●● IRC: #techbytes @ Techrights IRC Network: Friday, July 23, 2021 ●● ● Jul 23 [00:58] *DaemonFC (~DaemonFC@zivjd8d3h3tja.irc) has joined #techbytes ● Jul 23 [01:05] *psydruid (~psydruid@jevhxkzmtrbww.irc) has left #techbytes ● Jul 23 [02:33] *Disconnected (Network is unreachable). [02:35] *Now talking on #techbytes [02:35] *Topic for #techbytes is: Welcome to the official channel of the TechBytes Audiocast [02:35] *Topic for #techbytes set by schestowitz!~roy@haii6za73zabc.irc at Tue Jun 1 20:21:34 2021 [02:35] *asusbox (~rianne@y7ngpevrg6hvk.irc) has joined #techbytes [02:35] *libertybox (~schestowitz_log@y7ngpevrg6hvk.irc) has joined #techbytes [02:35] *schestowitz (~roy@y7ngpevrg6hvk.irc) has joined #techbytes [02:35] *irc.techrights.org sets mode +q #techbytes schestowitz [02:35] *Techrights-sec (~quassel@y7ngpevrg6hvk.irc) has joined #techbytes [02:59] *psydruid (~psydruid@jevhxkzmtrbww.irc) has joined #techbytes ● Jul 23 [03:35] schestowitz http://patentblog.kluweriplaw.com/2021/07/16/case-g1-21-eba-gives-no-clarity-about-videoconferencing/ [03:35] -TechBytesBot/#techbytes-patentblog.kluweriplaw.com | Case G1/21: EBA gives no clarity about videoconferencing - Kluwer Patent Blog [03:35] schestowitz " [03:35] schestowitz DXThomas [03:36] schestowitz JULY 16, 2021 AT 11:51 PM [03:36] schestowitz I would not be as negative for the time being and would wait for the reasons. [03:36] schestowitz As I am an optimist, for the time being, I rather feel the glass is half-full rather than half-empty. [03:36] schestowitz It is clear that EPOs management will be making any move in order to keep mandatory OP by ViCo as otherwise the New Normal cannot be implemented. [03:36] schestowitz What 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. [03:36] schestowitz Dynamic 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. [03:36] schestowitz One More for the Road [03:36] schestowitz JULY 17, 2021 AT 11:51 AM [03:36] schestowitz Unfortunately the EBAs 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 managements obvious expectations and that it simply did not dare to confront the latter. [03:36] schestowitz One more blow at the Boards independence? [03:36] schestowitz DXThomas [03:36] schestowitz JULY 17, 2021 AT 5:29 PM [03:36] schestowitz There 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. [03:36] schestowitz Without 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! [03:36] schestowitz The problem is that it is difficult to find a proper basis in the EPC for this New Normal. [03:36] schestowitz This is a point of view which has been mentioned by two former VP1 in a publication of Le Blog.du Droit Europen des Brevets [03:36] schestowitz https://europeanpatentcaselaw.blogspot.com/2021/04/vers-une-nouvelle-normalite.html [03:36] -TechBytesBot/#techbytes-europeanpatentcaselaw.blogspot.com | Le Blog du Droit Europen des Brevets: "Vers une nouvelle normalit": contribution de MM. Jacques Michel et Willy Minnoye [03:36] schestowitz A satisfactory reply of the EBA in G 1/21 is thus of prime importance for the management of the EPO. [03:36] schestowitz Such 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. [03:36] schestowitz Last 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. [03:36] schestowitz During the OP of 02.07., the presidents 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. [03:36] schestowitz Anon Y. Mouse [03:36] schestowitz JULY 17, 2021 AT 7:38 PM [03:36] schestowitz Once 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 [03:36] schestowitz of 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. [03:36] schestowitz I 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. [03:36] schestowitz Attentive Obsever [03:36] schestowitz JULY 18, 2021 AT 7:01 AM [03:36] schestowitz @AnonY.Mouse, [03:36] schestowitz When 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. [03:36] schestowitz Neither the names nor the extent of the minority will be published. [03:36] schestowitz When 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. [03:36] schestowitz As the present chair of the panel is a subordinate it cannot be excluded that the chairmans arm might be twisted to accept the presence of more than the Registrar. [03:36] schestowitz In view of the history of the case anything could this happen. [03:36] schestowitz It is clear that with the original quatuor there was no surprise as to what the decision will be. [03:36] schestowitz The power of nuisance of the remaining duet is not be ignored, and the present order is probably the result of a compromise. [03:36] schestowitz We really have to wait for the reasons to know what is the real opinion of the EBA. [03:36] schestowitz francis hagel [03:36] schestowitz JULY 18, 2021 AT 6:46 PM [03:36] schestowitz It 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. [03:37] schestowitz It 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 : [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. [03:37] schestowitz In 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. [03:37] schestowitz However, 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. [03:37] schestowitz It is ironic that the EBAs 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 partys right to be heard . Apparently BOAs are not entitled to such right to be heard in their referrals [03:37] schestowitz Hopefully the reasons of the decision will bring insights and at least a modicum of predictability to EPO users. [03:37] schestowitz Regarding 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. Bauschs blog post of May 11, 2021. [03:37] schestowitz The Convention watchdog [03:37] schestowitz JULY 19, 2021 AT 10:28 AM [03:37] schestowitz In 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, [03:37] schestowitz justified 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. [03:37] schestowitz Nevertheless, 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. [03:37] schestowitz It 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. [03:37] schestowitz Patent robot [03:37] schestowitz JULY 19, 2021 AT 9:26 AM [03:37] schestowitz If 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? [03:37] schestowitz Pedro [03:37] schestowitz JULY 19, 2021 AT 7:01 PM [03:37] schestowitz No, that is certainly not true. Desperate times may require desperate measures. Think of it as an exception to a rule. [03:37] schestowitz Patent robot [03:37] schestowitz JULY 20, 2021 AT 9:50 AM [03:37] schestowitz The EPC contains some exceptions. So, which article of the EPC are you referring to? Which rule of the EPC are you also referring to ? [03:37] schestowitz Peter Parker [03:37] schestowitz JULY 19, 2021 AT 12:32 PM [03:37] schestowitz Not sure whether they washed their hands like Pilate or whether they displayed wisdom like Solomn with this ruling. Time will tell. [03:37] schestowitz Concerned observer [03:37] schestowitz JULY 19, 2021 AT 6:03 PM [03:37] schestowitz Based upon the letter from the opponent today, the wording of the EBAs order may be even less helpful than it appeared at first sight. [03:37] schestowitz In 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 [03:37] schestowitz certain that the EPO President will not agree with this interpretation, who (in the absence of the EBAs detailed reasoning) can say that it is wrong? [03:37] schestowitz There are many, many other problems with the wording of the EBAs 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 [03:37] schestowitz Appeal 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! [03:37] schestowitz Pedro [03:37] schestowitz JULY 19, 2021 AT 7:03 PM [03:37] schestowitz with a mind willing to understand [03:37] schestowitz Concerned observer [03:37] schestowitz JULY 20, 2021 AT 9:53 AM [03:37] schestowitz Even a mind willing to understand would struggle to apply the EBAs order to a wide range of different cases. [03:37] schestowitz For 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? [03:37] schestowitz I 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. [03:38] schestowitz If, 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 [03:38] schestowitz ability to travel impaired only by self-isolation / quarantine rules, or also by insurance / health risk issues? [03:38] schestowitz From this perspective, the EBAs order is about as clear as mud. [03:38] schestowitz A [03:38] schestowitz JULY 19, 2021 AT 6:16 PM [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. [03:38] schestowitz Attentive Obsever [03:38] schestowitz JULY 21, 2021 AT 6:38 AM [03:38] schestowitz The EBA has really taken us for a ride! [03:38] schestowitz It 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. [03:38] schestowitz When reading Art 116 I fail to see that it makes a difference between first instance and boards of appeal. [03:38] schestowitz The area of dynamic, i.e. politically wished interpretation, had made inroads at the EBA. [03:38] schestowitz It is tragic to see the how people meant to protect the EPC have become puppets on the strings of EPOs management! [03:38] schestowitz Is it the price the BA have to pay to be allowed to come back to Munich? [03:38] schestowitz The EPO stinks to high heaven be it in first instance or at the boards. Shame on you all! [03:38] schestowitz The founding fathers of the EPC must turn like a gyroscope in their tombs! [03:38] schestowitz The Convention Watchdog [03:38] schestowitz JULY 21, 2021 AT 9:22 AM [03:38] schestowitz This 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? [03:38] schestowitz Concerned observer [03:38] schestowitz JULY 21, 2021 AT 6:09 PM [03:38] schestowitz It 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. [03:38] schestowitz Firstly, 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. [03:38] schestowitz Secondly, 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 [03:38] schestowitz suspect 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). [03:38] schestowitz Another 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 [03:38] schestowitz under Article 24(1) EPC not least because it is settled case law that ANY party can raise an objection under that ground. [03:38] schestowitz Then, 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. [03:38] schestowitz Finally, 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 orders 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, [03:38] schestowitz for VICOs, anything is permissible so long as it has not been explicitly forbidden by the EBA. [03:38] schestowitz It 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 Presidents 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 [03:38] schestowitz favour the EPO Presidents agenda. [03:38] schestowitz Against 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. [03:38] schestowitz " ● Jul 23 [04:35] *Techrights-sec has quit (connection closed) [04:35] *Techrights-sec (~quassel@y7ngpevrg6hvk.irc) has joined #techbytes ● Jul 23 [05:10] *acer-box__ is now known as schestowitz-TR [05:42] *Techrights-sec has quit (Quit: http://quassel-irc.org - Chat comfortably. Anywhere.) [05:43] *Techrights-sec (~quassel@y7ngpevrg6hvk.irc) has joined #techbytes [05:50] *search_social (~search_social@akqta89mfqm5k.irc) has joined #techbytes [05:51] *search_social is now known as sear_soci [05:54] *liberty_box (~liberty@y7ngpevrg6hvk.irc) has joined #techbytes [05:54] *rianne_ (~rianne@y7ngpevrg6hvk.irc) has joined #techbytes ● Jul 23 [06:03] *sear_soci is now known as sears_hardware [06:06] *DaemonFC has quit (Quit: Leaving) ● Jul 23 [08:45] *GNUmoon2 has quit (Ping timeout: 2m30s) ● Jul 23 [09:11] schestowitz x https://thehill.com/policy/technology/564401-kaseya-obtains-key-to-decrypt-systems-weeks-after-ransomware-attack [09:11] -TechBytesBot/#techbytes-thehill.com | Kaseya obtains key to decrypt systems weeks after ransomware attack | TheHill [09:11] schestowitz # windows tco [09:12] schestowitz x https://www.hollywoodreporter.com/business/digital/twitter-earnings-q2-2021-1234986958/ [09:12] -TechBytesBot/#techbytes-www.hollywoodreporter.com | Twitter Beats Wall Street Expectations, Tops 206 Million Users The Hollywood Reporter [09:14] schestowitz x https://boingboing.net/2021/07/22/facebook-suspends-you-for-quoting-dune-promotes-you-for-spreading-covid-and-vaccine-lies.html [09:14] -TechBytesBot/#techbytes-boingboing.net | Facebook suspends you for quoting Dune, promotes you for spreading COVID and vaccine lies | Boing Boing [09:14] schestowitz # perlow [09:17] *GNUmoon2 (~GNUmoon@d3u7abs8yy2fu.irc) has joined #techbytes ● Jul 23 [11:34] *psydroid_ (~psydroid@cqggrmwgu7gji.irc) has joined #techbytes ● Jul 23 [13:19] *amarsh04 (~amarsh04@qu5xbximaxtww.irc) has joined #techbytes ● Jul 23 [14:23] *DaemonFC (~DaemonFC@jciztmtqbah4q.irc) has joined #techbytes ● Jul 23 [17:31] *amarsh04 has quit (Quit: Konversation terminated!) [17:54] *amarsh04_ (~amarsh04@qu5xbximaxtww.irc) has joined #techbytes [17:58] *amarsh04_ has quit (Quit: Konversation terminated!) [17:58] *amarsh04_ (~amarsh04@qu5xbximaxtww.irc) has joined #techbytes ● Jul 23 [18:01] *amarsh04_ has quit (Quit: Konversation terminated!) [18:02] *amarsh04__ (~amarsh04@qu5xbximaxtww.irc) has joined #techbytes [18:05] *amarsh04__ has quit (Quit: Konversation terminated!) [18:06] *amarsh04__ (~amarsh04@qu5xbximaxtww.irc) has joined #techbytes [18:07] *amarsh04__ has quit (Quit: Konversation terminated!) [18:08] *amarsh04__ (~amarsh04@qu5xbximaxtww.irc) has joined #techbytes [18:09] *amarsh04__ has quit (Quit: Konversation terminated!) [18:13] *tr-amarsh04 (~amarsh04@qu5xbximaxtww.irc) has joined #techbytes ● Jul 23 [20:07] *MinceR has quit (Ping timeout: 2m30s) [20:08] *MinceR (~mincer@bringer.of.light) has joined #techbytes [20:08] *irc.techrights.org sets mode +a #techbytes MinceR ● Jul 23 [21:59] *GNUmoon2 has quit (Ping timeout: 2m30s) [21:59] *GNUmoon2 (~GNUmoon@4ib67bpjevnsu.irc) has joined #techbytes ● Jul 23 [22:26] *psydroid_ has quit (connection closed)