2023, the board held that it is neither necessary nor justified to interpret the claim in the light of the description.Mar 22 07:56
schestowitz[TR]In this respect the Board cited T 169/20 (points 1.4.3 and 1.5), see above, and T 1127/16, point 2.6. 1), which held that where the claim language is clear and technically reasonable in the underlying technical context, there is no justification for relying on the description to restrict the scope of the claim by excluding interpretations which are both reasonable and technically sensible in the technical context of the patent.Mar 22 07:56
schestowitz[TR]For the board it would be tantamount to rewarding ambiguous claim drafting by allowing the proprietor to rely on the description to narrow the claim's subject matter to his or her liking rather than clarifying the claim's subject matter.Mar 22 07:56
schestowitz[TR]The board did not enter the discussion on the adaptation of the description to the claims, but it can be taken that any discrepancy between the claim and the description should not be interpreted in favour of the proprietor.Mar 22 07:56
schestowitz[TR]It remains that the present decision shows once more that a referral to the EBA in order to clarify the situation whether or not the description is to be taken into account when interpreting claims is highly necessary.Mar 22 07:56
schestowitz[TR]Whether the question of the adaptation of the description to the claims should also be discussed during this referral remains open. A decision on the interpretation of the claims with or without recourse to the description could indirectly give an answer to the question of the adaptation of the description to the claims.Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]AnonymousMonday, 20 March 2023 at 16:57:00 GMTMar 22 07:56
schestowitz[TR]@ Proof of the puddingMar 22 07:56
schestowitz[TR]When Proof of the pudding is persuaded that the "majority" case law on adaptation of the description to the claims is wrong, it would be interesting to know which case law he is referring to.Mar 22 07:56
schestowitz[TR]I have strong doubts when he claims that the support requirement can be met when the subject matter of an original claim is copied and pasted into the description.Mar 22 07:56
schestowitz[TR]I refer to T 1039/08 in which the applicants/appellants held that the fact that the description stated that "Aspects of the invention are set out in the accompanying claims" meant that the claims are supported by the description (page 4, third paragraph of the statement setting out the grounds of appeal).Mar 22 07:56
schestowitz[TR]For the board, this purely formal statement does not qualify as a proper description of the claimed subject-matter. The definitions in claim 1 are much more general and, in fact, do not specify any of these aspects. The description therefore does not provide support for a method defined in the general terms of claim 1.Mar 22 07:56
schestowitz[TR]In a more recent decision, T 758/13, the board held that the purely formal support by the description through repetition of the mention of a claimed feature does not meet the requirements of Art 84 for support of the claims.Mar 22 07:56
schestowitz[TR]In an even more recent decision, T 2483/16, the board held that a purely formal support, e. g. a verbatim repetition in the description of a claimed feature, is not sufficient for fulfilling the requirement of support by the description. The board also referred to T 127/02 and T 1048/05.Mar 22 07:56
schestowitz[TR]In T 1694/12, the board reminded that Art. 84 stipulates that the claims must be supported by the description. According to established jurisprudence of the Boards, this requirement means that the subject-matter of the claim must be taken from the description and it is not admissible to claim something which is not described. I would conclude a contrario, that what is described must correspond to what is claimed.Mar 22 07:56
schestowitz[TR]The board added that the requirement of support by the description reflects the general legal principle that the extent of the patent monopoly, as defined by the claims, should correspond to the technical contribution to the art in order for it to be supported, or justified (see T 133/85, OJ EPO 1988, 441). This means that the definitions in the claims should essentially correspond to the scope of the invention as disclosed in the dMar 22 07:56
schestowitz[TR]escription. In other words, if the claims are restricted, this restriction should appear in the description.Mar 22 07:56
schestowitz[TR]In T 2080/10 the board found no less than three occurrences for lack of support of the claims by the description. For instance, a specific passage in the description did not provide support within the meaning of Art 84 for the broad scope of the claim. Conversely, when the claim is limited in scope, the description cannot contain any statement by which the scope could be extended beyond what is actually claimed.Mar 22 07:56
schestowitz[TR]In T 2196/11, the board held that AR 7 and 8 were not supported by the description. In those AR, a feature which was previously in dependent claim 6 was combined with claim 1 as granted. The description in the patent, § 0006, states which features are provided according to the invention, whereas § 0011 states that the feature which has been introduced from granted claim 6 is merely a feature "according to an additional embodiment"Mar 22 07:56
schestowitz[TR] of the invention. Moreover, this feature is in contradiction with the feature referred to in another additional embodiment (see § 0010) which states that the high density zones continuously extend in one (the longitudinal) direction. It is thus evident that even if it were assumed that the claims of the requests 7 or 8 were allowable, the lack of amended description pages which were consistent with the amended independent claim ofMar 22 07:56
schestowitz[TR] either request contravenes at least Art 84 according to which the claims should be supported by the description.Mar 22 07:56
schestowitz[TR]What else is there to add?Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]RepliesMar 22 07:56
schestowitz[TR]Proof of the puddingTuesday, 21 March 2023 at 09:54:00 GMTMar 22 07:56
schestowitz[TR]@AnonMar 22 07:56
schestowitz[TR]As I made clear, I was simply expressing my own opinion. You are welcome to disagree. Indeed, CLBA at II.A, 5.1 outlines the line of case law that you cite to support your view (though I note that it also supports "dissenting" case law that you did not mention, such as T1020/03).Mar 22 07:56
schestowitz[TR]However, you seem to have entirely missed the point of my contribution, which was to discuss precisely what it is in "the claims" that should be "supported by the description".Mar 22 07:56
schestowitz[TR]According to the CLBA:Mar 22 07:56
schestowitz[TR]"Many boards further stress that the requirement for the claims to be supported by the description was intended to ensure that the extent of protection as defined by the patent claims corresponds to the technical contribution of the disclosed invention to the art.Mar 22 07:56
schestowitz[TR]It is a debatable point whether the "technical contribution" principle has much relevance to Article 84, 2nd sentence. This is because it seems to me that this principle has much more to do with Articles 83 and 56 (especially with regard to claim breadth and "plausibility"). I would also vigorously dispute that this principle can be relied upon to turn the plain meaning of Article 84, 2nd sentence on its head, from "what is claimed Mar 22 07:56
schestowitz[TR]must be described" to "what is described must be claimed".Mar 22 07:56
schestowitz[TR]Regardless, there is a bigger problem with the Boards' reliance upon that principle to derive a requirement for "strict" adaptation of the description. On the one hand, the Boards espouse a principle based upon correspondence between the "technical contribution of the disclosed invention" and "the extent of protection as defined by the patent claims". On the other, however, the Boards refuse to determine the extent of protection conMar 22 07:56
schestowitz[TR]ferred by the claims (as per Article 69 EPC and its Protocol). That disconnect seems to me to cast serious doubts upon the validity of the EPO's description adaptation practice ... and suggests that the EPO would be better off leaving descriptions well alone, or at least not requiring applicants to label disclosures as being either "in" or "out" of a scope of protection that has not been determined.Mar 22 07:56
schestowitz[TR]AnonymousTuesday, 21 March 2023 at 15:23:00 GMTMar 22 07:56
schestowitz[TR]@ Proof of the puddingMar 22 07:56
schestowitz[TR]I certainly did not miss the point of your contribution, which was to discuss precisely what it is in "the claims" that should be "supported by the description". You started by claiming that it is enough to repeat verbatim the claims in order for the description to support the claims. This statement of yours is not correct. See the decisions quoted. You carefully avoided to comment on this point.Mar 22 07:56
schestowitz[TR]You attempt to continue confusing the issues by quoting T 1020/03. This decision is an old decision about first and second medical indications. In this decision, in point 10 of the reasons, the board dealt with the support of the claim by the description in this specific case. At the end of point 10, the board simply stated that Art 84 cannot be invoked to compel an applicant to limit the scope of his claims directed to a first or fMar 22 07:56
schestowitz[TR]urther medical use if these are considered too broad in comparison with the use disclosed in the description. To conclude that the description does not have to be adapted to the claims is nowhere to be found in this decision and is going a trifle too far.Mar 22 07:56
schestowitz[TR]In CLBA, AII, 5.1, 10th edition 2022, at the beginning of this chapter, it is specified that “the requirement of support by the description means that the subject-matter of the claim must be taken from the description and it is not admissible to claim something which is not described”.Mar 22 07:56
schestowitz[TR]From this statement, I would conclude, contrary to you, that in order to be supported by the description that there has to be a two-way relationship between claims and description. What is claimed has to be described and what is claimed cannot be found in a more generalised form in the description. But this is what you actually would like to do.Mar 22 07:56
schestowitz[TR]It is only further down that comes your quote: “Many boards further stress that the requirement for the claims to be supported by the description was intended to ensure that the extent of protection as defined by the patent claims corresponds to the “technical contribution” of the disclosed invention to the art”.Mar 22 07:56
schestowitz[TR]I fail to see how this statement can be turned the way you turn it. This statement does not allow a different conclusion from the one which can be drawn from the statement at the beginning of the chapter A,II, 5.1. The “technical contribution” in the description has to be commensurate with what is claimed. If the claims are limited during examination, the description cannot give the impression that the “technical contributionMar 22 07:56
schestowitz[TR]” is greater than what is claimed.Mar 22 07:56
schestowitz[TR]Contrary to you, I am of the opinion that "what is claimed must be described" and "what is described must be claimed". When a national court applying Art 69(1) and its protocol defines its own doctrine of equivalents, it is perfectly entitled to do so.Mar 22 07:56
schestowitz[TR]As far as Art 69 is concerned, it is only be applied at the EPO in opposition/appeal on opposition when deciding whether the amended claims comply or not with the requirements or Art 123(3).Mar 22 07:56
schestowitz[TR]Any other application of Art 69(1) and of its protocol during prosecution of an application would water down the very clear line of case relating to what has been directly and unambiguously disclosed in an application/patent or in the prior art. This applies to novelty, added subject-matter as well as identity of invention when it comes to validly claim priority.Mar 22 07:56
schestowitz[TR]It would create a great deal of confusion. That as proprietor you would like to be able to leave some doubts about the extent of protection or disclosure is understandable. That you would not be pleased with this stance when you are a third party or an opponent is also understandable. In other words, you cannot have your cake and eat it.Mar 22 07:56
schestowitz[TR]I have never seen a division of first instance or a board, when requiring to adapt the description to the claims, to come up with requirements relating to the scope of protection that has not been determined.Mar 22 07:56
schestowitz[TR]There has to be a two-way relationship between claims and description, and in spite of three recent decisions to the contrary, it is rightly so. There is not much more to add.Mar 22 07:56
schestowitz[TR]Proof of the puddingTuesday, 21 March 2023 at 17:38:00 GMTMar 22 07:56
schestowitz[TR]@AnonMar 22 07:56
schestowitz[TR]I do not "carefully avoid" the majority case law on description adaptation. It is just that, whilst I disagree with that case law (but instead side with T1989/18), I do not wish to waste any more time discussing arguments for and against the alleged "what is described must be claimed" requirement.Mar 22 07:56
schestowitz[TR]From your most recent contribution, it seems that you are of the view that the description must be aligned with the wording of the claims (as opposed to anything else, such as "the extent of protection as defined by the patent claims"). Is that correct?Mar 22 07:56
schestowitz[TR]In any event, I would ask you to accept as a fact that there are others, such as I, who genuinely, and not due to any sinister motivations, believe that aligning the description in this way can have the effect of preventing national courts from reaching their own conclusions on which embodiments of the original description fall within the extent of protection conferred by the claims.Mar 22 07:56
schestowitz[TR]This is not just because of the Protocol to Article 69. It is because, during examination, the EPO rarely if ever takes the time to weigh (competing) expert evidence and/or detailed arguments upon the meaning of key terms in a claim. Examiners simply do not have the time to consider the wording of the claims in such depth. It is therefore inevitable that, at least on occasion, examiners will inadvertently misconstrue the wording of Mar 22 07:56
schestowitz[TR]the claims. (Indeed, there is abundant evidence from the outcomes of opposition proceedings to suggest that it is fairly common for examiners to not fully appreciate the true meaning of certain terms in the claims.) It is also inevitable that, on occasion, neither the applicant nor their representative will spot the fact that the claim has been misconstrued by the EPO.Mar 22 07:56
schestowitz[TR]With the EPO's "old" description amendment practice, such errors, even if commonplace, rarely caused any lasting damage. However, the same cannot be said for the EPO's new practice, which effectively requires all embodiments of the description to be labelled either "the claimed invention" or "not the claimed invention". This is because, if there has been a misunderstanding as to the precise scope of the claimed invention, there is aMar 22 07:56
schestowitz[TR] good chance that at least some of the "in" and "out" labels have been wrongly applied.Mar 22 07:56
schestowitz[TR]So what happens when an embodiment of the description falls within the scope of the claims upon their proper interpretation, but has nevertheless been labelled as "not the claimed invention"? Would a national court ignore the label, or instead treat it as an effective disclaimer of the relevant claim scope? If national courts chose the former option (ie ignoring the label), this would surely make it pointless for the EPO to continueMar 22 07:56
schestowitz[TR] with their efforts on adapting the description. However, if the national courts chose the latter option, this could have disastrous consequences for the patentee (including inadequate reward for their disclosure of the invention and possible invalidity due to the "label" adding subject matter to the description).Mar 22 07:56
schestowitz[TR]With such potential pitfalls from the EPO's "new" practice, I suppose that an important question to answer is whether (in number and severity) those outweigh the potential pitfalls of the EPO's "old" practice. It is too soon for the pitfalls of the "new" practice to have played out in national courts. However, the opposite is true for the "old" practice, which was in place for decades. From this perspective, I am mystified as to whaMar 22 07:56
schestowitz[TR]t drove the change from "old" to "new". This is because, having searched high and low, I have failed to locate a case where a "wrong" (or arguably unfair) decision of a national court could in any way be attributed to the EPO's "old" practice. I wish I had confidence that things will work out the same way for the "new" practice.Mar 22 07:56
schestowitz[TR]ReplyMar 22 07:56
schestowitz[TR]AnonymousMonday, 20 March 2023 at 20:44:00 GMTMar 22 07:56
schestowitz[TR]In a comment it has been alleged that the "majority" case law on adaptation of the description to the claims is wrong. It would be interesting to know which case law is referred to.Mar 22 07:56
schestowitz[TR]I have strong doubts when it is claimed that the support requirement can be met when the subject matter of an original claim is copied and pasted into the description.Mar 22 07:56
schestowitz[TR]I refer to T 1039/08 in which the applicants/appellants held that the fact that the description stated that "Aspects of the invention are set out in the accompanying claims" meant that the claims are supported by the description (page 4, third paragraph of the statement setting out the grounds of appeal).Mar 22 07:56
schestowitz[TR]For the board, this purely formal statement does not qualify as a proper description of the claimed subject-matter. The definitions in claim 1 are much more general and, in fact, do not specify any of these aspects. The description therefore does not provide support for a method defined in the general terms of claim 1.Mar 22 07:56
schestowitz[TR]In a more recent decision, T 758/13, the board held that the purely formal support by the description through repetition of the mention of a claimed feature does not meet the requirements of Art 84.Mar 22 07:56
schestowitz[TR]In an even more recent decision, T 2483/16, the board held that a purely formal support, e. g. a verbatim repetition in the description of a claimed feature, is not sufficient for fulfilling the requirement of support by the description. The board also referred to T 127/02 and T 1048/05.Mar 22 07:56
schestowitz[TR]In T 1694/12, the board reminded that Art. 84 stipulates that the claims must be supported by the description. According to established jurisprudence of the Boards, this requirement means that the subject-matter of the claim must be taken from the description and it is not admissible to claim something which is not described.Mar 22 07:56
schestowitz[TR]The board added that the requirement of support by the description reflects the general legal principle that the extent of the patent monopoly, as defined by the claims, should correspond to the technical contribution to the art in order for it to be supported, or justified (see T 133/85, OJ EPO 1988, 441). This means that the definitions in the claims should essentially correspond to the scope of the invention as disclosed in the dMar 22 07:56
schestowitz[TR]escription. In other words, if the claims are restricted, this restriction should appear in the description.Mar 22 07:56
schestowitz[TR]In T 2080/10 the board found no less than three occurrences for lack of support of the claims by the description. For instance, a specific passage in the description did not provide support within the meaning of Art 84 for the broad scope of the claim. Conversely, when the claim is limited in scope, the description cannot contain any statement by which the scope could be extended beyond what is actually claimed.Mar 22 07:56
schestowitz[TR]In T 2196/11, the board held that AR 7 and 8 were not supported by the description. In those AR, a feature which was previously in dependent claim 6 was combined with claim 1 as granted. The description in the patent, § 0006, states which features are provided according to the invention, whereas § 0011 states that the feature which has been introduced from granted claim 6 is merely a feature "according to an additional embodiment"Mar 22 07:56
schestowitz[TR] of the invention. Moreover, this feature is in contradiction with the feature referred to in another additional embodiment (see § 0010) which states that the high density zones continuously extend in one (the longitudinal) direction. It is thus evident that even if it were assumed that the claims of the requests 7 or 8 were allowable, the lack of amended description pages which were consistent with the amended independent claim ofMar 22 07:56
schestowitz[TR] either request contravenes at least Art 84 according to which the claims should be supported by the description.Mar 22 07:56
schestowitz[TR]What else is there to add?"Mar 22 07:56
-TechBytesBot/#techbytes-patentlyo.com | Is “Insolubly Ambiguous” the Correct Standard for Indefiniteness? | Patently-OMar 22 07:58
*psydroid2 (~psydroid@u8ftxtfux23wk.irc) has joined #techbytesMar 22 11:42
schestowitz[TR]"Mar 22 14:46
schestowitz[TR]Dear colleagues,Mar 22 14:46
schestowitz[TR]Following the ILOAT judgement 4482, in which it is affirmed that freedom of association implies the right for staff associations to regulate their own affairs, including the manner in which staff representatives are elected,Mar 22 14:46
schestowitz[TR]We would like to invite you to join our upcoming General Assembly, in preparation for the elections for your Staff Representatives, which will be held in May-June 2023.Mar 22 14:46
schestowitz[TR]The newly elected Staff Committee is set to start their mandate on 1 July 2023.Mar 22 14:46
schestowitz[TR]The General Assembly will take place on Wednesday, 29 March, 11:00 onwards, in hybrid format (Shell Auditorium and MS Teams).Mar 22 14:46
schestowitz[TR]Click here to join the meeting - Click here to add to your calendarMar 22 14:46
schestowitz[TR]The purpose of this GA is twofold:Mar 22 14:46
schestowitz[TR]Adopt the election rules which will govern the elections for the Local Staff Committee The Hague; andMar 22 14:46
schestowitz[TR]Nominate an election committee which will facilitate the election process.Mar 22 14:46
schestowitz[TR]"Mar 22 14:46
schestowitz[TR]Wednesday March 29th, 11:00: General Assembly of Staff the Hague - election rules and election committeeMar 22 14:46
schestowitz[TR]"Mar 22 14:46
schestowitz[TR]Please find here further background information regarding why all of this is happening now and the rationale behind the proposed election rules.Mar 22 14:46
schestowitz[TR]With the outgoing Staff Committee, we tried to draft a coherent set of election rules, starting from the rules we used in the past, and attempting to keep them consistent with the rules proposed at the other places of employment. We do realise fully well that all needed to happen in a very short timeframe. We count on your kind understanding for this limited period in which we can consult staff – and hope that the newly elected StMar 22 14:46
schestowitz[TR]aff Committee will have some time to apply the lessons learned from this exercise.Mar 22 14:46
schestowitz[TR]"Mar 22 14:46
schestowitz[TR]"The SUEPO committee is happy to invite you to an online Meeting on Wednesday, March 15 starting at 10.30 a.m. for about half an hour.Mar 22 14:47
schestowitz[TR] We would like to chat with you informally on the outlook for the coming timeMar 22 14:47
schestowitz[TR]- Everything which is in your mind for sharing or asking!Mar 22 14:47
schestowitz[TR]- Communication with Staff Committees and SUEPO committeeMar 22 14:47
schestowitz[TR]- BTT projectMar 22 14:47
schestowitz[TR]- Workload and staffing levelMar 22 14:47
schestowitz[TR]- Health reformMar 22 14:47
schestowitz[TR]- Education allowance reform"Mar 22 14:47
schestowitz[TR]https://twitter.com/IiiHeffron/status/1636012248064827393Mar 22 15:22
-TechBytesBot/#techbytes-@IiiHeffron: https://t.co/gyrVwFnGBD say it ain't so King Charles..prince bill...prince William if you get my concernMar 22 15:22
-TechBytesBot/#techbytes--> techrights.org | “The Lolita Express” and Prince Bill | TechrightsMar 22 15:22
schestowitz[TR]https://twitter.com/ThiccTeh/status/1635717833395929095Mar 22 15:23
-TechBytesBot/#techbytes-@ThiccTeh: @Alejandroid1979 @FOSSpatents has deep ties with Microsoft and has campaigned for them numerous times.… https://t.co/P30Vr7ITSMMar 22 15:23
schestowitz[TR]"@FOSSpatentsMar 22 15:23
schestowitz[TR] has deep ties with Microsoft and has campaigned for them numerous times.  http://techrights.org/wiki/Florian_M%C3%BCllerMar 22 15:23
schestowitz[TR]He is arguably one of the most biased and compromised sources on these proceedings as you can get.Mar 22 15:23
schestowitz[TR]"Mar 22 15:23
-TechBytesBot/#techbytes-techrights.org | Florian Müller - TechrightsMar 22 15:23
schestowitz[TR]https://twitter.com/montecristo1843/status/1635635299584733185Mar 22 15:23
-TechBytesBot/#techbytes-@montecristo1843: @Bonmarin14 @UEFrance @ThierryBreton @BFMTV @RMCInfo ce type est un fléau, l'un des fossoyeurs de notre patrimoine… https://t.co/sgsGRhLdlqMar 22 15:23
schestowitz[TR]"ce type est un fléau, l'un des fossoyeurs de notre patrimoine industriel sans parler des suicides chez France Telecom, des magouilles de dingue style Rhodia/Rhone Poulenc etc..voir:"Mar 22 15:23
schestowitz[TR]https://twitter.com/NathanDw9/status/1635633430380568577Mar 22 15:23
-TechBytesBot/#techbytes-@NathanDw9: @MikaDima1 @FOSSpatents @Gaming_Forever1 It’s not even a hidden agenda. There is a whole wiki sort of page dedicate… https://t.co/wg3B9TUgKDMar 22 15:23
schestowitz[TR]https://twitter.com/Panopticumhr/status/1634196517299822594Mar 22 15:24
-TechBytesBot/#techbytes-@Panopticumhr: @N1infoZG Da, narocito ovaj fini gospodin kao novi clan vijeca AEM-a... https://t.co/hJlDFLwOk2Mar 22 15:24
schestowitz[TR]https://twitter.com/anarchotaoist/status/1633615625628323840Mar 22 15:24
-TechBytesBot/#techbytes-@anarchotaoist: CoC Extremism Has Cost Debian (and Its Derivatives) the Main KDE Maintainer https://t.co/mknU7N3SYPMar 22 15:24
-TechBytesBot/#techbytes--> techrights.org | CoC Extremism Has Cost Debian (and Its Derivatives) the Main KDE Maintainer | TechrightsMar 22 15:24
schestowitz[TR]https://twitter.com/zoobab/status/1632780711122935808Mar 22 15:25
-TechBytesBot/#techbytes-@zoobab: EPO staff complaining about its management pushing to "grant as many patents as possible", #FollowTheMoney… https://t.co/OWwazbNDdTMar 22 15:25
-TechBytesBot/#techbytes-@zoobab: EPO staff complaining about its management pushing to "grant as many patents as possible", #FollowTheMoney… https://t.co/OWwazbNDdTMar 22 15:25
schestowitz[TR]"EPO staff complaining about its management pushing to "grant as many patents as possible", #FollowTheMoney #SelfFinanced"Mar 22 15:25
schestowitz[TR]https://twitter.com/GinaMacina60/status/1632374614184669187Mar 22 15:25
-TechBytesBot/#techbytes-@GinaMacina60: ⛳️Wikileaks/CableGate reveals Bill Gates Microsoft worked closely with governments. 🟥Microsoft gives them access… https://t.co/VO1tE1eTE0Mar 22 15:25
-TechBytesBot/#techbytes-@GinaMacina60: ⛳️Wikileaks/CableGate reveals Bill Gates Microsoft worked closely with governments. 🟥Microsoft gives them access… https://t.co/VO1tE1eTE0Mar 22 15:25
schestowitz[TR]"⛳️Wikileaks/CableGate reveals Mar 22 15:26
schestowitz[TR]Bill Gates Microsoft worked closely with governments. Mar 22 15:26
schestowitz[TR]🟥Microsoft gives them access to source code.Mar 22 15:26
schestowitz[TR]🟥“US embassy cables: China uses access to Microsoft source code to help plot cyber warfare, US fears”"Mar 22 15:26
schestowitz[TR]https://twitter.com/Penguin_Pete/status/1631030111473377280Mar 22 15:26
-TechBytesBot/#techbytes-@Penguin_Pete: @openAI Take your #FrankenSPAM nightmare and rot in hell with it! https://t.co/wSFEdCEmb3Mar 22 15:26
schestowitz[TR]https://twitter.com/NathanDw9/status/1628509468341198850Mar 22 15:27
-TechBytesBot/#techbytes-@NathanDw9: @ChipsChipChip @FOSSpatents @Chris_Dring https://t.co/MavzM3b4g9 Bruh, he has history of been accused as a Microsoft shill ☠️Mar 22 15:27
schestowitz[TR]https://twitter.com/followingmyart/status/1626435523438084097Mar 22 15:27
-TechBytesBot/#techbytes-@followingmyart: @DanCox460 @tweetKlam @BorisBrodski @MattWallace888 it's more than just DOS. I'd do a list for you but tech… https://t.co/8OusqLhUdwMar 22 15:27
*psydroid2 has quit (connection closed)Mar 22 21:49
*psydruid (~psydruid@jevhxkzmtrbww.irc) has left #techbytesMar 22 22:06
*psydruid (~psydruid@jevhxkzmtrbww.irc) has joined #techbytesMar 22 22:09
*Disconnected (Network is unreachable).Mar 22 22:30
*Now talking on #techbytesMar 22 22:30

Generated by irclog2html.py 2.6 | ䷉ find the plain text version at this address (HTTP) or in Gemini (how to use Gemini) with a full GemText version.