EP 3 256 179 B1 relates to injectable implants for sculpting, augmenting or correcting facial features as the chin.
Brief outline of the case
The OD rejected the opposition and the opponent appealed.
The board held that claim 1 as granted infringed Art 123(2).
The patent was maintained according to AR1.
The reasons for which claim 1 as granted infringe Art 123(2) are interesting.
Claim 1 as granted relates to composition comprising a crosslinked hyaluronic acid (HA) crosslinked with 1,4-butanediol diglycidyl ether (BDDE) having inter alia the following properties:
- wherein the composition has an elastic modulus between 500 Pa (+/- 50 Pa) and 900 Pa (+/- 90 Pa) at 5Hz;
- wherein the composition exhibits an extrusion force between 4N (+/- 0.4N) and 15N (+/- 1.5N) at 13 mm/min
The opponent’s point of view
The ground of opposition under Art 100(c) precluded the maintenance of the patent as granted. The reason for this was that the numerical values in parentheses in claim 1 defined ranges which did not correspond to the meaning of “about” in the context of endpoints of ranges as set out in paragraph [00028] of the application as originally filed.
As there was no support for the deletion of “about”, AR 1 also contained added subject-matter.
The proprietor’s point of view
Paragraph [00028] of the application as originally filed disclosed that the modifier “about” meant that a numerical value could be modified by +/-10%.
Claim 1 thus had a basis in the application as filed.
The board’s decision
Claim 1 of the granted patent differed from claim 1 of the application as originally filed by the features in brackets, which replaced the modifier “about“.
For the board, in the application as filed, the meaning of “about” in the context of numerical values, i.e. that values could be modified by +/- 10%, does not apply to endpoints of ranges.
According to paragraph [00028], the lower endpoint may be reduced by 10% and the upper endpoint increased by the same percentage.
Claim 1 of the patent defines that the lower endpoint may be increased by 10% and the upper endpoint reduced by 10%, and therefore the claim defines a range that was not originally disclosed.
The patent could thus not be maintained as granted.
Comments
The board was certainly right in deciding that claim 1 as granted infringed Art 123(2).
The +/- 10% were originally disclosed, but not for the end values.
If a given margin, e.g. +/- 10%, is mentioned in the original disclosure, the term “about” in a claim can be replaced by +/- 10% without infringing Art 123(2).
On the deletion of about
In T 1677/13, Reasons 3, the board held that the deletion of the term “about” before numerical values does not infringe Art 123(2) according to normal practice under the Case Law of the Board of Appeals, unless the skilled person would understand, from the whole content of the application as filed, that an exact value as such could not have been meant, as was the case in T 934/96.
In T 875/11, the board held that deletion of “about” before specific numerical values in a claim, only the absolute value is then claimed as a limit value, which value, in each case, was itself clearly disclosed to a skilled person. The deletion was thus allowable.
In T 356/16, the deletion of “about” in the upper limit of “less than about 0.3 mm” and in the lower limit “between about 0.008 mm and about 0.1 mm” present in the application as filed, in order to claim a thickness range of 0.008-0.3 mm infringed Art 123(2).
Reminder
According to the Guidelines F-IV, 4.7.1 terms such as “about” or “approximately” are applied to a particular value (e.g. “about 200°C” or “approximately 200°C”) or to a range (e.g. “about x to approximately y”), the value or range is interpreted as being as accurate as the method used to measure it.
According to the Guidelines F-IV, 4.7.2, if the application suggests that the use of terms such as “about”, “approximately” or “substantially” extends either the interval claimed by a value and/or range outside the error margins of the measurement system or the structural unit beyond the manufacturing tolerances or any other tolerance that the skilled person would take into consideration in the technical field concerned, then the wording of the claims becomes vague and undefined and an objection under Art 84 should be raised.
Proofreading before filing
Proofreading of the original description before filing would have avoided the problem.
In lots of cases an objection under Art 123(2) arises from mistakes which could be easily avoided by proofreading before filing.
If the description discloses two separate embodiments A and B, A+B has not been disclosed, even if the skilled person could easily envisage the combination A+B. When the description discloses embodiment A and alternatively embodiment B, the combination A+B is clearly out of bounds. I often came across such problems in examination or opposition.
On the procedure
In its first communication the ED raised an objection under Art 84 relating to the use of “about” in claim 1 as filed. In reply to this objection, the applicant deleted about and replaced it with values +/- 10% for the end ranges.
The ED did not spot the discrepancy with the statement in paragraph [00028] and proceeded to grant. As the then applicant was happy to get a patent, it did not check whether a potential problem of added matter was not excluded.
In the present case, in AR1 “about” was deleted in claim1 as well as the +/- n% which lead to the problems under Art 123(2).
According to T 1481/05, Reasons 3, the board held that features in parentheses introduce an ambiguity as to the content of the claimed subject-matter. For this reason alone, the ED should not have decided grant. The only items in parentheses acceptable in claims are for reference signs, cf. R 43(7) and Guidelines F-IV, 4.18
Comments
14 replies on “T 1642/22 – Deletion of “about” and its replacement by “+/- %” and Art 123(2)”
The Guidelines F-IV 4.7.1 and 4.7.2 relating to the use in claims of the terms « about », « substantially » and « approximately » set out difficult to implement notions (references to measurement methods and manufacturing tolerances) and unduly restrictive requirements, and create risks of added matter unfairly damaging to the applicant.
It is surprising that the Guidelines do not refer to the principle that a claim has to be considered as a whole and to the relevant function or context of use. For example, the term « substantially » implies a different angle range for a substantially vertical element or a substantially horizontal element. For a substantially vertical element, even a small departure from the vertical may lead the element to rotate downwards under the action of gravity. The implication of a departure from the horizontal for a substantially horizontal element is not at all the same, so that the meaning of « substantially » may include a much greater range.
I have seen a case in which a claim mentioned a « substantially hemispherical » part and the ED deleted the word « substantially » for not complying with the Guidelines at the 71(3) stage. The term « substantially hemispherical » was quite clear even for a lay person when considering the function of this geometry and the description. At the same time, as the description did not disclose a strictly hemispherical geometry for that part, the ED’s deletion of « substantially » raised a potential issue of added matter.
Mr Hagel,
The argumentation you bring forward in your comment about the Guidelines F-IV 4.7.1 and 4.7.2, boils down to your old rant about adapting the description. You might be happy with T 56/21, but there is a referral in the pipeline on this matter: see EP 2 124 521 B1 (T 697/22), commented in this blog.
If the term substantially may induce a lack of clarity, then it has to be deleted, obviously taking care of Art 123(2). I do nevertheless agree that improving clarity cannot be done at the price of introducing added matter. However, if the term substantially has been wrongly deleted, re-introducing it in the claim should be possible.
Amendments carried out by EDs when issuing the communication under R 71(3) are a nuisance, and it is up to the applicant to react, but it has to give good reasons. If he considers that the deletion opens a problem of added matter it has to explain how this is the case, and not merely state that there is a potential problem of added matter.
Besides one case in the UK, and on a UK patent, I have not yet seen a granted EP invalidated due to added matter introduced when adapting the description.
Interesting case and interesting comments. Besides “hemispherical” there is often difficulty with the word “cylindrical”. The word has a precise mathematical meaning but readers who are not mathematicians often classify as “cylindrical” shapes that do not comply with the strict mathematical definition. Suppose (for example” that the invention is embodied in a lengthy venous or arterial graft. If it is slightly wider at one end than the other then it is certainly cylindical in substance but definitely NOT cylindrical, as such. So I claim “substantially cylindrical” and for my trouble receive an objection under Art 84 or, worse, an Examiner edit in claim 1 of the Druckexemplar accompanying the 71(3), deleting the word “substantially”. This opens the way for every competitor to design around the granted claim, no?
The EPO prides itself on being “real world” but in its reaction to approximately/about/substantially, it sometimes seems to delight in placing Applicants into the Art 84/123(2) trap. Daniel, I think your remark that with a soupcon of “proofreading” all legal problems disappear is a trifle optimistic, even a little bit patronising.
You carefully state that it depends on “context” whether “substantially” complies with Art 84 EPC. Indeed! But the more “context” is invoked, the more uncertain we become, whether or not we comply with Art 84 EPC. Take a recipe for a new sauce. In the list of ingredients, must we preface the amount of each ingredient with about, or approximately? Or is that implicit? Very different, no, from a claim to a new alloy composition? Most claims are somewhere in between a claim to an aloy and one to a sauce, no?
The aim should be to grant Applicant a scope of protection commensurate with the contribution to the art. Often, one needs “substantially” to do justice to the inventor and, often, “substantially” does NOT result in a claim that is so lacking in “clarity” that it is ungrantable/unenforceable. To borrow from the case law of the UK Supreme Court, every skilled reader knows with certainty what the drafter of the claim was using the words of the claim to mean.
It strikes me that both the case law of the Boards, and the text of The Guidelines, are not yet optimal, do not yet deliver as much legal certainty as is possible. One hopes that, going forward, Boards will write better case law, that will find its way into the Guidelines.
Dear Max Drei,
It should not come as a surprise, but I have to disagree.
Cylindrical has a very specific meaning: a line rotating at a given distance from an axis of revolution. A cylinder can be right or oblique. When a hyperbolic curve is rotated at a given distance of an axis of revolution, the resulting figure is not a cylinder, not even substantially.
If a venous graft or a stent, is slightly wider at one end than the other end, the stent is by no means cylindrical, even substantially. It is plaining conical. If the outside surface of the graft/stent is undulating, it is by no means cylindrical, even substantially.
The difficulty for the examining division is to judge on the basis of the whole disclosure, what is the actual subject-matter claimed. By adding substantially, you might hinder a competitor to sell a conical stent, but if your disclosure is a cylinder, you cannot, by adding substantially make a conical stent out it.
My comment about proof reading results from the numerous cases I have come across in my professional life. There were clear cut cases in which proofreading would have made life easier for the applicant later in the procedure or in opposition.
The worse I have ever seen was a description in which the style abruptly changed in the middle of it, and the various definition given in the first part did not align with those in the second part. To me it was sh.. in and sh.. out, so no wonder the patent was revoked. I am not optimistic, I am a realist. I leave you with your opinion that it can even be patronising. What I say stems from real experience.
There is also a fact that some organisations, I think here of universities, auction the drafting of patent applications and select the cheapest representative. SMEs might also go for a representative with lower fees than another. They are simply limited in their financial resources. The problem is that the applicant then gets what it pays for, and proofreading is often not in.
You can feel free to begin the definition of every component in an alloy or a recipe with about, substantially or approximately. I am not sure that you will be happy in the end. Besides a problem of clarity, you may also end up with a problem of added matter if you start combining components. To me it is the same when in every sentence in a description you find “may”. It “may” be (sorry for the pun) fashionable on the other side of the Atlantic, but leads to big problems on this side of the Atlantic.
I also know for a fact that there are examiners who behave like ayatollahs when it comes to ca., about or substantially. On the other side, there are representatives who think that about or substantially are nice things, which could even lead to new species of angora cats. I think that both are wrong.
That in specific cases, “substantially” does not result in a claim that is so lacking in “clarity” that it is unallowable/unenforceable. But it should remain the exception, not the rule.
I will not dispute that both the case law of the Boards, and the text of The Guidelines, are not yet optimal, and may not yet deliver as much legal certainty as is possible. It however depends on which side of the fence you are sitting.
As an applicant/ proprietor you would like the case law and guidelines to allow you to stretch the disclosure as much as possible. As an opponent or potential infringer/intervener, you would like to see the patent as strictly limited as possible.
For my part, the case law and the guidelines strike a good balance of those, in essence, conflicting interests. Room for improvement is however there, but this not only valid for the case law and the guidelines.
Mr Thomas,
My comment had to do with amendments in relation to the use of « substantially » or « about » in the claims. Amendments in the claims are a different topic than adaptation of the description to claim amendments and I am surprised that you have linked the two issues by saying that one « boils down » to the other. It may be that the « old rant » that you attribute me is merely a projection of your own concerns. I am also surprised that you use such unkind words as « old rant ». We may very well agree that we disagree and keep the tone courteous and professional.
Sometimes we agree. For example, I agree with your response to MaxDrei that both the applicant’s and the third party’s viewpoints must be considered, this is exactly how I feel.
As to the EPO management’s current approach to the adaptation of the description, here is an excerpt from the SQAPs 2024 findings regarding amendments proposed by EDs : « High level of agreement in assessment of EPO experts and attorneys. Amendments proposed by division appreciated. More consultation with applicant requested. Attorneys urge caution adapting description, especially deletion. More consultation and reasoning requested. »
Indeed, the EPO management now listens to representatives’ feedback. This was not the case three years ago. Also, the relevant Guideline F-IV 4.3(iii) was amended in 2024 to clearly put the onus on the ED to justify an amendment to the description.
Mr Hagel,
In order to be coherent, when deletion of ca,, about or substantially is needed, it does necessarily implies that those terms cannot be left in the description. This is plain logic and should actually not be subject of a debate.
Whether you like it or not, your fixation with the adaptation of the description is indeed an old rant.
This is nothing discourteous, but a statement of facts.
You also have the nag to regularly come back with comments which are incomplete, or worse misleading. They are worded in such a way that they support your argumentation.
Just look at the way you come back regularly on the notion of the patent being its own dictionary. This is also another old rant of yours. I invite you to look at my reply to your comment on IPKat on T 1193/23. You cited Chapter II.A.6.3.3 of the CLBA, to conclude that it is an acquired fact that, in general, case law of the boards accepts that the patent is its own dictionary.
This is not true in its generality, but in the specific case dealt with under II.A.6.3.3 “Interpretation of ambiguous terms or confirmation of the text of a claim”. The same applies to your quotation of Chapter II.A.6.3.5. headed “Use in the examination relating to the clarity requirement pursuant to Article 84 EPC”.
This is clearly dishonest to the average reader as it indicates a general way of interpreting the claims based on the description, but is actually only valid in very specific cases, which moreover are at the core of G 1/24. You should have had the decency to wait for G 1/24 and not come with your truncated and biased statement beforehand.
That examiners might have been amending the description without proper justification is not disputed. That the Guidelines have been strengthened in this respect is a good thing. The Guidelines should also insist that examiners should not attempt to sneak in amendments when issuing the R 71(3) communications.
For instance, when the subject-matter of a dependent claim is used to limit an independent claim, the optional character of the subject-matter of the dependent claim in the original description has to be deleted.
The same applies when some embodiments are not any longer falling under the independent claim. I am not in favour of deletion, but they cannot be considered as illustrative of the claimed invention. By refusing to amend the description in correspondence with the allowable claims, you simply foster Angora cats. The EPO management has never said that examiners can do without adapting the description, but this is what you suggest.
Last but not least, I do not remember that you ever genuinely attempted to reply to a question of mine. I am for instance still waiting to see one example of a patent revoked by a court in post-grant proceedings due to added matter having come from the adaptation of the description. This is not an old rant, but an old habit of yours, which is actually not better.
Mr Thomas,
Your comment shows that you make our diifferences a personal matter to the point of using unkind language. This is your choice, a choice I will certainly not adopt.
I only need to say that you are totally mistaken when you attribute me a « fixation » or « old rant » as regards the description adaptation issue. My interest had nothing personal, it was shared by many colleagues for the simple reasons that it gave rise to an unprecedented and prolonged debate between the Boards of Appeal, dubbed a « saga » by many patent firms which reported the decisions on their website, and it was a constant concern for practitioners. It was thus a popular topic, as any can judge from the number of articles published in epi information or the CIPA journal (see for example the articles cited in third party observations submitted in T 56/21).
In addition, I am happy with the EPO’s change of tack over this issue and more broadly over any amendment whether in the claims or the description entered by an ED without prior consultation with the applicant or without detailed reasoning to support an amendment.
I am also satisfied that the EPO has revised its Guideline accordingly, bringing it into alignment with the relevant PCT Guideline. Such harmonisation is important for practitioners using the PCT route.
Daniel, I thank you for your comments in reply to mine and would like to have another round in the debate.
Turning to dictionaries yields different definitions of “cylinder”. Solid or hollow? Wall thickness zero or finite? Open-ended or with closed ends? Confined to circular cross-section or including other sections such as oval?
At least we agree that for mathematicians, the line of zero width that moves all around a closed loop has to be straight. So far so good, but how straight is “straight”? Presumably we agree that an ePTFE vascular stent can be cylindrical. But what about a woven or braided urethral stent made of thin wire? There is not a single straight line to be found anywhere in it. One of those braided stents is surely substantially cylindrical. But is it cylindrical?
Or take a drinking straw. A basic one is cylindrical, of course. But what if it includes along its overall length a short length of corrugated wall material (so that it can be bent over the rim of a cocktail drink container)? Does the presence of the short corrugated portion carry the straw outside the definition of “cylindrical” even while it remains “substantially cylindrical”?
And anyway, is there not case law and a Guidelines paragraph that reminds us all that descriptions are to be construed not by a mathematician but by a person skilled in the art. One can argue that such a reader would, without even thinking about it for a single moment, impute to the word “cylindrical” the meaning “substantially cylindrical”. In that case, I would argue, a claim that recites “substantially cylindrical” is clearer than one which recites, instead, the single word “cylindrical”. Would an EPO Examiner see my point? Or would they shrug and say that following the Guidelines means that all substantially’s have to go!
50 years ago, at the start of my career, my tutor explained that the word “substantially” in a claim is usually superfluous and best avoided. This was because as a general rule courts will construe every “thing” mentioned in the claim in a pragmatic, real world way, namely as the thing “in substance” rather than the thing as defined in a dictionary of mathematics. But in today’s world of creative advocacy, when even the insertion of a metric value can prompt an Opponent to argue that subject matter has been added because the inserted metric value is not expressed at exactly the same level of approximation as the original non-metric unit, can we be so sure that “cylindrical” and “substantially cylindrical” mean the same thing?
I apologize for using the word “patronising”. I agree that there is a lot of poor drafting around. But when I read that proof-reading is the answer, I imagine how hard (and expensive) it is to write a PCT specification that will deliver optimal results for one’s client, all over the world. The Boards of Appeal of the EPO should keep in mind that i) those who write PCT applications are writing for Patent Offices and courts all round the world, not just the EPO and ii) their one single text has to serve for all jurisdictions, not just the EPO.
I just think that if the Boards get it into their heads to set drafting standards peculiar to the EPO, this is not likely to enhance the EPO’s reputation outside Europe for” real world” jurisprudence.
Dear Max Drei,
Let’s continue the discussion, but I still disagree.
When an applicant/proprietor speaks about a cylinder, adding “substantially” to “cylindrical” would, in my opinion not bring anything. This is also the case of a stent, be it a vascular or a urethral stent. In a stent, there is not solid wall which makes out a theoretical cylinder, but to me the stent is in both cases cylindrical as it has to be inserted in a circular body opening. I do not know square body openings, at best elliptical. Adding substantial in this case is useless.
For instance, a cylindrical piston has a solid wall, although the solid wall might show some undulations due to the method of manufacture. I hope you would not, for reasons of manufacturing tolerances, add that a piston has a “substantial” cylindrical shape.
If the drinking straw comprises a short length of corrugated wall material (so that it can be bent over the rim of a cocktail drink container), then you cannot qualify the drinking straw as being plainly or “substantially” cylindrical. Such a bendable straw comprises two cylindrical parts linked by a corrugated portion. Adding “substantially” to cylindrical is not correct as it does not represent the straw as it is.
Whether you like it or not, in such a situation the examiner has no choice but requesting the deletion of “substantially” and adding the corrugated portion between the cylindrical parts of the straw. With such a three parts straw, claiming it to be substantially cylindrical induces an immediate lack of clarity which has to be removed.
Objecting that subject matter has been added because an inserted metric value is not expressed at exactly the same level of approximation as the original non-metric unit, cannot to be taken seriously. The EPO does not require the removal of the original imperial measurement and its replacement by a metric value, but only the insertion of a corresponding metric value. Avoiding added-matter is exactly the reason why the metric measurement is added and does not replace the other measurement.
When I speak about proof-reading this means checking that there are no contradictions, divergences in terminology etc., or missed combinations of embodiments left before filing. Quickly adding at beginning or at the end of the description a boilerplate statement that all embodiments or parts of those can be combined at will, does not avoid a later objection of added matter.
Whether we like it or not, there is no universal way of drafting an application valid for all jurisdictions. The problem has arisen with the PCT, but you cannot claim that the EPO and its board have for this reason to accept any kind of description/types of claims from wherever they come.
The drafting standards might be peculiar to the EPO, but is this not the case for the drafting standards of every jurisdiction? In this respect, in Europe, the EPO has simplified life for applicants/proprietors. It should not be forgotten that the valid drafting standards are given by the EPC and its Implementing Rules, as well as the interpretation of those by the EBA and the BA.
To be blunt, “real world” jurisprudence does not exist. It certainly does not mean adopting US drafting standards and jurisprudence. The big problems do mainly arise with applications stemming from the US and are due to a different drafting philosophy and legal rules on both sides of the Atlantic. Just think of the right to the first inventor vs. to the notion of first to file, the long lasting problems with priority rights from US provisional applications, added-matter and grace period. Continuations and continuations in part are unknown outside the US. The grace period is another oddity of US law, and besides Japan it is unknown everywhere else.
Why should Europe adopt US standards in this matter? Just to make it easier for US companies? They now have the UPC giving them a single entry door in order to attack European patent holders. Isn’t enough?
I certainly do not see why EPO’s reputation outside Europe needs to be enhanced, and certainly not for the sake of ”real world” jurisprudence which does not exist. What you call ”real world” jurisprudence, is just for helping the interests of US applicants. Not everything coming from the other side of the Atlantic is good for Europe.
To be clear, if there is one patronising comment, it is yours when you find that the EPO should go along with “real world” jurisprudence. Everything is not perfect at the EPO and with the jurisprudence of its boards, especially in procedural matters, but it does not deserve such a running down.
OK, Daniel, I think the topic is exhausted. But as to PCT it is my understanding that it lays down drafting standards and the EPC/EPO obeys them. If every jurisdiction were to adhere to PCT drafting requirements that would be useful for Applicants, in helping to eliminate “peculiar” drafting requirements in individual jurisdictions.
That said though, I guess that Americans defend their jurisprudence as being in full compliance with the PCT. It is sometimes amazing, what lawyers will argue.
All lawyers think their jurisdiction is the best and every other one should be modified to fit with it. Joke alert! Isn’t that what German lawyers think about patent law in Europe?
As to grace periods, my understanding of the Big Five patent jurisdictions is that a majority of them offer a grace period. Perhaps that is one reason for the pressure to amend the EPC to include a grace period.
Max Drei,
I do agree that the topic is exhausted, and I must add that my patience and tolerance were wearing thin.
The EPC and the PCT have indeed similar drafting standards. Those are very nice to have, but I doubt that the drafting standards of the PCT provide for inserting “may” in every sentence in the description. I also doubt that the drafting standards provide the insertion of claim-like clauses at the end of the description.
This is a speciality of US applicants. From a rather shoddy provisional, they regularly attempt to blow out something quite different, and then wonder that the priority is not valid according to G 2/98. In view of both PCT Chapters, the EPO will not accept conclusions reached by another ISA or IPEA and will carry out a supplementary search if it has not established the ISR or IPER.
I can accept at face value that Americans defend their jurisprudence as being in full compliance with the PCT, but I fail to be convinced. After 40+ years of filings at the EPO, added matter as practised at the EPO still seems not understood by Americans. Nothing was more irritating as an ED or OD to find, in a reply to a communication, a set of claims with the indication that those claims had been granted in the US, and that the EPO should align.
From the Big Five patent jurisdictions, the US, Japan and Korea have a grace period. China and the EPO do not provide a grace period. The EPO launched a enquiry and published in June 2022 an impact study on “The European patent system and the grace period”. As the introduction of a grace period would need an amendment of the EPC, I cannot see such a move in the near and/or middle future.
According to the impact study, “US companies would be the main users of the grace period (accounting for 44% of all potential requests), whereas legal uncertainty would mostly impact European companies (perceived in 65% of cases)”. I do therefore not think that my children or even my grandchildren will see a grace period in Europe. The “second basket” to be dealt with after the Diplomatic Conference has remained wishful thinking. With such a result of the enquiry, a grace period will also remain wishful thinking.
As far as I remember, when, after Brexit, Boris applied to join some Asia-Pacific Economic Cooperation organisation, the UK asked for a derogation in matters of grace period. As a EPC member state, it cannot accept a grace period without leaving the EPC. I think this endeavour has ended as gloriously as many other Boris’ endeavours.
Mr Hagel,
In reply to your comment of today, I have nothing much to add, as I think the topic is exhausted.
You may think that I used unkind words, and I will leave at this. I maintain that I stated facts. Its your good right to feel displeased, but facts will remain facts.
I am fully aware of the discussions before and after T 56/21. That EDs have gone well beyond what they can do without consulting applicants is not acceptable. I cannot only repeat it once more. The fault is not to be seen exclusively with examiners. They have to leave under a tremendous and ever increasing production pressure, so that the temptation of cutting corners is rather high.
As explained, a referral on the adaptation of the description is to be expected at the end of July. We should thus wait until the referral is going on. I am sure it will attract lots of amicus curiae briefs. The president of the EPO has attempted to bring the adaptation of the description in G 1/24. One member of Delta Patents has even recently send a further note of observations on this topic. I doubt that the EBA will broach the topic of the adaptation of the description in G 1/24.
Last but not least, I must once more observe that you never replied to the precise questions I brought to you. It is your good right not to do so, but I am then allowed to draw clear conclusions from your attitude.
I must therefore come to the conclusion that you are actually acting like a Tibetan prayer mill, repeating your stance, but not answering simple questions, and at the same time taking sentences of the CLBA out of their context. If something is dishonest, it is exactly your way of quoting the CLBA out of context.
Daniel, your provocative posting of May 28, today, deserves a reply, but I will hold myself back, because we have both agreed that the topic is exhausted. Instead, I look forward to your further case reports, enormously valuable and stimulating, so we can resume discussion in other threads.
Dear Max Drei,
I agree that my comment of May 28th was provocative, and my aim was indeed to stop the present thread. On the other hand, you know ways of communication which could enable you to give a reply without involving other people.