tag:blogger.com,1999:blog-2352189175211648260.post7634511249885422704..comments2023-10-24T14:45:41.342+02:00Comments on K’s Law: T 1870/08 – Disclaimer Subtletiesorhttp://www.blogger.com/profile/07992102028406713066noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-2352189175211648260.post-3909097242143452262012-08-02T11:40:25.985+02:002012-08-02T11:40:25.985+02:00Oh don't get me wrong Oliver, my intention is ...Oh don't get me wrong Oliver, my intention is not to criticize the reasoning by the Board, which as you rightfully note, bridges a "region where the teachings of G 1/03 and G 2/10 come close to each other".<br /><br />Here is my problem however: the question of G2/10 was "Does a disclaimer infringe Article 123(2) EPC if its subject-matter was disclosed as an embodiment of the invention in the application as filed?"<br /><br />So, while the reasoning is interesting, it is based on a false assumption: that there needs to be a bridge. The question referred to in G2/10 is clear and does not need any further interpretation concerning undisclosed disclaimers.<br /><br />In other words, a French proverb says "if you wanna kill your dog, you claim it has rabbies". Well, it is the same for caselaws: if you want to make a point, you can always construe a part of a sentence of the decision as meaning something that suits you. This is was the board did in paragraphs 4.4.5 to 4.4.7 which you cited (in a very unconvincing manner in my opinion). Except that in the present case, the conclusion derived from this "something" comes in direct contradiction the question which was put before the EBA.<br /><br />My problem is that this effort, while surely interesting intellectually in the Board's view and quite nicely dealt with, can only create problems, since there was no ambiguity in the first place.<br /><br />It is high time the EPO realizes that patents are used in the real world, and are not a mere abstract object which obeys to the perfect laws of the perfect world of the EPO, and which they can thus play with for the sake of mind games. By doing things like the above, the Board just affirms loudly "I am above reality, and I can deal with whatever issues I decide are important, regardless of the consequences for the rest of the world". <br /><br />I do not approve that.<br /><br />Now I'll give you that the reasoning developed by the Board after the initial mistake is ok in itself and does not seem like it will create much chaos, but it doesn't take away the fact that the approach is dead wrong.<br /><br />Cheers!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2352189175211648260.post-18539982762579703792012-07-27T12:56:46.182+02:002012-07-27T12:56:46.182+02:00Thanks for breaking the silence.
I have a more ...Thanks for breaking the silence. <br /> <br />I have a more positive view of things and in particular of this decision. The Board was faced with a very difficult task: studying the region where the teachings of G 1/03 and G 2/10 come close to each other. In my opinion, they have done a good job. It will take some time to see whether there are loopholes in the approach proposed here, and most likely this is not the last word on the matter, but for the time being I would think that the Board has managed to have a unified theory, which in itself is quite an achievement.oliverhttp://k-slaw.blogspot.comnoreply@blogger.comtag:blogger.com,1999:blog-2352189175211648260.post-29548928722307602542012-07-27T08:30:46.876+02:002012-07-27T08:30:46.876+02:00A new case of what I like to call "in bocalum...A new case of what I like to call "in bocalum" or "in aquarium" reasoning.<br /><br />You start with a very disputable assessment (G2/10 applying to undisclosed disclaimers), and you roll out a BIG development to make it compatible with the existing caselaw... without ANY regards for what happens in real life, and how patents are really drafted and under which conditions they are really drafted.<br /><br />The same kind of reasoning led to intermediary generalisation (which in itself is sometimmes justified, but in many case is pure boneheadedness), which should encourage French patent drafters to go back to the techniques of the 1968 law... that is before claims existed...<br /><br />Depressing.Anonymousnoreply@blogger.com