For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Friday, 4 April 2014

Never mind the detergent -- patents can also dissolve: an update on Unilever/P&G's Ariel warfare

Back at the beginning of last month, this weblog hosted a guest piece, "Unilever's Ariel assault on P&G: a victory/defeat in the Netherlands", by Denise Verdoold and Maarten Rijks (both of Dutch law firm Banning NV, The Netherlands), which attracted no little attention. Since then there have been further developments, on which the Kats are grateful to have been updated by Lucy Samuels (Gill Jennings & Every LLP, London). Lucy writes:

This state-of-the-art machine can be used for
wringing the last drop of validity from patents
 
On 2 March, the IPKat reported on Unilever’s “laundry detergent war” against P&G in the Netherlands. As Procter & Gamble’s representative for the EPO strand of this case, I can provide an update. The IPKat piece finished (under the heading “The Sequel”) with a report, apparently originating from the Financieel Dagblad, that Unilever had withdrawn from the European opposition proceedings. In fact, that was incorrect and Unilever continued to defend the patent throughout – right up to the EPO appeal hearing that took place on Wednesday last week.

Instead, the event that caused a pause in the Dutch proceedings was that the EPO’s Technical Board of Appeal issued a preliminary opinion that the patent lacked an inventive step.  That brought into doubt the Dutch court’s conclusion, in awarding the preliminary injunction, that there was no serious, non-negligible chance that the patent would be revoked.

In spite of some further arguments from Unilever in response to the preliminary opinion, the patent was eventually revoked at the EPO hearing (actually on the basis that the claims lacked basis in the original parent application, rather than for lack of inventive step). That brings to an end the litigation not only in the Netherlands but also in France and the UK, where Unilever had also brought infringement proceedings.

This is a good outcome for Procter & Gamble. But on a more general level I think it is a good reminder of the power of an EPO opposition to bring an abrupt end to the uncertainty and expense of patent litigation across Europe. It highlights the fact that the EPO’s Boards are not afraid to take the robust decision, however high the stakes. 

A blog that gives you
plenty to digest ...
It is also an example of quite a common outcome of the European patent opposition procedure. Those of us who deal with the EPO’s Opposition Divisions and Boards of Appeal on a regular basis are well aware that maintenance of a patent by an Opposition Division is not necessarily a reliable indicator of whether the patent will survive an appeal. On the issue of added subject-matter in particular, our experience is that the Boards can be much less forgiving than Opposition Divisions. This appears to be borne out by the statistics too. An interesting post on the K’s Law blog some time ago (here, at para 5.1) showed, albeit from a relatively small sample, that even when an opposition had been rejected initially, only 42% of cases were maintained unamended on appeal. Strangely, the most common outcome, after rejection of the opposition by the Opposition Division, was revocation of the patent. This should perhaps act as a warning to patentees to assess rigorously the prospects of success at the EPO appeal stage rather than proceeding with infringement action directly after maintenance by the Opposition Division.
Thanks so much Lucy, says the IPKat. It's good to receive this update, together with the added-value warning about rigorous assessment of the prospects of success before the EPO -- but would this advice, which looks pretty sage from the stand-point of a patent attorney, be corroborated by a solicitor born and bred in the tough environment of patent infringement litigation and who, be fiercely driven by an anxious client with pan-European commercial interests, might prefer to make short-term considerations paramount?

Merpel is just pleased to see that, for once, a blog post that contains the words "EPO", "robust decision" and "however high the stakes" has nothing to do with industrial action ...

30 comments:

Suleman said...

On added matter there's a feeling that decisions T667/08 and T2619/11 will make the EPO more lenient as they are now required to look at the application in its entirety, and not just at the literal wording. The EPO Guidelines have been changed as a result to make it clear that implicit features should be taken into account when judging added matter, but it may take the Boards of Appeal a little while to change their practice as a result.

Anonymous said...

From an american perspective (ugly or otherwise), the nit-picky verbatim tendencies of EP prosecution has always appeared to be a royal pain.

Yes, I do get that the EP must operate as it does in multiple languages (the US system shows the abundant issues with just a single language), but to drive so hard on literal meaning when words themselves are never perfect tools for capturing an invention in the first instance seems to punish inventors for the benefit of the examiner. I do not mean to imply that making examination more difficult should be an aim - but it should most definitely not be an aim to hurt the innovator just to make the examiner's job easier. Innovation by its very nature does not support a mindset of sticking to what makes the examiner's life easier - thus the system to be put in place should reflect this nature, not hamper it.

~ anon

Roufousse T. Fairfly said...

Aha! My prediction was correct after all. ;-)

Thanks for the update. I received an automatic alert from the Register yesterday, but the documents were not yet online as of today.

I can't wait to know how the OP went...

Was it over before lunch, like in one of the related '473 case which was decided by a different board a few weeks ago? And with which weapon did the Board finish off the patent?

For the strange report, the FD indicated a "spokesman" as the source. If you can't trust corporate PR flaks anymore, then whom can you trust?

Anonymous said...

"From an american perspective (ugly or otherwise), the nit-picky verbatim tendencies of EP prosecution has always appeared to be a royal pain."

Fair enough (and I agree that some EPO examiners could benefit from a reality check) but from a European perspective the USPTO's anything-goes approach to amendments is also rather strange.

Mind you, in the US the real fun and games start with the claim construction in litigation...

MaxDrei said...

May I take this opportunity for a rant about how Art 123(2) is discussed in the most recent Edition of the DG3 White Book of caselaw. I see it as an outrage, a high water mark of absurdity, in that it touts the "beyond the slightest doubt" test of what is "directly and unambiguously derivable", under 123(2) but not under Art 54 or 87. No wonder Americans are perplexed.

Look at the DG3 Decisions from long ago, on which the "not the slightest doubt" are founded. One is concerned not with 123(2) but with 123(3). The other is worried about how much weight to give witness evidence, untested by x-exam, proffered in an Affidavit. It concludes that the tribunal needs to be sure beyond doubt, before basing its decision on ther content of the affidavit. Fair enough, I would say, but no basis for an all-embracing "slightest doubt" standard whenever any question under 123(2) arises. Can't we have the same "preponderance" standard governing "directly and unambiguously derivable" irrespective whether it under Art 54, 87 or 123(29? Please.

Anonymous said...

"anything goes" is technically not correct.

Yes, we do have a no-new-matter rule.

As to how it is applied....(well, we are not here to bash the p1sspoor examination, are we?)

Anonymous said...

...and seeing how less than (far less) 2% of all active patents ever see litigation,...

well, I would say that the 'fun' is way overrated.

(I think I saw an estimate at below .05% given the number of possible live patents out there at any one time)

Anonymous said...

Not to alarm or chase any felines away...

The minuscule numbers indicate that litigation is the lucrative tail that wags the patent prosecution dog.

Roufousse T. Fairfly said...

Dearest Max,

I see it as an outrage, a high water mark of absurdity, in that it touts the "beyond the slightest doubt" test of what is "directly and unambiguously derivable", under 123(2) but not under Art 54 or 87.

I'm a bit surprised by this comment, knowing how often you advocate the EPC way of doing things on this and other blogs.

But what's new?

The literal expression "slightest doubt" is mentioned thrice in the 2010 Case Law book -- you do know that as a (former) examiner, I'm in the habit of looking for things literally, especially when the applicant does not provide the basis for his assertions. ;-)

The 2013 edition mentions one further time the expression, in the introduction of section II.E.5:

It further must be taken into account, as indicated in the decision T383/88 of 1 December 1992 (point 2.2.2 of the Reasons), that the slightest doubt as to the derivability of the amendment from the unamended document would rule out the amendment.

I suppose that this is the passage that got your goat.

I also gather from your outburst that you probably looked up T383/88.

The board was perfectly forthright in deciding that a different standard should apply depending on issue under consideration, and explained its position:

In decision T 113/86 this Board considered that amendments requested by the Patentee should not be allowed if there was the slightest doubt that the unamended patent could be construed differently to the patent as amended (cf. paragraph 2.2 of the Reasons).

This clearly means that the normal standard of proof in civil proceedings such as appeals before the Boards of Appeal, namely "the balance of probability", is inappropriate. Instead, a rigorous standard, i.e. one equivalent to "beyond reasonable doubt" is considered by the Board as being the right one to apply in such a case, for applying a lower standard could easily lead to undetected abuse by allowing amendments on the basis of ostensibly proven common general knowledge.

Now it is frequently argued that certain technical features can be directly and unabmiguously derived from a specification as filed by reading it in the light of common general knowledge. However, this approach should be viewed with considerable caution, for common general knowledge is notoriously difficult to prove, even when all the various types of evidence permitted under Article 117 EPC are taken into consideration [...]. The difficulty lies mostly in gauging the degree of commonality, for whilst information may be generally disseminated, and therefore known within the community of skilled addressees, it may well, at the same time, not be commonly accepted. In other words, there may be differing views on the truth or falsity of the information and no less so if these views are expressed in standard textbooks. Nor can too much reliance be placed on affidavit evidence from over-qualified persons, for the relevant knowledge is that of the notional, i.e. average skilled addressee, and not that commanded by leaders in the relevant scientific discipline or field.


This decision has been around for more than 20 years, and was referred to by dozens of more recent ones. Why the fuss? The "white" book isn't the case law itself, but a mere compendium. It's maybe about time someone noticed it.

ps: In my previous comment, I referred to the "patent", but what I was: how were the late requests disposed of? The patent died of added-subject-matter poisoning.

Anonymous said...

"EPO" and "robust decision" in the same sentence? Time for my next eye check.

The majority of added-matter problems are of the applicant's own making.

You are entitield to a monopoly for what you disclose to the public at the filing date. Get over it!

Anonymous said...

Hmm, what to make of this:

"you do know that as a (former) examiner,"

You are either a former examiner or you are not. There is not in-between.

Since you have created considerable doubt, I am left with no other choice but to reject your entire statement as a whole.

;-)

Anonymous said...

I think Roufousse T. Fairfly hits on a very delicate distinction that creates considerable consternation for many practicing practitioners particularly (non) parochially.

The concept of non-obviousness needs a brighter spotlight. Any doubt concerning the scope of the invention reflected in the language chosen (and the flexibility of language) is inexplicably intertwined with determining whose view that language must be understood by.

The question is begged: Who is PHOSITA and what is PHOSITA capable of without more?

A strict automaton of the EP vintage?

An ordinary person capable of ordinary insight and common sense of the US vintage?

An ordinary person capable of ordinary invention (of the hyper US Supreme Court subtle re-introduction of a Flash of Genius) vintage?

In the US, 101 continues to be a lightning rod of debate, and to a very certain degree, the lightening strike spreads its charge immediately to 103, the attachment created by Congress in order to quell an over-ambitious Court and that Court's aggressive views on 'invention.'

To this trained and battle-hardened eye, the debate across the different aspects of patent law are all related to the larger question: where to draw the line for what we (the royal we) will allow patent consideration to be applied.

No rules can work when the rules fail at the boundaries. Not finer rules such as enabled (to what degree of additional experimentation?), explicitness (to what degree a penumbra is allowed, given that language by its own nature is simply not precise enough), and not more coarse rules such as the seemingly easy question of what topics to include (if we do not define 'technical,' how do we know what is not 'technical?').

The nature of innovation is what dictates the answer: we do not know what is next.

Since patents are for limited times, the sage step would be to err on the side of pro-patent. Any misstep on that side will at most 'retard progess' for a limited time. To err in the other direction would be to risk foreclosing even the start of the innovation effort, and such a chill may negate ever obtaining the fruit of innovation.

When one takes the larger and longer view, when one takes a more encompassing perspective, Fear, Uncertainty, and Doubt of those warning against patents can be seen to be counter-productive to innovation, and itself stifling (the term FUD is apropos).

To use an analogy, it is a poor choice to make over the concern of someone hoarding the fruits of a tree to decide to not allow any planting of the seeds for that tree in the first instance.

MaxDrei said...

Dear Roufousse, this is in reply to yours of yesterday, April 7. I thank you for your useful mail.

You wonder why I am outraged, given my general advocacy of the EPO way. You shouldn't wonder. It is precisely because I like the EPO way so much that I get upset when it gets things wrong and goes walkabout. What that does is to encourage the BGH to go its own sweet way, contradicting the EPO caselaw, comfortable in the knowledge that DG3 is crackers. Do we want the BGH treating DG3 with disrespect? I don't.

You do me the service of highlighting the two Decisions from long ago which prompted the wrong turn. Have a look at them again, after reading what follows.

T 113/86 (86!) was looking at an Art123(3) issue. It thought that the prohibition on widening the scope of protection post-issue was absolute. The public had to be protected at all cost from such extensions of scope. OK. Fair enough.

Next, T 383/88 was looking at the contents of an Affidavit. In other words, the party presenting that evidence was asking the Board to base its Decision on what its own declarant was asserting. Why was an Affidavit needed? To over-rule the Board's own view of the common general knowledge in the technical field. Is it reasonable for a Board to surrender its own firm view and instead to trust absolutely what a single declarant, paid by his master, asserts in the Affidavit, when there has been no evidence in reply, and no cross-examination of the declarant?

Hardly surprising then, that the Board baulked, taking refuge in the formula "not the slightest doubt" when it came to the Content of the Affidavit, to avoid having to base its Decision on the untested contents of the Affidavit.

I have no complaint about those two Decisions. My objection is that they have been taken ever since as an unassailable basis for setting the "beyond the slightest doubt" standard for EVERY question under Art 123(2) yet NOT for any question under Art 87 or 54 EPC. There is no logical basis for doing so. The good Rule is that what any one given document "discloses" falls to be decided by the same test namely "clearly and unambiguously derivable" (measured according to the true and trusty civil law standard of "the balance of probability" or the "preponderance of evidence"). To do otherwise, and subject 123(2) questions to a different and unreasonable standard makes the EPO, in the eyes of the non-European world, ridiculous. That's very bad news for the EPO.

Further, this disconformity strengthens the hand of those within Europe who wish to ignore the caselaw of the EPO as flawed and unhelpful.

Bear in mind that Affidavits are different from documents written before the priority date. The former are prompted by the case, and sculpted to win the case. The latter are written long before the case ever was conceived so cannot have been writen for the purpose of winning the case. Now do you see why, in the case of Affidavits, you need to be more cautious about basing your Decision on their content, than on the content of documents written no later than the filing date of the claim in suit? Nothing wrong with a special rule for Affidavit evidence. Everything wrong with one rule for arguing Art 123(2) and a different rule for arguing about what docs disclose for the purposes of Art 87 or 54.

This is why I am outraged. Does that help? Can you better understand my position now? Your turn now.

Anonymous said...

MaxDrei @ 13:05,

Placing so much power over your emotions with a government agency sounds like a recipe for disaster.

Roufousse T. Fairfly said...

Max,

I unfortunately can't develop a long answer for the time being, as I'm up to my head in cartons and I'll be offline for a while. Sorry!

In a nutshell: I don't feel that things aren't as bad or inconsistent as you portray them.

There are perhaps no decisions on novelty and priority demanding the "slightest doubt" criterion because there was never much of a dispute about this? But how different is SD from "directly and unambiguously derivable"?

I have only done so many cases, but I can assure you that it was agony when I had to decide whether a 54(3) doc. was novelty destroying or not, especially if some of the features recited in the claim were non-technical or ambiguous. If there is so much as a comma missing you can throw the document away.

In the case of a 54(2) document you still can fall back on inventive step to address features not present in the prior art, or if have doubts about the meaning of your document.

I would like to see at least one concrete example where your "slightest doubt" criterion - or lack thereof - played a role in assessing compliance with Art. 52, 54, 83, and/or 87.

You do acknowledge that a prior art document is not the same as an amendment, where in the latter case the applicant seeks to obtain a posteriori as much coverage as he can get away with. When the prior art cited by the examiner is too good, then the applicant has a difficult time circumventing it while trying to keep a useful scope of the claim. This is not the office's fault.

In the present case, the decision was based on added subject-matter, but it could just as well been based on novelty and inventive step if the initial hurdle of Art. 123(2) been surmounted. But the situation was very unpromising, and I don't think that "slightest doubt" played much of a role here.

mfG,

R.

Roufousse T. Fairfly said...

Dear anonymous,

Since patents are for limited times, the sage step would be to err on the side of pro-patent. Any misstep on that side will at most 'retard progress' for a limited time.

And just for a "limited time" the proprietor will reap undeserved economic rent from his little toll booth...

To my ears, your suggestion sounds like a call for downgrading examination to the level of registration. Why then stop at added subject-matter? How about scrapping novelty, inventive step, and disclosure? Let's dish out monopolies, and let the "market" decide for itself?

To err in the other direction would be to risk foreclosing even the start of the innovation effort, and such a chill may negate ever obtaining the fruit of innovation.

After so many years I have a slightly jaded view of "progress", "innovation" and all that jazz. Patents are a game humans play.

Roufousse T. Fairfly said...

Since you have created considerable doubt, I am left with no other choice but to reject your entire statement as a whole.

That'll teach me making clarity objections. ;-)

MaxDrei said...

About the "slightest doubt" criterion for admissibility under Art 123(2) EPC, Roufousse above suggests that it is all a storm in a teacup because there is no difference between CUD "clearly and unambiguously derivable" and SD "not the slightest doubt". In his own words, he asks me:

"how different is SD from "directly and unambiguously derivable"?"

I will tell him. Go to one of the "Examination Matters" workshops, and listen to what DG1 lecturers there are currently teaching patent attorneys. For them at least, SD conveys a message from DG3 which is not conveyed when it Comes to Art 54(3) or Art 87 EPC. And what they teach is what the EPO does, all through DG1, especially the youngsters and inexperienced newbies in DG1, every day of the week. It matters.

And, as you say, there ought to be no difference between SD and CUD.

As I say, can we not reserve SD for special situations, like how much evidential weight to give to a contemporaneously prepared Affidavit. For the general question under Art 123(2) chew on the CUD and set aside any thoughts of the troublesome SD test.

How long before the bad "established caselaw" of DG3 changes? Till the end of time, I shouldn't wonder. It ain't right and it does no credit to DG3.

Anonymous said...

Roufousse,

Apparently your state of being jaded causes you to miss the point of the comment on limited times.

Your reply of "And just for a "limited time" the proprietor will reap undeserved economic rent from his little toll booth... indicates that the tiny fear of some level of "undeserved" rent justifies negating the entire prospect of innovation.

You do indeed have little faith. The fear of "rent" justifying "NO" misses the point that patents promote progress in several ways. One of those ways is through the sense of reward for the inventor. Nominally this reward is purely a negative right and it is market conditions that set any positive level of cash flow. But the other way of promotion is the way that you would simply shut down. To capture that other way, simply contemplate the pithy maxim: Necessity is the mother of invention.

There are always alternative to patented items and methods. There is always the alternative to the public to simply NOT use the patented item or method if that item or method happens to slide into some grey zone of "unjustified rent." And whatever small inconvenience this may be is expressly that way for a limited time.

Patents work best (the reason for even having patents in the first place) when both a carrot and a stick are used.

Anonymous said...

"There are always alternative to patented items and methods."

Not if patent offices grant patents on everything known or obvious or patentable only at the date of filing but added at a later date to suit the patentee.

Today, I shall file my patent application to the wheel. I wish you the best of luck on your cycle, car, bus or train ride to work. And you can forget about using the horse, goat or elephant, because I have the 'product of a gene replication process claim' due to grant.

I don't have anything in the pipeline for 'hopping' so you are good to go with that one.

Anonymous said...

That'll teach me making clarity objections. ;-)

Roufousse, the single fact that you've taken a difficulty to write this comment today makes you to my personal follower. Clearly, the one who put "dislike".

That is perfectly OK with me, since I seek the "likes" only from the big (wo)men of this (IP) world.

Anonymous said...

Anonymous @ 14:47,

Your clear over-reaction only proves the point that something in the grey zone would be ok.

Do you even realize that your comment was not even close to be pertaining to that grey zone?

Anonymous said...

I don't see "unjustified rent" falling within any grey zone. You wish to give the benefit to the patentee, which means in cases of doubt they can have an undeserved monopoly. Patentees get plenty of benefit for their contribution already. Nice broad claims for concepts based on possibly only a single example. I obtain commercially valuable monopolies for clients and most issues I come across come down to weak applications. I find third party patents more of a problem as many should never have been granted and would not have been had the EPO did its job properly.

In summary: Patentees have extensive monopolies in the 'grey zone'.

'over reaction' in bold? That appears an over-reaction to me.

MaxDrei said...

I like that last comment from an anon at 23:07 yesterday. I agree, that a balance must be struck between fair protection for deserving inventors and, for the public under the cosh of issued patents, reasonable legal certainty. Three cheers for the good sense of the Art 69 EPC Protocol.

But that is why the EPO denies admission to any prosecution amendments that tries to insert any matter that is not "clearly and unambiguously derivable" from the appln as filed. Tough test, and by now so well-established that most everybody knows where they stand with it.

Not so with the DG3's unreasonable and unnecessary gloss on it, that the amendment has to raise "not the slightest doubt". The thing about mere words is that there is always room for finite non-zero doubt about meaning. So the "beyond any doubt" standard fosters legal uncertainty.

To those who tell inventors that it is all their own fault, because they failed to draft their patent applications to a high enough standard, I say this. No matter how good the drafting is, it can't take account of the entire universe of prior art. It is when during prosecution some new art reference, unpublished or unretrieved at the filing date of the claim comes to light, that the amendment torture begins, and the responsibility of the Office begins, to balance reasonable certainty with protection for the inventor's meritorious contribution to the art that is "fair". Those who decry the drafters should try it sometime.

Anonymous said...

I decry the drafters and I draft a lot. As I said above, "most issues I come across come down to weak applications".

The word 'most' is an important feature of this claim. If it is inventors drafting their own application, then I would expect 'most' of the to have problems. If it was a competent patent attorney, I would expect my first comment to apply.

'Most' applications are subect to a search of the priority application, prior to foreign/PCT filing, which will pick up most prior art likely to cause amendment problems. All found at a time when you can re-draft to your hearts content. The EPO kindly allows disclaimers to cover 54(3) documents identified later.

We have all had tough cases were finding basis for a limitation over art not considered when drafting is a real challenge, which is where the plethora of fallbacks comes in. And yes, I know we can't cover every eventuality. US-origin patent filings suffer more than most, because have more options for amendment and so tend not to plan for EPO scrutiny as much as they probably should.

BUT, the EPO gives much more benefit to patentees when looking at novelty than the US does (selection from lists"! what's that all about, really???) so swings and roundabouts.

And finally, drafters are not necessarily all great, so like pilots, many crashes are their own fault.

MaxDrei said...

So, anonymous, do we agree then, that "directly and unambiguously derivable" is OK, and it is right that it should be the same test whether for Art 54 or 87 or 123(2)?

Anonymous said...

I agree. I understand there was some meeting recently between the EPO examiners and users where the point was raised. Possibly reported on this blog.

Anonymous said...

I love a phrase like "fair" is used.

What is "fair?"

Is exact language "fair?" Why not? the applicant after all has total control over the language used.

But language, it is said, "The thing about mere words is that there is always room for finite non-zero doubt about meaning." SO we need to allow for this ambiguity by being less strict? That seems to only invite more wiggle room - no wonder the amendment torture begins.

The answer to this question of "fair?" Be "reasonable."

Another joke of the same color.

And then to turn around and say "by now so well-established that most everybody knows where they stand with it." Utter Nonsense. If that were true, then no amendments whatsoever would be needed. Ever. Not for any new art discovered during prosecution, because the drafter already knew where they stood and used the words that allowed that "reasonable" level of understanding already.

Wait, did you want something different? Did you want to be able to change what you said?

Is that reasonable? Did you not already know what was reasonable? Or is reasonable always sliding, always possible to slide no undiscovered art. If we apply this logic, it would be "fair" to allow amendments throughout the life of the patent, even after grant. That would meet this notion of "balance reasonable certainty with protection for the inventor's meritorious contribution to the art that is "fair"."

After all, it is well known what is "reasonable" and "fair," right?

(what is the emoticon for scornful disdain for depending on tautologies when discussing language?)

Anonymous said...

Maxdrei

There is a possible justification in, before grant, having a different approach for article 123; which is that amendments which add matter may not be fixable post grant through a subsequent amendment to remove that added matter since the scope of protection can't be extended post grant, whereas if a claim is too broad from a novelty point of view then it can be narrowed later.

MaxDrei said...

I loved the last anonymous comment, scrabbling around for a justification of the "not the slightest doubt" standard reserved exclusively for Art 123(2) EPC. The justification alighted upon is that the EPO has a duty to save Inventors from the incompetent behaviour of their patent attorneys, who will otherwise persist in unwisely amending the independent claim during prosecution so that their clients fall, after issue, into the Art 123(2)/(3) fatal trap.

How big-hearted of the EPO, I must say. Trouble is, it doesn't fit easily with all those wagging fingers within DG§, that Applicant is entirely responsible for checking the safety of each prosecution amendment, notably those suggested by the First Member of the Examining Division.

Sorry, but to me it looks like a justification coming from somewhere inside DG3, that nobody ever thought of before, a forlorn attempt to defend the indefensible.

Thanks for playing though. Your turn now.

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