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*Topic for #techbytes is: Welcome to the official channel of the TechBytes AudiocastJul 23 02:35
*Topic for #techbytes set by schestowitz!~roy@haii6za73zabc.irc at Tue Jun 1 20:21:34 2021Jul 23 02:35
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schestowitz 23 03:35
-TechBytesBot/ | Case G1/21: EBA gives no clarity about videoconferencing - Kluwer Patent BlogJul 23 03:35
schestowitz"Jul 23 03:35
schestowitzDXThomasJul 23 03:35
schestowitzJULY 16, 2021 AT 11:51 PMJul 23 03:36
schestowitzI would not be as negative for the time being and would wait for the reasons.Jul 23 03:36
schestowitzAs I am an optimist, for the time being, I rather feel the glass is half-full rather than half-empty.Jul 23 03:36
schestowitzIt is clear that EPO’s management will be making any move in order to keep mandatory OP by ViCo as otherwise the New Normal cannot be implemented.Jul 23 03:36
schestowitzWhat is however annoying is the recent tendency of the EBA to rewrite the questions so as to not answer the referred questions. This propensity should brought to an end so that it does not end up by sanctuarising “dynamic interpretations”.Jul 23 03:36
schestowitzDynamic interpretations can change with time and instead of giving legal certainty they increase legal uncertainty. The founders of the EPC wanted to help legal certainty, but this aim seems to have disappeared.Jul 23 03:36
schestowitzOne More for the RoadJul 23 03:36
schestowitzJULY 17, 2021 AT 11:51 AMJul 23 03:36
schestowitzUnfortunately the EBA´s decision on a restricted issue only might leave the suspicion that the Board actually had an opinion on the broader issue – as actually raised by the generic wording of new Article 15a RPBA – which would not have met the Office management´s obvious expectations and that it simply did not dare to confront the latter.Jul 23 03:36
schestowitzOne more blow at the Boards independence?Jul 23 03:36
schestowitzDXThomasJul 23 03:36
schestowitzJULY 17, 2021 AT 5:29 PMJul 23 03:36
schestowitzThere is however another aspect which also plays an important role. According to Art 15a(3) RPBA20, when holding an OP by ViCo, or even on the premises, the deciding BA does not have to sit together at the same location. The problem at stake is thus broader and concerns as well Art 15a(3) RPBA20.Jul 23 03:36
schestowitzWithout mandatory OP by ViCo and the possibility of a BA to decide without sitting together, a similar measure cannot be put in place in the first instance. Without this double possibility, there is no New Normal!Jul 23 03:36
schestowitzThe problem is that it is difficult to find a proper basis in the EPC for this New Normal.Jul 23 03:36
schestowitzThis is a point of view which has been mentioned by two former VP1 in a publication of “Le Blog.du Droit Européen des Brevets”Jul 23 03:36
schestowitz 23 03:36
-TechBytesBot/ | Le Blog du Droit Européen des Brevets: "Vers une nouvelle normalité": contribution de MM. Jacques Michel et Willy MinnoyeJul 23 03:36
schestowitzA “satisfactory” reply of the EBA in G 1/21 is thus of prime importance for the management of the EPO.Jul 23 03:36
schestowitzSuch a New Normal could however be established after amending the EPC according to Art 172, taking duly into account that Art 164(2) which provides that in case of conflict between Rules and EPC, the latter prevails. So the AC is, in principle, not free to amend the Rules at will.Jul 23 03:36
schestowitzLast but not least, there is no trace of OP by ViCo, and even less in mandatory form, in the EPC and its Rules of Implementation. This makes things even more complicated.Jul 23 03:36
schestowitzDuring the OP of 02.07., the president’s representatives claimed that it was possible to amend the EPC by secondary legislation as exemplified in G 3/19. This argument is neither convincing nor compelling, as there exists a proper mechanism to amend the EPC.Jul 23 03:36
schestowitzAnon Y. MouseJul 23 03:36
schestowitzJULY 17, 2021 AT 7:38 PMJul 23 03:36
schestowitzOnce upon a time I was told, by a person very much in the know with decades of experience within the European institutions, that part of the reason that CJEU judgments are often so brief and/or so impenetrable is that, in the absence of a tradition of allowing different judges to give dissenting opinions (or even opinions which agree with the conclusion but disagree as to the reasoning), any points which are not the consistent view of the majority Jul 23 03:36
schestowitzof judges are excluded. Thus, the overall judgment reflects only the essentials of the points on which a majority of the panel could agree. This tends to make the decisions very fact-specific, and makes the rationale behind the decisions quite impenetrable, never mind establishing a clear test or broad principle that could be applied to future cases.Jul 23 03:36
schestowitzI wonder whether something similar is at work in recent EBA decisions at the EPO, and in particular in this one. That the order is so notably limited to approving something which hardly anyone had questioned, when the discussion at the hearing and the questioning from the EBA members was so wide-ranging, makes me wonder whether the members of the EBA simply could not agree among themselves on how to address the broader points that were at stake.Jul 23 03:36
schestowitzAttentive ObseverJul 23 03:36
schestowitzJULY 18, 2021 AT 7:01 AMJul 23 03:36
schestowitz@AnonY.Mouse,Jul 23 03:36
schestowitzWhen looking at Art 18(2) RPEBA the possibility of a dissenting opinion of a minority of members of a panel is foreseen. However the dissenting opinion will only be published if the majority agrees.Jul 23 03:36
schestowitzNeither the names nor the extent of the minority will be published.Jul 23 03:36
schestowitzWhen looking at Art 16(1) RPEBA only members of the panel may be participate in the deliberations, but other officers(?) can be present if authorized by the chair of the panel. I understand that the registrar might be present, but the wording does not exclude the presence of other members of the BA.Jul 23 03:36
schestowitzAs the present chair of the panel is a subordinate it cannot be excluded that the chairman’s arm might be twisted to accept the presence of more than the Registrar.Jul 23 03:36
schestowitzIn view of the history of the case anything could this happen.Jul 23 03:36
schestowitzIt is clear that with the original quatuor there was no surprise as to what the decision will be.Jul 23 03:36
schestowitzThe power of nuisance of the remaining duet is not be ignored, and the present order is probably the result of a compromise.Jul 23 03:36
schestowitzWe really have to wait for the reasons to know what is the real opinion of the EBA.Jul 23 03:36
schestowitzfrancis hagelJul 23 03:36
schestowitzJULY 18, 2021 AT 6:46 PMJul 23 03:36
schestowitzIt is very likely that as suggested by previous commenters, there was no consensus within the EBA for a position addressing the full scope of the referral and the restriction of the scope allowed common ground to be found.Jul 23 03:36
schestowitzIt should be no surprise for the issue of compulsory VICOs to be very divisive. Looking at the national courts competent on patent issues, there is a clear divergence in particular between UK and French judges, see this excerpt from « Patent cases decline across Europe but courts report increasing complexity » by K. Richter, JUVE Patent –July 12, 2021 :Jul 23 03:37
schestowitz“In the UK, Colin Birss – at the time still at the High Court – had already conducted the first patent hearing via Skype at the end of March. As the lockdown eased last summer, the court also introduced a hybrid system. In Germany, Munich Regional Court held video hearings at an early stage. The 7th Civil Chamber conducted its first case at the end of April 2020.Jul 23 03:37
schestowitzIn France, however, this type of hearing has not become established for patent cases. In an interview with JUVE Patent, first president and judge at the Tribunal judiciaire de Paris, Nathalie Sabotier, acknowledged that judging a case purely by written submissions is, for patent cases, inadequate.Jul 23 03:37
schestowitzHowever, in large proceedings where only a limited number of people are allowed in the courtroom, involved parties that are not actively part of the oral proceedings can join via video. For example, the two-day opening hearing in the dispute between Intellectual Ventures against Orange and Bouygues Telecom utilised this function.”Jul 23 03:37
schestowitzIt is ironic that the EBA’s response can be depicted – and criticised – as « infra petita » i.e. a a failure of the judge in civil proceedings to address an issue raised by a party. This is commonly expressed in EPO proceedings as a failure to satisfy a party’s « right to be heard ». Apparently BOAs are not entitled to such « right to be heard » in their referrals…Jul 23 03:37
schestowitzHopefully the reasons of the decision will bring insights and at least a modicum of predictability to EPO users.Jul 23 03:37
schestowitzRegarding the contribution by former DG1 VPs Jacques Michel and Willy Minnoye on the “New Normal” cited by DXThomas, readers are advised that an English translation is available in T. Bausch’s blog post of May 11, 2021.Jul 23 03:37
schestowitzThe Convention watchdogJul 23 03:37
schestowitzJULY 19, 2021 AT 10:28 AMJul 23 03:37
schestowitzIn referral proceedings before the Enlarged Board of Appeal, the referring Board cannot raise issues at will. Rather, a decision on the referred question has to be required for deciding the case underlying the referral. Even less does the principle of party disposition govern the obligation of the EBA to answer referred questions. In its order, the EBA answered the question as required by the case pending in T 1807/15 and, at the same time, Jul 23 03:37
schestowitzjustified what was done in referral proceedings, i.e. holding oral proceedings by VICO. Otherwise, at least one of the external members of the EBA would presumably have been prevented from taking part.Jul 23 03:37
schestowitzNevertheless, the fundamental question will continue to exist after the pandemic and it may be expected that the reasons to be given for the order in G 1/21 will assist the Boards and the users in this respect. According to EBA case law, the Boards are not only bound under Article 21 RPBA to the order of an EBA decision but also to its essential reasoning. There may be good reasons why the EBA did not issue its reasoned decision within a few days. Jul 23 03:37
schestowitzIt is to be hoped that the Board finds a well-balanced solution which does not leave it to the EPO to decide what is good for the parties, as the President of the EPO seems to wish.Jul 23 03:37
schestowitzPatent robotJul 23 03:37
schestowitzJULY 19, 2021 AT 9:26 AMJul 23 03:37
schestowitzIf compulsory VICOs are compatible with the EPC during the pandemic, then they must also be compatible with the EPC after the pandemic, since the EPC does not distinguish the two situations, does it?Jul 23 03:37
schestowitzPedroJul 23 03:37
schestowitzJULY 19, 2021 AT 7:01 PMJul 23 03:37
schestowitzNo, that is certainly not true. Desperate times may require desperate measures. Think of it as an exception to a rule.Jul 23 03:37
schestowitzPatent robotJul 23 03:37
schestowitzJULY 20, 2021 AT 9:50 AMJul 23 03:37
schestowitzThe EPC contains some exceptions. So, which article of the EPC are you referring to? Which “rule” of the EPC are you also referring to ?Jul 23 03:37
schestowitzPeter ParkerJul 23 03:37
schestowitzJULY 19, 2021 AT 12:32 PMJul 23 03:37
schestowitzNot sure whether they washed their hands like Pilate or whether they displayed wisdom like Solomn with this ruling. Time will tell.Jul 23 03:37
schestowitzConcerned observerJul 23 03:37
schestowitzJULY 19, 2021 AT 6:03 PMJul 23 03:37
schestowitzBased upon the letter from the opponent today, the wording of the EBA’s order may be even less helpful than it appeared at first sight.Jul 23 03:37
schestowitzIn essence the opponent interprets the phrase “a period of general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises” as meaning that it is only lawful to conduct “without consent” VICO oral proceedings before the Boards of Appeal when (1) there is a period of “general emergency” AND (2) the ability of the parties to attend in-person proceedings is actually impaired. Whilst it is Jul 23 03:37
schestowitzcertain that the EPO President will not agree with this interpretation, who (in the absence of the EBA’s detailed reasoning) can say that it is wrong?Jul 23 03:37
schestowitzThere are many, many other problems with the wording of the EBA’s order. My personal favourite is that it appears to explicitly permit “without consent” VICO oral proceedings only when THE ORAL PROCEEDINGS are conducted during “a period of general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises”. Thus, when issuing a Summons to oral proceedings, it appears that the EPO Boards of Jul 23 03:37
schestowitzAppeal will need to know in advance whether the date set for the proceedings will still fall within a “period of general emergency …”. Crystal balls to the ready, it seems!Jul 23 03:37
schestowitzPedroJul 23 03:37
schestowitzJULY 19, 2021 AT 7:03 PMJul 23 03:37
schestowitz… with a mind willing to understand …Jul 23 03:37
schestowitzConcerned observerJul 23 03:37
schestowitzJULY 20, 2021 AT 9:53 AMJul 23 03:37
schestowitzEven a mind willing to understand would struggle to apply the EBA’s order to a wide range of different cases.Jul 23 03:37
schestowitzFor example, how should the beginning and end dates of a “period of general emergency” be determined? And even during such a period, why should what appears to be an exception to a normal rule (of in-person proceedings) be applied to parties who are, to all intents and purposes, completely unaffected by that emergency?Jul 23 03:37
schestowitzI would imagine that many Munich-based attorneys would be perfectly willing and able to attend in-person hearings in connection with appeals against decisions of Examining Divisions. If the only party confirms that their ability to attend the proceedings is not impaired, I really do not see how a Board of Appeal can impose the use of VICO.Jul 23 03:37
schestowitzIf, on the other hand, you believe that impairment of the ability to travel should not be assessed on a party-by-party basis, then other problems of interpretation arise. For example, which countries are relevant to consider in connection with travel restrictions? Is it only Germany, or is it instead any EPC Contracting State? Or perhaps it is any country from which a party to any proceedings might, in theory, wish to travel from? Also, is the Jul 23 03:38
schestowitzability to travel “impaired” only by self-isolation / quarantine rules, or also by insurance / health risk issues?Jul 23 03:38
schestowitzFrom this perspective, the EBA’s order is about as clear as mud.Jul 23 03:38
schestowitzAJul 23 03:38
schestowitzJULY 19, 2021 AT 6:16 PMJul 23 03:38
schestowitz…and since the EPC does not stipulate that dogs cannot partipate in oral proceedings, I can take my dog with me to my next hearing. Your logic is unbeatable.Jul 23 03:38
schestowitzAttentive ObseverJul 23 03:38
schestowitzJULY 21, 2021 AT 6:38 AMJul 23 03:38
schestowitzThe EBA has really taken us for a ride!Jul 23 03:38
schestowitzIt will be interesting to see what reasons this bunch of pseudo lawyers will bring to explain that the order only applies to OP before the Boards.Jul 23 03:38
schestowitzWhen reading Art 116 I fail to see that it makes a difference between first instance and boards of appeal.Jul 23 03:38
schestowitzThe area of dynamic, i.e. politically wished interpretation, had made inroads at the EBA.Jul 23 03:38
schestowitzIt is tragic to see the how people meant to protect the EPC have become puppets on the strings of EPO’s management!Jul 23 03:38
schestowitzIs it the price the BA have to pay to be allowed to come back to Munich?Jul 23 03:38
schestowitzThe EPO stinks to high heaven be it in first instance or at the boards. Shame on you all!Jul 23 03:38
schestowitzThe founding fathers of the EPC must turn like a gyroscope in their tombs!Jul 23 03:38
schestowitzThe Convention WatchdogJul 23 03:38
schestowitzJULY 21, 2021 AT 9:22 AMJul 23 03:38
schestowitzThis comment sinks to the level so far known only from Techrights. Is it asked too much to wait for the reasons of G 1/21 before insulting the members of the EBA and the Boards in general in this way?Jul 23 03:38
schestowitzConcerned observerJul 23 03:38
schestowitzJULY 21, 2021 AT 6:09 PMJul 23 03:38
schestowitzIt is, of course, important to await the full reasoning for the order in G 1/21 before reaching a conclusion upon whether the EBA has done a good job in interpreting the relevant provisions of the EPC. However, whilst I would not go so far as to insult its members, I think that, even without knowing the reasoning for the decision, there are a number of important points upon which it is perfectly reasonable to criticise the performance of the EBA.Jul 23 03:38
schestowitzFirstly, the participation of the President of the Boards of Appeal at the beginning of the proceedings in G 1/21 was an outrage, not only because of his clear personal (ie career) interest in reaching a positive conclusion on the lawfulness of a provision whose creation and passing he masterminded, but also because it totally disrespected the separation of powers principle.Jul 23 03:38
schestowitzSecondly, the EBA handled the Article 24 EPC objections very poorly. The first interlocutory proceedings should have been held in the presence of the parties and the information upon which the EBA based its decisions should have been shared with the parties in advance of the hearing on the matter. It is frankly unacceptable for a decision following an ex parte hearing to contain new (yet incomplete) information that points to possible new reasons to Jul 23 03:38
schestowitzsuspect partiality. It is even worse for the EBA to conclude that there is “nothing to see here” upon the basis of information that was not made available to the parties (or the public).Jul 23 03:38
schestowitzAnother failing in connection with Article 24 EPC is that the EBA only considered the objections of the opponent, despite being aware of numerous (differently reasoned) objections from amicus briefs. Those other objections should have been addressed. Even if one considers that the objections under Article 24(3) EPC were rendered moot by the exclusions of Josefsson and Beckedorf, the EBA should definitely have addressed the arguments that were raised Jul 23 03:38
schestowitzunder Article 24(1) EPC … not least because it is settled case law that ANY party can raise an objection under that ground.Jul 23 03:38
schestowitzThen, of course, there was the procedural slip-up that led to the need for a second hearing on the merits. Being given lessons on procedure by a party to the proceedings is not a good look for the EBA.Jul 23 03:38
schestowitzFinally, there is the wording of the order, which, as I have previously explained, is as clear as mud. For many parties seeking clarity upon whether their particular oral proceedings can take place in person, that order is about as much use as a chocolate teapot. On the other hand, the order’s lack of clarity (as well as its extremely narrow scope) will be a huge gift for the EPO President … as I have no doubt that he will take the approach that,Jul 23 03:38
schestowitz for VICOs, anything is permissible so long as it has not been explicitly forbidden by the EBA.Jul 23 03:38
schestowitzIt is notable that all of the above-described failings of the EBA could easily be interpreted as being motivated by an inclination not to disrupt the EPO President’s “New Normal” agenda (or to displease either him or the President of the Boards). This could of course be ascribed to coincidence. Alternatively, one could question what the chances are of a truly independent EBA making so many (perceived) errors of judgement that all happen to Jul 23 03:38
schestowitzfavour the EPO President’s agenda.Jul 23 03:38
schestowitzAgainst this background, it will (at least for me) take a truly impressive reasoned order from the EBA in order to dispel the bad smell that has clung to G 1/21 from day one.Jul 23 03:38
schestowitz"Jul 23 03:38
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schestowitzx 23 09:11
-TechBytesBot/ | Kaseya obtains key to decrypt systems weeks after ransomware attack | TheHillJul 23 09:11
schestowitz# windows tcoJul 23 09:11
schestowitzx 23 09:12
-TechBytesBot/ | Twitter Beats Wall Street Expectations, Tops 206 Million Users – The Hollywood ReporterJul 23 09:12
schestowitzx 23 09:14
-TechBytesBot/ | Facebook suspends you for quoting Dune, promotes you for spreading COVID and vaccine lies | Boing BoingJul 23 09:14
schestowitz# perlowJul 23 09:14
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