tag:blogger.com,1999:blog-8990057754240336385.post9186875455739175216..comments2024-02-27T09:18:36.160+01:00Comments on DeltaPatents Case Law blog: T 0611/15 - No pain, no gainDeltaPatentshttp://www.blogger.com/profile/07830354704918972593noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-8990057754240336385.post-49234350543682826372018-03-09T09:42:27.063+01:002018-03-09T09:42:27.063+01:00In all oral hearings and proceedings when it becom...In all oral hearings and proceedings when it becomes apparent that the main request will not be granted, I make it clear that I maintain my main request "but that we do not really have to discuss it further at the moment but can move on to the auxilliary request". Mentioning that I do not have instructions from the applicant to withdraw any request also helps in not-alienating the examiner(s). Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-7939687151752191122018-03-08T16:24:14.966+01:002018-03-08T16:24:14.966+01:00"Both the minutes and the decision are clear ..."Both the minutes and the decision are clear and not contradictory!". Who wrote the minutes? The representative is arguing that their content is not accurate. Has the representative the benefit of the doubt?<br /><br />At the OP, if the OPP-DIV does not allow your main request you say..."Ok, let's <br />move forward, try to get something for the client (something is better than nothing) and let the Board of Appeal to decide to the main one".<br /><br />In this case, I see a problem of language, and an unappriopriate use of the word "withdrew" (if any use has been actually made...). <br /><br />Besides, never the OPP-DIV asked me if the last request is the only request on file. I think is a silly question, at most the OPP-DIV asked whether there were additional request to be discussed<br />Unknownhttps://www.blogger.com/profile/12044096481149057032noreply@blogger.comtag:blogger.com,1999:blog-8990057754240336385.post-13000637773896559572018-03-08T11:59:17.305+01:002018-03-08T11:59:17.305+01:00Anything you say can be used against you! Well kno...Anything you say can be used against you! Well known stance.....<br /><br />The present situation is similar to that in T 1063/02.<br /><br />That a division asks whether the last request is the only request on file is classic, as well as the reply: no. But a division will always attempt this, be it to have less work. <br /><br />In the present case it is the representative who, on his own initiative, withdrew all other requests. He is therefore not aggrieved as he got what he requested. Both the minutes and the decision are clear and not contradictory!<br /><br />Even if there is a procedural difference between giving an opinion and announcing a decision, in the latter case the division cannot not reverse, whereas in case of an opinion it can do, if good reasons exist. <br /><br />Otherwise, i.e., if it was not clear on which requests a decision would be taken, the division must clarify the situation before deciding. If it fails to do so it will commit a substantial procedural violation, see T 382/10 and T 405/12.<br /><br />On the other hand, if the situation is not clear for one of the parties, there is also the duty to ask for clarification, see T 71/06.<br /> <br />It is very likely that the proprietor's representative faced some trouble upon his return, hence the attempt to save the case in appeal. <br /><br />robinnoreply@blogger.com