tag:blogger.com,1999:blog-8990057754240336385.post111019206337135626..comments2024-02-27T09:18:36.160+01:00Comments on DeltaPatents Case Law blog: T 360/11 - Very late needs to be very clearDeltaPatentshttp://www.blogger.com/profile/07830354704918972593noreply@blogger.comBlogger12125tag:blogger.com,1999:blog-8990057754240336385.post-6704631994908568602016-08-11T23:22:04.609+02:002016-08-11T23:22:04.609+02:00Then I cannot but add that an opinion is hard to p...Then I cannot but add that an opinion is hard to pass by when publicly posted on the internet.<br /><br />My question: who then complained about that?<br /><br />And it is not too easy to take an arbitrary decision after it has been given, put it in line with previous similar decisions, and say: "people should have known better"? I know, you do not say that literally, but to the casual observer, that is a big, underlying hint that is hard to ignore. Even though you may not mean it in that way.<br /><br />I sympathize with you, that persons before the Board should not complain about not getting their way if they themselves knowingly do not follow the rules. But a recurring thing is: the fact that in the case above (or in any other case for that matter) a person did not get his way, may very well not have been due to him blatantly ignoring rules. As already said many times, people may have been well aware of what they were doing. Or they may just have been trying their best, given the circumstances, willing to take the outcome just as it is.<br /><br />Any Board decision will in some way or another be a lesson to someone, and most probably to the person not getting their way. But, as long as we do not know whether the person was a "blatantly ignorant" person, or a person acting in good faith, saying (in retrospect (!), and not knowing any rationale, strategy, or historical developments that have lead to a case get to a certain point, for whatever reason) "it is his own fault", for me, is a cry too far.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-26721074771803491192016-08-11T22:46:08.230+02:002016-08-11T22:46:08.230+02:00Yes, and many of the comments appear to have a mor...Yes, and many of the comments appear to have a moral stance, as if the applicant is sinning, which I find laughable. Procedure is procedure (which people cloak themselves with in taking normative positions), but applicants are the ones funding the whole operation. <br /><br />My main point is commercial value is what mainly drives applicant choices, not procedural niceties. Once I understood this, everything made more sense.Sam Bergstromhttps://www.blogger.com/profile/04455443535067698767noreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-12179713602020792472016-08-11T21:32:59.491+02:002016-08-11T21:32:59.491+02:00I fail to understand the need of the last comment....I fail to understand the need of the last comment. It merely states the obvious. <br /><br />Everybody is free to utter an opinion, and those who do not like it should simply pass their way.<br /><br />It is too easy to complain that the Boards are to formal and revoke patents for such reasons, but at the other hand ignore the rules of procedure of the boards. <br /><br /><br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-72245289588467254632016-08-11T17:55:10.404+02:002016-08-11T17:55:10.404+02:00We do not know the expectation that a person had w...We do not know the expectation that a person had with a certain action. We do not know how the person feels about a certain outcome. Without an indication of either, there is no place for surprise, saddening, or amazement.<br /><br />Any of those requires an assumption to be made about the person having been 100 % sure that his action was going to succeed, and having been thoroughly disappointed that he got a negative result.<br /><br />Yes, maybe the person was like that. And maybe not.<br /><br />If the person was like that, yes, you have a point, and yes, he should have been more dilligent and less ignorant, and he should not complain.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-35807316672378005082016-08-11T16:29:40.784+02:002016-08-11T16:29:40.784+02:00I am the author of the first comment. I stay by it...I am the author of the first comment. I stay by it. And if you do not like it, then skip over it.<br /><br />That a representative has to abide by its client’s instructions is nothing to look down upon. He is doing his job and nobody has the right to interfere or consider it wrong. This is not the message I conveyed. A case might look desperate, but you never know the reply if you do not ask the question. It is thus perfectly legitimate to try to save something.<br /><br />However, case law has gone in a certain direction as far as admissibility of late filed submissions, and especially requests, are concerned. Some decisions may simply exemplify the trend, no more no less. This has nothing to do with “told you so”. If one does not want to see reality, then he gets a bloody nose.<br /><br />It is however surprising, and at the same time saddening, to see patents simply being revoked, or applications being refused, because the proprietor/applicant having not been pro-active and filed its requests in due time.<br /><br />If a patent is allegedly so important commercially, why then wait up to the last possible moment to file requests in order to save it? I fail to understand any rationale behind such an attitude. <br /><br />If the patent is important, then be pro-active. Anything else is tactics and it is right for the Boards not to play this game. And this has nothing to do with production pressure and desire to get read of the cases by the Boards as is sometimes propagated. <br /><br />It is amazing to see how many representatives seem to blatantly ignore the rules of procedure of the BA. They are now over 10 years old! But some representatives complain that too many patents are revoked for formal reasons…..Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-58416295917686550652016-08-11T09:32:28.640+02:002016-08-11T09:32:28.640+02:00Sam, you are right that cases that appear (from th...Sam, you are right that cases that appear (from the outside) messy may be rational for those involved<br /><br />But moving targets and corporate politics have no place in a proper procedure. <br /><br />Those who want to adapt their patent application on the go to match a moving target are very close to abusing (at least in my view) the patent system and deserve no sympathy. <br /><br />And an applicant that allows corporate politics to influence its patent cases is just plain stupid. No sympathy either.<br /><br />Sympathy for the patent attorney who finds him/herself in an impossible position, of course.Kuifjenoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-26920085290653564542016-08-10T16:57:43.745+02:002016-08-10T16:57:43.745+02:00Then it is my (Anonymous 10 August 2016 at 13:49) ...Then it is my (Anonymous 10 August 2016 at 13:49) turn to apologize to you, Sander, because I was referring to the very first comment, not to yours. (I fully agree with a "pragmatic" approach: nothing ventured, nothing gained.)<br /><br />I meant to say that citing a number of previous cases, like the original poster did, has argumentative value only when building a case before a Board. After a decision has been taken, any such value is lost, or can only be used to substantiate a "told you so".Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-89421857636712245942016-08-10T15:09:11.845+02:002016-08-10T15:09:11.845+02:00I don't think the outcome of Board decisions a...I don't think the outcome of Board decisions are a gamble unrelated to any doctrine, and I apologize if I gave that impression. On the whole, I view the quality of the boards very highly. These are smart people that decide with integrity. <br /><br />Nevertheless, attorneys and board members have different tasks. <br />I think of isolated decisions as representing the things that can happen—since in fact it did happen at least once. Some results happen so often that it is virtually certain that they will happen. Citing previous decisions is useful to me since it tells me where I am on the scale between possible and virtually certain. <br /><br />An attorney cannot foresee what will happen. A request may be on the cusp between clear and not-clear, prima facie relevant and not so relevant. It is not the task of the attorney to make the call, but to present the request in the best possible light. It is the task of the board to decide fairly on the request.<br /><br />In short, I don’t see a contradiction between pragmatically trying the best you can in a difficult situation and having a genuine interest in EPO patent law and how it is developed in the case law. <br /><br />Personally, I do not tire of ‘didactic comments’ in the least, and in fact welcome them—so long I’m still allowed to foolhardy try every last possibility to save a lost cause.<br /><br /><br /><br />Sander van Rijnswouhttps://www.blogger.com/profile/08074604101159694993noreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-83638129890456836902016-08-10T13:49:38.858+02:002016-08-10T13:49:38.858+02:00What exactly is the point of citing previous decis...What exactly is the point of citing previous decisions in arguing that the outcome of a certain case was correct? Cases are decided upon based on the circumstances at hand. And yes, they vary per case.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-56838394189678458332016-08-10T10:32:54.572+02:002016-08-10T10:32:54.572+02:00We do what we have to do. The applicant may well h...We do what we have to do. The applicant may well have known that his request had a low chance of succeeding, but nothing ventured, nothing gained. <br /><br />I have only anecdotal evidence, but I’m sure that late filed requests sometimes do succeed. Perhaps those cases, in which a quest is admitted and found patentable, just don’t make the cut for this blog that often…<br /><br />On the other hand, reading decisions like the one above help me to keep abreast of the trends and anticipate on them. I may still file a late request, but at least I know what may happen to it. <br /><br /><br /><br />Sander van Rijnswouhttps://www.blogger.com/profile/08074604101159694993noreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-70872440639684568142016-08-09T22:59:04.596+02:002016-08-09T22:59:04.596+02:00These (repetitive) didactic comments also don'...These (repetitive) didactic comments also don't come as a surprise. <br /><br />Applicant side is sometimes messy, even if they are at "fault". We only know a tiny part of the picture from the above decision. There's a lot more moving parts: standardization (a moving target), corporate politics, etc... <br /><br />Things that look procedurally questionable may ACTUALLY be rational (or at least understandable) in a commercial context, which is where patents derive most of its value (if any). <br /><br />Disclaimer: I use to work for the involved firm, but the above opinion has only strengthened/been confirmed in my subsequent in-house years.Sam Bergstromhttps://www.blogger.com/profile/04455443535067698767noreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-79652302171923723732016-08-09T11:25:28.790+02:002016-08-09T11:25:28.790+02:00The decision does not come as a surprise. It shoul...The decision does not come as a surprise. It should by now be abundantly known by now that the appeal procedure is not continuation of the first instance procedure, be it examination or opposition, and the later a request is filed, the lower are the chance of it being admitted. The Boards apply their rules of procedure stricter and stricter. Those are now at least 10 years old. <br />That a filed request should at least be such that it overcomes objections raised up to date is nothing new, see for instance T 2422/09, T 642/04, T 340/06 or T 1678/11.<br />The Board has even been quite generous in that it accepted to discuss claim 3 of the request in the absence of a corresponding claim 1.<br />Applicants and proprietors should not be surprised to see applications refused or patents revoked, simply because they have not been diligent enough.Anonymousnoreply@blogger.com