tag:blogger.com,1999:blog-2352189175211648260.post6837374103831481111..comments2023-10-24T14:45:41.342+02:00Comments on K’s Law: T 195/09 – Dangers Of Mono & Polyorhttp://www.blogger.com/profile/07992102028406713066noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-2352189175211648260.post-87780368994513866422011-01-25T00:21:54.567+01:002011-01-25T00:21:54.567+01:00Thanks for your thoughtful comments. I have to adm...Thanks for your thoughtful comments. I have to admit that I did not expect them because my final remark was just meant as a joke.<br /><br />Nevertheless, I enjoy having some substantial comments among the flood of spam that I receive every day as 'comments'. Moderating all that crap has become a half-time job.oliverhttp://k-slaw.blogspot.comnoreply@blogger.comtag:blogger.com,1999:blog-2352189175211648260.post-80009569292233477202011-01-25T00:20:28.834+01:002011-01-25T00:20:28.834+01:00Oliver,
To address your "excessive added su...Oliver, <br /><br />To address your "excessive added subject-matter" problem you could maybe configure the comments function to issue a CAPTCHA challenge. Most other blogs use this, including Laurent's.<br /><br />Thanks Myshkin for evoking G1/93 which I did not know of (fail!); section 14 nicely summarizes all parts of the EPC standing against such a solution. The AC document probably got some of its inspiration therefrom.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2352189175211648260.post-28283889397744150932011-01-24T21:46:47.502+01:002011-01-24T21:46:47.502+01:00G 1/93 discusses the "Kommentar-Lösung" ...G 1/93 discusses the "Kommentar-Lösung" option (calling it "footnote solution") in point 6, and rejects it in point 14.<br /><br />"This solution is characterised by a statement to be added to the description of the patent in suit to the effect that the undisclosed feature (which is maintained in the claim in order to avoid an extension of the protection conferred) represents an inadmissible extension from which no rights may be derived."Myshkinnoreply@blogger.comtag:blogger.com,1999:blog-2352189175211648260.post-41752073887430820192011-01-24T21:19:01.023+01:002011-01-24T21:19:01.023+01:00I looked a little further in the matter, and found...I looked a little further in the matter, and found out that there is an EPO AC <a href="http://legis.obi.gr/ESPACEDVD/legal_texts/epc2000/epc2000/documents/ca_pl/_pdf/ep99026.pdf" rel="nofollow">document</a> tabled by the President addressing possible remedies to the 123(2)/(3) trap and the changes required to the Convention for supporting them. The conclusion is that the present, harsh, approach should be kept.<br /><br />The paper appears to belong to the travaux préparatoires for the EPC 2000. It must have been convincing, since Art. 123 EPC2K is in essence identical with the EPC1973 version.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2352189175211648260.post-36993731906379743252011-01-24T16:51:08.550+01:002011-01-24T16:51:08.550+01:00I've heard many times applicants and their rep...I've heard many times applicants and their representatives moan about the "pingelig" application of the EPC by examiners, in particular Art. 123(2) and (3): <i>dura lex sed lex</i> (and some examiners can moan about the existence of Art. 123(1)). I feel that it is a disservice to the applicant and the public not to look for and point out added subject-matter during examination.<br /><br />This is an area where the representative must be particularly qualified and capable of assessing the risks when making amendments, and draft the initial disclosure to providing support for eventual amendments. I recognize that easier said than done, and can be downright difficult when the applicant and his application are from outside EPC-land.<br /><br />I read an interesting 210-page long treatise with the title "<a href="http://www.amazon.de/einschr%C3%A4nkenden-Erweiterung-europ%C3%A4ischen-US-amerikanischen-Patentrecht/dp/3830513933/" rel="nofollow">Das Dilemma der einschränkenden Erweiterung [...]</a>" comparing the practice regarding added-subject-matter in EP, DE, GB and US. It appears that the German courts have something called a "Kommentar-Lösung" (commentary solution), but if I remember correctly there was no concrete example of how it worked. It seems to consist of the introduction of an ad-hoc commentary in the description and/or claims. The concept sounds of something like the establishment of an estoppel, or of a preliminary construction of a patent claim for the determination of infringements, or a disclaimer of the unallowable stuff. I don't see where that could fit in the general framework of the EPC.<br /><br />One could perhaps suggest deriving a national "divisional" application from the (still kicking) validated EP-Patent "pour sauver les meubles", but it seems that such a solution is no longer possible for DE if I believe footnote 495 at the bottom of page 129 (visible in the preview).Anonymousnoreply@blogger.com