tag:blogger.com,1999:blog-8990057754240336385.post3659384435236967244..comments2024-02-27T09:18:36.160+01:00Comments on DeltaPatents Case Law blog: G 3/14: is the clarity issue newly introduced or not?DeltaPatentshttp://www.blogger.com/profile/07830354704918972593noreply@blogger.comBlogger9125tag:blogger.com,1999:blog-8990057754240336385.post-72108960115525685102015-04-01T11:34:32.053+02:002015-04-01T11:34:32.053+02:00I'm totally with the eBoA when they say: Oppos...I'm totally with the eBoA when they say: Opposition is not continued Examination. <br /><br />Any patent system (not just EPO) is rife with legal uncertainty due to unclear claims. <br /><br />Deal with it.<br /><br />Bogging down opposition procedures (which only happen in a small percentage of granted cases) with clarity discussions does not address this legal certainty problem properly, but it would put patent holders at a huge disadvantage because they would have to fight clarity battles again, but now hampered by A.123(3) as well. F*ck that!<br /><br />Frankly, I'm amazed that this G3/14 gets so little love from the patent attorney community. In my opinion, which happens to be right, the BoA took exactly the right decision for, even more amazing, the right reasons.<br /><br />-- Newly converted EBoA fanboy<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-18576294606247007322015-03-31T14:46:03.661+02:002015-03-31T14:46:03.661+02:00There is always room for interpretation of any giv...There is always room for interpretation of any given claim. That's pretty obvious and I have experienced that myself in various infringements cases as a matter of fact ;)<br /><br />Legal certainty is however an essential element of the system and one cannot assume that all claims of all patents granted by the EPO will go through the rigorous (or not so rigorous) process of claim construction by a Judge. Do we now want all patents granted by the EPO to go through this complex and costly process ? Evidently not.<br /><br />Third parties do need to have some ability to understand the scope of a claim, without this necessitating the valuable input of a Judge. In that context, clarity is essential, or at least quite helpful.<br /><br />It IS naive to believe that legal certainty is not at stake.<br /><br />How can interpretation of a claim be determined if the claim per se is unclear ?<br /><br />How can this be in any way satisfactory from the point of view of legal certainty ?<br /><br />How can this be in any way better than having the Opposition Division or Board of Appeal re-assess clarity during opposition proceedings and invite the Patentee to clarify the scope of the claim ?<br /><br />How can this be optimal ? It is NOT and the EBA explicitly accepts it.<br /> Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-9653365195424843162015-03-31T09:37:09.948+02:002015-03-31T09:37:09.948+02:00Why would legal certainty be at stake? The judge w...Why would legal certainty be at stake? The judge will for any claim, clear or not, make its own judgment as to scope of protection and infringement - (s)he will do his/her own claim interpretation in which all features of the claim, in the light of the description, claims and drawings and taking into account equivalents (Art. 96 EPC and Protocol). If you ever considered even valid claims to define the scope of protection in a unique manner, you are much to naive....<br /><br />MrWiseBoardAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-89164781169913421312015-03-30T17:42:12.796+02:002015-03-30T17:42:12.796+02:00This statement on page 87 of the decision says it ...This statement on page 87 of the decision says it all:<br />"The Enlarged Board accepts that it is not optimal that there may be granted claims, even after amendment, which do not comply with Article 84 EPC but it cannot be ignored that the legislator has deliberately chosen not to make Article 84 EPC a ground for opposition, or for revocation or nullity in national proceedings."<br /><br />What about legal certainty then ?<br /><br />Did I miss something ? Was the Referral to the EBA in any way directed to making Article 84 EPC a ground of opposition ? It was my understanding that we were rather talking about Article 101(3) EPC, not Article 100 EPC...Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-91543767006324620102015-03-28T10:34:48.555+01:002015-03-28T10:34:48.555+01:00I did Roel :)
I did also read the various amicus c...I did Roel :)<br />I did also read the various amicus curiae that have been submitted to the EBA and I do believe that a number of EPO representatives (like me) did have the hope that the EBA might follow the divergent view expressed e.g. in T 0459/09.<br />Clarity is no ground of opposition. That's a fact and should remain like this. Not being in a position to re-assess clarity when it comes to examining amended claims submitted in the context of opposition proceedings - irrespective of the nature of the modification - is not optimal (as admitted by the EBA BTW…).<br />I do reiterate my (humble) opinion that this decision is disappointing.Ronald Nollhttp://www.kba-notasys.comnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-22447613977629247052015-03-27T17:14:35.707+01:002015-03-27T17:14:35.707+01:00I am very enthusiastic about this decision. I have...I am very enthusiastic about this decision. I haven't read it in detail yet, but I definitely get a sense that the EBoA wants less procedural nit-picking in opposition. Coming from EPO that is quite refreshing. <br /><br />Personally, I would like to see opposition procedures more as a clash between experts in the field about novelty and inventive step (and perhaps sufficiency) of the claims. The near endless debates about extension of subject matter are bad enough already. Since unclear claims are interpreted (as they should) according the broadest reasonable interpretation and are thus more vulnerable to novelty and inventive step attacks, there's still plenty of incentive for applicants to draft clear claims. <br /><br />On the one hand this no-nonsense approach gives me hope for the coming poisonous divisonal/priority decision (I'm in the "partial priority should fix everything" camp). On the other hand, the EBoA's approach to follow the letter of the law also worries me. There's little room then to say that Art 54(3) does not apply to your own priority/divisional applications.<br /><br />Also: this was lightning speed for the EBoA? Back in November we were still drafting Amicus letters (which I'm glad the EBoA did not follow, BTW).Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-56186929513799385002015-03-27T14:07:21.952+01:002015-03-27T14:07:21.952+01:00Hi Ronald,
Did you read the decision before posti...Hi Ronald,<br /><br />Did you read the decision before posting your comment? <br />The EBA addresses in a lot of detail and very extensive argued why clarity cannot be reassessed and should not be reassable in opposition, by a very thorough discussion of the legal history and the deliberate choices that the legislator made - also when amending the EPC to EPC2000.<br /><br />So, in my view, you donot do justice at all to this very thorough and useful analysis of the Enlarged BoardRoel van Woudenberghttps://www.blogger.com/profile/15823355175016282250noreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-49309151756971662682015-03-27T13:50:01.279+01:002015-03-27T13:50:01.279+01:00I consider the opinion to be well written, careful...I consider the opinion to be well written, carefully argued and respecting the intent of the legislator. <br /><br />The legislator has removed clarity from the opposition grounds to streamline the proceedings. Indeed, clarity is a less optimal criterion for inter partes proceedings as it will invariably lead to a yes-no quarrel between opponent and proprietor. Worse it will force the opposition division to take a stance on clarity before getting to novelty/inventive step.<br /><br />As the enlarged board notes there are a number of other grounds in which clarity consideration may play a role.Sander van Rijnswouhttps://www.blogger.com/profile/08074604101159694993noreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-33800412039655044542015-03-27T13:13:27.717+01:002015-03-27T13:13:27.717+01:00This latest decision from the EBA is probably one ...This latest decision from the EBA is probably one of the most disappointing in EPO history. It is highly unfortunate that clarity cannot be reassessed in respect of a modification consisting in the mere combination of claims as granted. Clarity of dependent claims is often overlooked during examination and it is not uncommon to find claims in granted patents that objectively suffer from clarity issues. Not being in a position to re-examine the clarity of a modification on the mere ground that non-compliance with Article 84 EPC was already present in the claims as granted is less than optimal to say the least. Really disappointing.Ronald Nollhttp://www.kba-notasys.comnoreply@blogger.com