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 T 1042/18 – Are T 597/07, T 131/01 and T 635/06 dead? A further surprise under Art 13(2) RPBA

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Brief outline of the procedure

The opposition was rejected and the opponent appealed.

The grounds of opposition under Art 100(a) were lack of N and IS.

The rejection of the opposition was confirmed by the board.

The board found that none of D1, D4, D5, D6, D7, D9, D10, D12 and D15 could support an objection of lack on N.

A request for referral to the Enlarged Board of Appeal was also dismissed.

Late filed objection of lack of IS over D4 and D5 – Referral to the EBA

The objection of lack of IS over D4 and D5 was raised by the opponent for the first time during the OP before the Board.

The opponent stated that it had raised N objections on the basis of D4 and D5, which meant that he could also raise IS objections on the basis of these documents at a later date without being restricted by Art 13(2) RPBA20. In this context, he referred to the case law of the Boards of Appeal of the EPO, IV.C.3.4.2 and in particular to decisions T 597/07, T 131/01 and T 635/06 cited therein.

For the opponent, the change the objection of lack of IS based on one of the documents D4 or D5 should be taken into account in the appeal proceedings because the appellant had previously raised N objections based on these documents. In his view, this constituted exceptional circumstances under Art 13(2) RPBA20.

In this respect, the opponent suggested to submit the following questions to the EBA:

1. “Is the opponent-appellant prevented in the later course of the proceedings from invoking documents which have hitherto only been used for attacks for lack of novelty for the first time for lack of inventive step after novelty has been conceded in the course?”

2. “If the answer to question 1 is ‘no’, is there a time in opposition appeal proceedings by which such an attack, now directed against inventive step, must be raised, and if so, what time?”

3. “If the answer to question 1 is ‘yes’, does it make any difference should the document at issue have at least already been used as a combined document (i.e. not as a starting point) against inventive step?”

The opponent’s position as far as late documents are concerned

The opponent filed a series of documents when entering appeal, D28-D32a and during the latter, D33.

D28 and D29 had been recently identified in the light of the OD’s comments on D4 in the contested decision and had been filed at the earliest opportunity.

D30 to D32a demonstrated that the use of like parts was part of the engineer’s toolkit, which played a special role with regard to claim 1.

D33 had only been submitted barely one month before the OP as it had not been available to the opponent earlier. Moreover, this document was prima facie highly relevant, in particular in the light of the respondent’s submissions.

The board’s position as far as late documents are concerned

D28 and D 29

The disclosure of D4 was discussed at length by both parties in the proceedings at first instance. The fact that the OD shared the proprietor’s view in the contested decision does not constitute a change of the issues discussed in the proceedings and had to be considered as a possibility by the appellant at any time. Whether D28 and D29 were not known to the opponent at an earlier point in time or were assessed differently by the opponent in terms of their importance is not decisive. From an objective point of view, the opponent could and should have already submitted documents D28 and D29 and the objections based on them in the proceedings at first instance. Furthermore the board found that the disclosure of D28 and D29 did not go beyond that of D4.

D28 and D29 were not admitted under Art 12(4) RPBA07.

D30 to D 32

The Board agreed in general that the use of like parts is known by skilled person in so far as the parts to be used are supposed to have the same function. There is no need for additional documents to show this. Thus, D30 to D32a are prima facie not relevant.

D30 and D32a were not admitted under Art 12(4) RPBA07.

D33

D 33 was filed after receipt of the summons. The opponent could not show exceptional circumstances justifying a late filing existed. The possible prima facie relevance of the evidence is not sufficient in itself.

D33 was not admitted under Art 13(2) RPBA20

Admissibility of objections of lack of inventive step based on D4 or D5

These objections were raised by the appellant for the first time during the OP before the Board.

For the board, those objections represent an amendment of the opponent’s case and have to be scrutinised under Art 13(2) RPBA20.

The decisions T 597/07, T 131/01 and T 635/06 cited by the opponent concern the consideration of new grounds of opposition submitted after the opposition period in accordance with decisions of the EBA G 10/91 G 1/95 and G 7/95.

The board noted that in appeal proceedings, restrictions on new arguments are imposed not only by the case law of the Enlarged Board of Appeal in G 10/91, G 1/95 and G 7/95 on the consideration of new grounds for opposition, but also by the possibility given to the Boards in Article 114(2) EPC and the RPBA not to admit late arguments. These limitations exist independently of each other and have a cumulative effect.

In the present case, both grounds of lack of N and lack of IS were raised and substantiated in the notice of opposition.

The objection of lack of IS based on documents D4 or D5, which was raised for the first time in the oral proceedings before the Board of Appeal, does not constitute a new ground of opposition within the meaning of the case law of the EBA.

Rather, it is a belated argument to be assessed under Article 114(2) EPC and the provisions of the RPBA20.

For the board, the question at stake in G 10/91, G 1/95 and G 7/95 is whether a new ground of opposition has been brought into the procedure in appeal.

On the other hand, in Art 13 (2) RPBA20, the question at stake is whether there has been a change in the grounds of appeal.

These two questions are not congruent.

While a new ground of opposition raised for the first time after the notification of the oral proceedings before a board regularly constitutes an amendment of the grounds for appeal within the meaning of Art 13 (2) RPBA20, an amendment of the grounds for appeal, conversely, does not at all require that it consists of a new ground for opposition.

For this reason alone, the opponent’s arguments that the objection of lack of IS based on one of the documents D4 or D5 does not constitute a new ground for opposition are irrelevant.

For the board, submissions that are not directed to the requests, facts, objections, arguments and evidence contained in the statement of grounds of appeal or reply have the effect of amending the grounds of appeal within the meaning of Art 13(2) RPBA20, cf. J 14/19, Point 1.4 of the grounds.

In this context, both a new combination of factual elements, e.g. the choice of a different citation or a different passage of a citation as a starting point for an objection of inventive step and a new combination of factual and legal elements, e.g. the reference to a document or a passage in a different legal context constitute an amendment of the appeal submissions.

Thus, an objection of lack of IS raised for the first time during OP before a board on the basis of a citation which was previously only the subject of an objection of N constitutes an amendment of the grounds of appeal under Art 13(2) RPBA20.

For the board, the statement in T 131/01 that it is impossible to substantiate the ground of opposition of IS if lack of N is also asserted on the basis of the same document cannot, in the board’s view, be applied in this generality to the appeal proceedings and the rules on late filings under Art 13 RPBA20.

The board held that in appeal proceedings, a first instance decision already exists, which, from the opponent’s point of view, is usually also issued taking into account the proprietor’s counter-arguments. At this stage of the proceedings at the latest, it is therefore regularly possible – and also usual – for an opponent to first argue that the disclosure content of a certain document is prejudicial to novelty and then, in the event that the board of appeal reaches a different view in this respect, to additionally assert a lack of inventive step on the basis of the same document.

The fact that this is possible and usual is also shown in the present case by the behaviour of the appellant itself, which raised both objections to novelty and objections to lack of inventive step on the basis of documents D1, D7, D9 and D12 in the statement of grounds of appeal.

The fact that the appellant only raised novelty objections in the statement of grounds of appeal on the basis of documents D4 and D5 in full knowledge of the contested decision – in which these documents were considered not to be prejudicial to novelty – cannot be to its advantage.

The board dismissed the referral as the case law to which the opponent referred does not concern the application of Art 13 (2) RPBA20, but the examination of new grounds for opposition and thus a completely different constellation. Moreover, the Board of Appeal was itself able to answer the relevant legal questions in the present case without any doubt.

Comments

Late filed documents

The reasons why documents D 28 to D33 were not admitted do not give raise to any comment as they are in line with existing practice and case law.

It can be wholeheartedly agreed with the board that both a new combination of factual elements, e.g. the choice of a different citation or a different passage of a citation as a starting point for an objection of inventive step and a new combination of factual and legal elements, e.g. the reference to a document or a passage in a different legal context constitute an amendment of the appeal submissions, and may not be admitted under the RPBA07 or 20. Such new combinations also constitute an amendment of the opposition submissions.

Change from a N objection to an IS objection

In the present decision, considering that changing from a N objection to an IS objection is not possible under Art 13(2) RPBA20 boils down to a very petty and severe interpretation of Art 13(2) RPBA20.

The opponent was certainly unfortunate when he did so with D1, D7, D9 and D12 but not with D4 and D5 in the grounds of appeal.

The decision is correctly motivated, and new grounds of opposition are certainly an amendment to a party’s case.

However, the existing case law, especially T 131/01, has given a very pragmatic solution to the problem of an impossible combined objection of lack of N and lack of IS on the basis of the same document. I have some doubts that, as claimed by the board, such an objection is at all usual, especially in view of T 131/01.

In view of the existing case law and especially T 131/01, a referral to the EBA would have been fully justified, probably with slightly different questions. The present questions are too broad and a reference to T 131/01 appears necessary.

I would allow myself to go as far as to claim that the present board has ignored Art 20(1) RPBA20 as it ignored the specific context in which this decision was taken.

One lesson to be held, is to raise all possible objections when entering appeal, even if this means raising an objection of lack of IS next to an objection of lack of N based on the same document.

We now simply have to wait for another board to come up and claim under Art 12(6) RPBA20, second sentence that such an objection is not admissible and should have been raised in first instance. The mess will then be complete.

The pragmatic solution accepted in T 131/01 should not be thrown overboard just for the sake of the RPBA20.

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Comments

21 replies on “ T 1042/18 – Are T 597/07, T 131/01 and T 635/06 dead? A further surprise under Art 13(2) RPBA”

Daniel, I’m smiling when I read your statement that running both a N attack and an IS attack on the basis of the same prior art reference is “impossible”. Perhaps I have misunderstood your position, but in England judges at first instance routinely write judgements in which they write their conclusions but then (for the benefit of the court of appal if the loser appeals) go on to write at almost the same length words like “But if I am wrong about the lack of novelty, I shall now go on to explain why the claim lacks an inventive step”. Why cannot an Opponent write in the same vein, when attacking any given claim for want of patentability over D1? Why is it “impossible”?

DXThomassays:

Dear Max Drei,

I can accept your smile and answer also with one!

I can follow the fact that a UK judge does how he does and has no problems with a lack of N and a lack of IS based on the same document.

But this is not what has been said in T 131/01 and the other decisions alike.

I invite you to look at it.

I have been training EQE candidates for nearly three decades. One mistake which is to be avoided in paper C is to use the document used for alleging lack of N as CPA for IS.

A candidate going down this lane is more or less guaranteed to get the ticket for the next year. It means that he is not capable of making the choice between an attack of N under Art 54(2) and an attack of IS under Art 56.

Should a candidate make an objection under Art 54(3) and under Art 56 on the basis of the same document, then he is without any doubt not fit to practice!

You are allowed to smile, but I have seen this kind of attacks by candidates, and even by the odd examiner!

It is not that Paper C is the reference, but in European practice it is absolutely unusual to proceed this way!

Anon Y. Mousesays:

Regarding the apparently unusual English practice of running novelty and inventive step attacks from the same document:

In circumstances where there is no serious room for argument whether all of the claim features are disclosed in the prior art, then clearly it usually makes no sense to argue both novelty and inventive step from the same document.

But there are frequently circumstances where it is not so clear-cut, for example if a feature in the claim is defined in unclear terms, or by reference to a parameter or some other characteristic that may or may not be implicitly disclosed in the prior art. In those circumstances there is clearly room for argument about whether or not that feature is truly disclosed by the prior art. This happens all the time in polymer chemistry, to name but one example.

In that second set of circumstances, a sensible Opponent will foresee at the outset that the decision might go one way or the other on novelty. But if the decision is in favour of novelty, and in particular if that decision is reached only on the basis of a trivial difference that has no technical effect, it would seem foolish to disregard that document as a potential closest prior art document, wouldn’t you agree?

Anonymoussays:

I took up the invitation to take a look at T131/01. Opponent did not appeal the OD’s finding that the claim was novel over the DE reference. The TBA made short shrift of Oppt’s IS attack based on the DE reference. All this suggests that Oppt knew that the N attack was futile but would serve as a placeholder, with the weak IS attack in reserve for later.

I am assailed by disparaging remarks about friends operating behind the White Cliffs of Dover. But England thinks that inter Partes proceedings should be speedy and efficient. That means, inter alia, 1) going up to the Court of Appeal only once 2) being penalised in costs for wasting the court’s time and resources with futile attacks and 3) setting out one’s entire case at the outset.

Those representing clients are trying their best to win for the client. Seeing such behaviour as cheating is not helpful for the debate. Patent litigation in England used to be slow, arcane and grotesquely expensive. The court is master of its own proceedings. Patent litigation in England is no longer slow or inefficient, thanks to a dtermination of the court to stamp out abusive behaviour by lawyers representing moneyed clients. Why can’t the EPO do the same?

Reverting to T131/01, what if the novelty attack had been a serious one, eminently appealable? Should Opponent still not set out the obviousnes attack?

Anon Y. Mousesays:

Well said, Anonymous. I find the insistence that it is literally impossible to run novelty and inventive step attacks based on the same document to be sadly symptomatic of the “form over substance”, “rigid procedure over pragmatism” thinking that seems to pervade so much of the EPO’s approach to so many matters.

Like you, I find the apparent attempt by Mr. Thomas to blame those of us “over the channel” for what he seems to see as incorrect approaches to procedural issues (in making novelty/inventive step arguments, and in filing large numbers of Auxiliary Requests – see below) to be rather distasteful.

Divus Julianus Apostatasays:

Dear Daniel, I cannot more than agree with you, but, over the last 10-15 years, our colleagues over the white cliffs of Dover have massively introduced this English habit into both opposition and appeal proceedings thereby grossly inflating their submissions. Since neither ODs nor BoAs seem to object, we, on the continent, have – regrettably but inevitably – to follow. I have recently reviewed by accident my appeal cases from the late 90s /early 00 with my today‘s cases and are quite embarrassed how inflated they have become.

DXThomassays:

Dear Divus Julianus Apostata,

It is difficult to object to the size of the submissions as a party should be allowed to present what it thinks necessary.
What is however disturbing is the inflation in AR. Without any doubts this represents extra work.

In the early days of the EPO, the colleagues from over the Channel were very reluctant to use AR which was a German practice.
But the appetite came quite quickly. From then on, the inflation started.

One way to reduce the number of AR would be to tot up the number of claims over all AR and apply the claims fee as it is applied at filing.
The fee could later be reimbursed in part if not all AR have to be discussed, but it would have to be paid for all AR that have been examined.

I know that I will not make friends with lots of representatives and especially those over the white cliffs of Dover. But it is my honest opinion.
More request means more work and goes on a par with higher costs. And examiners are under a tremendous production pressure.

I would like to add that the inflation increased drastically with the RPBA20.
It was abundantly clear when the new RPBA were presented in December 2018 that they would induce a surge in work for the first instance.
The answer from the Chair of the BA during the conference was that DG1 was informed and had raised no objections.

I do however maintain that Art 13 RPBA20 should not lead to abandon a good and pragmatic practice as it exists since T 130/01.

Anon Y. Mousesays:

The number of Auxiliary Requests is generally dictated by the number and extent of different objections raised by the Opponent.

Particularly given the increasingly harsh line taken by the EPO on the late-filing of requests, a conscientious and careful representative serving the client’s best interests will often find it necessary to file a large number of Auxiliary Requests as a precaution against all possible outcomes and permutations with regard to the (unknowable) attitude of the OD/BOA to the Opponent’s objections.

In all but the simplest of cases this leads to a proliferation of AR’s and in all but the simplest of cases the EPO’s desire for a neatly-nested set of convergent requests, stacking inside one another like a Russian doll, is unrealistic.

In due course many of these might turn out to be unnecessary but it is unknowable at the outset which branch the proprietor will be directed down by the OD/BOA’s preliminary opinion.

In these circumstances why should the proprietor be penalised, as you suggest, by the levying of excess claims fees – when the number of claims is responsive to the opponent’s choice of approach, and is further dictated by the EPO’s ever more restrictive approach to late filing?

If the EPO wants to simplify procedure and reduce the number of issues on the table it needs to be more flexible and allow parties to take a more nimble, responsive approach, with active management of the case. Sadly all of that is being sacrificed in the name of “efficiency” and “productivity”, with all-too-predictable backfiring consequences.

Dover Attorneysays:

This summarizes the problem entirely. The problems are caused by rigid procedure, draconian rules on case amendments and the understandable desire to ensure that all documents are admitted at first instance so they can be used in appeal proceedings. The EPO’s strict framework has caused all of these problems; you reap what you sow. Representatives are painted as somehow trying to game the system when really they are simply trying to protect their clients’ interests.

Opponents throw mud at the wall to see what sticks. You cannot blame them for doing so because you never know on which ground you will win. Patentees can be faced with added matter, enablement, novelty and inventive step attacks and perhaps could be faced with multiple attacks under each ground. There may also be clarity attacks under the guise of enablement attacks. A single attack under each of these grounds quickly leads to various permutations of amendments that might be needed. Any representative which does not file requests dealing with every permutation of the attacks is playing with fire to put it mildly.

If the key issues were identified at an early stage of the proceedings and the patentee were provided with the flexibility to amend their case to fix the clearly fixable issues, then the case could be focused on the key contentious issues. However, with the way things currently are, an opponent will raise numerous different objections and if the patentee does not file requests dealing with all permutations of the objections at the right time, the opponent will cry foul and claim that they never could have foreseen that the patentee would put in a late-filed request that deals with all of the issues that the opponent raised.

Daniel X. Thomassays:

To all the contributors from over the Dover cliffs,

I have decided not to reply separately to the various comments you have made.

I will simply resume the situation as you apparently see it: the UK system is the best possible and if we were to follow it, most of the problems mentioned here and there would simply not occur.

Just one thought: we are not in the UK but in Europe and the way matters are discussed is somehow different. After 40+ years of EPC the penny should have dropped.

The RPBA20 have created one massive problem: the bulk of the work has been transferred to the first instance and the very formalistic approach by the boards on late filings is actually detrimental to the overall efficiency of the office. Combined with a discretion applied in a hap hazard way, it puts an enormous strain on all parties.

The boards have to be made truly independent, but handling late filings as it is done presently by the boards is not reasonable. Formalism is triumphant when more pragmatism should be the rule.

Mixing N and IS cannot be a solution to this problem. As any rule, it may suffer some exceptions, but they have to be applied sparingly applied and should remain a true exception.

Anon Y. Mousesays:

Daniel,

With your opening remarks, once again we see your unfortunate tendency to engage in personal attacks on commenters rather than engaging with the substance of their arguments. I would rather have hoped that you would have left that behaviour behind in the IPKat comments section, and not carried it over to your own blog.

This particular commenter from “over the Dover cliffs” certainly did not suggest that our system is perfect. For a start, I would not take quite the same rosy view as another commenter did with regard to the efficiency and cost of English court proceedings, even if they are more efficient and less expensive now than they were some years ago. The disclosure requirements, and attendant cost, of English civil litigation are notorious even if admirable efforts have been made in recent years to simplify matters such as through the forum of IPEC.

On the so-called “mixing” of Novelty and Inventive Step, would you at least acknowledge that there are circumstances in which the question of novelty is not – and cannot be – clear-cut? And that in such circumstances it represents a perfectly reasonable position to adopt, to say (for example) that “we believe that feature X is implicit in D1, but if the OD disagrees, it would nevertheless be obvious to add feature X when starting from D1 as the closest prior art”? Such situations arise very frequently in (at least) both polymer chemistry and pharmaceuticals/life sciences, as I can attest from personal experience. This approach is, in my view, a pragmatic response to the fact that reality is often messier than the pristine world of EPO procedure might like it to be. It is also entirely compatible with the spirit of EPO proceedings insofar as parties are supposed to facilitate “due and swift conduct” of the proceedings, in that it explicitly presents a comprehensive case up-front and openly acknowledges issues (the disclosure of feature X, for example) which might need to be the focus of further discussion at oral proceedings. Is that really such an alien viewpoint?

On your other points regarding the problems associated with the RPBA20, I find myself in agreement with you. In that context would you agree that the profusion of auxiliary requests is a rational strategy for parties to take in reply to the rigid formalism adopted under the RPBA, and not merely some unwelcome Anglo-Saxon imposition as you and Divus Julianus Apostata seem to suggest?

Daniel, you are once again coming across as jaundiced. This I greatly regret because you are a more kindly person than that and you are letting yourself down. One of the great strengths of Europe is the diversity of its legal thinking. One would have thought that the EPO, more than any other jurisdiction in Europe, would have the freedom to compare and contrast legal procedure all through the EPC Member States, and the motivation to mix and match, and harvest the best ideas from all those jurisdictions. Take NL for example. Do not its patent judges do that? Why not the EPO too? Perhaps because those calling the shots inside the EPO are not being called to account by anybody, and those with decades of career experience inside the EPO are short of personal experience of inter Partes proceedings anywhere else but inside the EPO.

I don’t see any lack of ethics, let alone cheating, from any of those Eurpoean patent attorneys posting here. They simply want to see the EPO sustaining rather than trashing its hard-won, decades old reputation for procedure that balances predictability with efficiency, followed by the rendering of decisions of higher judicial quality than those rendered by less specialised judges that decide patent cases in national courts. Why can’t the EPO be more intelligent when changing The Rules. Every litigator warned that the new Rules would explode the number of Auxiliary Requests. Now, after the explosion that every litigator warned about, all we get from the EPO is a shrug of the shoulders, a wave of the hand and a dismissive “get used to it” fob off.

Active case management is the answer. But that requires case managers with the power to discipline litigants that are gaming the system. But that’s all too difficult of the EPO to contemplate, right? I realise that the EPO gives training to those who will chair oral proceedings but how much training does the EPO give in the skills of case management, and to whom does it give such training?

DXThomassays:

Dear Max Drei,

I thank you for taking care of my health, but I can reassure you, I can do this myself.
I looked in the mirror and could not detect any jaundice!

I can follow you to a certain extent when it comes to look at national decisions.

The EPO system has been so conceived that national judges are absolutely free in their decisions.

Some national judges follow the case law of the EPO, or even claim to do so, some do not. This is a fundamental aspect which we all have to respect.

Conversely the EPO boards of appeal and the EBA have no obligation to follow national case law. It has even happened at times that the EBA followed a national decision.
Just think of the famous, now defunct, “Swiss-type claims”.

Sometimes the EBA has also said that legal solutions valid in a contracting state will not be applied by the boards.
This is as well a fundamental aspect which we all have to respect.

There are also, or at least there were, regular meetings between members of the boards and national judges dealing with patent matters. Venice was a venue for such gatherings.

I am convinced that those gatherings have been very fruitful and helped the mutual understanding and they should be upheld, even if in the end, they kept their autonomy.

In the future, with the UPC, there should also be such meetings, but each decisional body should keep its independence in matters of validity.
The UPC might become the leading court in matters of infringement in the EU, but certainly not in matters of validity.

I can follow you in matters of AR.

It was clear to all concerned that the bulk of the work would be transferred to the first instance.
The introduction of the new RPBA was a political decision of the AC.
For whatever reasons, it has decided that the BA would be given an even greater deal of discretion, and manifestly ignored the fact that this might reduce the overall efficiency of the office.

I have a great understanding for the filing of lots of AR in first instance.
I am even of the opinion that in first instance they could even be divergent at the beginning of the opposition procedure, but not admissible when late filed.

There is no absolute or optimal number of AR.
It depends too much from the actual case.

I made one proposal, admittedly provocative, to discipline litigants that are gaming the system.
I agree with you that some of them are abusing the system.
In view of my experience, I consider that for a standard case anything above 15-20 AR seems not warranted.
And yet the record of AR is 628. I was once confronted with 134.
Very often, they all contain the same problem so that it is rather easy to deal with them.

I do not think we are really far apart. Just think of it.

That representatives want to defend their clients does induce any problem to me.
It is more the anonymous side in the comments which has disturbed me.
I have taken position on this point.

DXThomassays:

To Anon Y. Mouse,

For a start, we did not herd cows or pigs together (French say) and I forbid you any familiarity.
I accept the familiarity of Max Drei as I know him personally for many years.

I wish to inform you and all those replying under the cover of anonymity or with a pseudo that I will stop replying to those kind of comments.

Either make yourself known or keep quiet. You should have the courage of your opinions.

As I just said in reply to a comment on the Addendum to T 1042/18, to take refuge in anonymity is the courage of cowards.

When I see the reactions I provoked, I would however agree with a German say: hurt dogs bark.

I will leave it at this whether you like it or not.

I am not any longer embarking on discussions with people I do not know.

I have more interesting things to do than discussing with ghosts.

Anon Y. Mousesays:

What an utterly extraordinary response.

If you do not wish to reply to anonymous (or even pseudonymous) comments then I fear that you have fundamentally misunderstood the purpose of blogging. I am sharing my opinions in good faith, but have good reasons for not sharing my name, as do many others. Perhaps some of us take private positions which are contrary to those of our employers or clients. Perhaps we do not wish to be known by name by examiners at the EPO, who also read this blog. Or perhaps we wish to be able to discuss freely without being judged by nationality, sex or seniority.

If you perceive even the mildest disagreement with you as a personal affront, then that is a matter for you, I’m afraid. The rest of us come here because case law, by its very nature, raises interesting legal points which are worthy of debate and discussion. Your stance seems to be that anything short of whole-hearted disagreement with your opinion is beneath contempt.

You repeatedly decry those of us who dare to test alternative propositions as being discourteous and yet have no compunctions about making sweeping generalisations based on nationality, and levelling insults rather than engaging in respectful debate. To me, at least, that is highly disappointing, since I am genuinely interested in the thoughts and opinions of someone so experienced with such an insight into the EPO mindset.

As you are so fond of quoting proverbs and sayings, let me quote an English one for you: “he can dish it out, but he can’t take it”.

Now are you going to respond to any of the substantive points raised by other commenters (even if I’m persona non grata) or aren’t you? If you can’t back your position up with anything concrete, and instead intend to resort to lashing out at anyone who dare test the boundaries of that position, then I’m afraid that devalues your contribution to the whole debate.

DXThomassays:

@ Anon.Y.Mouse,

I am certainly not bad at dishing out, but you are mistaken when you think I can’t take it. At least you know where I and you stand.

I am simply not easy to convince.
I express in general clear positions, but if the reply to them is not convincing, I will not necessarily change my mind on the topic.

I can agree with you that case law raises interesting legal points which are worthy of debate and discussion.

My stance is certainly not that anything short of whole-hearted disagreement with your opinion is beneath contempt.
I would classify this comment as unnecessary and totally beside the point. It runs of like water on a duck’s back.

You are perfectly free to disagree and I am free to disagree with you. You should at least respect this.

We can at best agree that we disagree, but it is not by repeating the same stance like a Tibetan prayer mill that the matters will go forward. This is why I sometime refrain to comment. I am not in for lengthy useless discussions.

The problem was particularly acute when discussing the adaptation of the description.
That you want to get the best out for client is quite normal, but you have to accept that there are other ways to look at the problem.

Dover Attorneysays:

I recently had a case where a German representative filed a huge number of Auxiliary Requests. I am sure I can find examples of cases where representatives from France and Netherlands have done the same thing. Is that my fault? Is it my ancestors’ fault? Has the practice got nothing to do with nationality? Is it better not to mention nationality at all?

Dover, the issue is WHY the “huge” number of AR’s. Was the filer gaming the system (EPO, if you don’t accede to my MR I can keep you here for days on end) or was the huge number necessary to protect the legitimate legal interests of the client?

My feeling is that the EPO has so much room for discretion, it can come down as hard as it pleases on representatives who waste its time, so that it is by and large counter-productive for a party to file excessive numbers of AR’s. But what is “excessive” these days?

DXThomassays:

To all those who support anonymity in blogs,

I am allowing myself to compare a blog to a newspaper or a magazine.

Have you ever seen anonymous reader’s letters published?
Sometimes the full name is published, sometimes just the initials, and very rarely you see the indication that the name is known but will not be published.

I have also seen publications, legal or other in which the author writes clearly that what is in his paper is his private opinion and does not engage his employer.

In those two cases, there is no anonymity and it is difficult to see why this should be the case when commenting blogs.

After all on LinkedIn you cannot hide your name when you reply.
Why should it not be the case for comments in blogs?

I will not any longer comment under a pseudo or in an anonymous manner.
If, for various reasons, I cannot publish under my name, I will refrain from saying anything.

A possibility would be to give my name to the blog manager under the proviso that it is not published.
This is what can done by newspapers and magazines.

Just giving an e-mail is not enough as I know too well that there are a lot fake e-mail addresses with the aim of staying anonymous.

It is not too much asking to be clear and open when commenting, but shadow boxing is not in, at least in my eyes.

Anonymoussays:

Will this policy also apply to your friend MaxDrei? Or does openness only flow one way? You consider that you are entitled to know the real identities of people who comment on your posts, but other commenters are not? What purpose does that then serve?

If we are going to give real names are you going to start checking them against the EPO Register to ensure that we are who we claim to be, and so entitled to comment in your view?

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