tag:blogger.com,1999:blog-5574479.post2938647333638793550..comments2024-03-28T16:45:51.051+00:00Comments on The IPKat: CFI ducks patent challenge, dismisses Lego appealVerónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-5574479.post-90093954575028545412008-11-13T15:26:00.001+00:002008-11-13T15:26:00.001+00:00Nit picking at the nit picking from Anonymous 10:5...Nit picking at the nit picking from Anonymous 10:58am:<BR/><BR/>1. Since when has "European" when used in the UK only means continental European? I am proud to simultaneously be English, British and European (plus many things besides).<BR/><BR/>2. I might be wrong, but isn't the legal services act, when in force, going to specify that the term "lawyer" explicitly covers patent attorneys? If so, perhaps Jeremy can be forgiven for using the term European Patent Lawyer on the grounds he is not so much wrong as a bit early?<BR/><BR/>Was going to comment on the substance of the original blog post, but surely bickering over insubtantial details is really what blogs are for?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-68956186054622257792008-11-13T13:41:00.000+00:002008-11-13T13:41:00.000+00:00Jeremy, I was hoping you would write something lik...Jeremy, I was hoping you would write something like that. The EPO deals with obviousness in about 30 minutes, after working through all other validity issues. No headache on obviousness there then, and yet the English litigation community gets the collywobbles anyway, perhaps because the billable hours are so small. Now we're on "technical", rather than "obvious" and, once again, the English litigation community throws a wobbly because Mr Steinbrener seems to be getting through Art 52 like a dose of salts. The headache for England is that things are all so simple, cheap and predictable at the EPO (except for the unavoidable, and so acceptable, deeply interesting "puzzle at the margin" of what's patent-eligible). You will remember (I can't) the name of the very old English case that pronounced that a puzzle at the margin is not a sufficient reason to pronounce a patent claim bad. You would think that those who criticize LJJ Rix and Pill for over-ruling Robin Jacob on the need for discovery in patent actions (because of a worry that it makes English patent litigation unnecessarily expensive) ought to be grateful to the EPO for reducing Art 52 "technical" and Art 56 "PSA" to such headache-free simplicity. How many of the obviousness factors on your list gave Lord Hoffmann a headache in the Taxol-eluting Angiotech/Conor case? I think on the quiet he's a student of EPO PSA. Why can't some very brave QC try pleading obviousness in the EPO PSA manner, up in front of an English judge? He might actually win the case for his client, with that line.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-3278017367940444322008-11-13T11:39:00.000+00:002008-11-13T11:39:00.000+00:00Dear anonymous,I concede that no-one seriously sug...Dear anonymous,<BR/>I concede that no-one seriously suggests that the word "obvious" is out of place as a touchstone of patentability. This doesn't mean that it doesn't give people substantial headaches, not least because (i) the judges find a need to keep reformulating "obvious" in terms that seek to imbue this manifestly subjective concept with layers of pseudo-objectivity and (ii) because, even once you have a (temporarily, it seems) agreed legal formula for what is obvious, there then follows a grand fight as to whether a disputed claim is obvious in the light of expert evidence, commonsense, general knowledge, normal lab practice, commercial success, hindsight, prejudice among those skilled in the art, not to mention what the Patents Court trial judges and their appellate Lords and Masters had for breakfast. Now that's what I'd call a headache -- at least if I were a litigant who had to pick up the tab.<BR/><BR/>At least we agree on one thing -- this is indeed what blogs are for! Thanks for taking the time and trouble to give us your thoughts.Jeremyhttps://www.blogger.com/profile/01123244020588707776noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-87975556416245992632008-11-13T11:27:00.000+00:002008-11-13T11:27:00.000+00:00Well Jeremy, a lot of people spend a lot of time a...Well Jeremy, a lot of people spend a lot of time arguing what is or is not obvious, but nobody suggests that the word "obvious" is out of place as a touchstone of patentability. Can't myself see why "technical" can't stand alongside "obvious". The US has "useful arts" and one of the Bilski dissenters construes "useful arts" as "technical". There might be a lot of argument, where you're sitting, what "technical" means. Where I am, there is a level of intelligent and constructive clarifying argument at TBA level that's appropriate to its crucial importance as a boundary line of patent eligibility. Hasn't your colleague David Pearce recently concluded that the Brimelow referral is built on sand? Sorry that I came across as irritated but, frankly, that's what I am. Never mind. That's what blogs are for, no?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-9038265690295222272008-11-13T11:14:00.000+00:002008-11-13T11:14:00.000+00:00Dear anonymous,From the irritable manner of your c...Dear anonymous,<BR/>From the irritable manner of your comment and the nit-picking nature of your content, I would infer that you are a UK-qualified patent attorney who got out of the wrong side of bed this morning. <BR/><BR/>The adjective "European" was intended to qualify "lawyer", a term that I use as a generalisation which embraces all those whose activities embrace the law -- whether as solicitors, barristers, patent attorneys, academics or paralegals. <BR/><BR/>The word "headache" is used metaphorically and does not describe a physical malaise.<BR/><BR/>If "technical solution" is a panacea rather than a headache, (i) why do so many people argue as to what, precisely, it means and (ii) why doesn't everyone instantly and happily perceive, in each computer software or business method related patent application, those elements that constitute a technical solution and those that do not?Jeremyhttps://www.blogger.com/profile/01123244020588707776noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-28523495477831938912008-11-13T10:58:00.000+00:002008-11-13T10:58:00.000+00:00Jeremy may I ask, who are these "European patent l...Jeremy may I ask, who are these "European patent lawyers" you imagine to be suffering a 40 year long continuous "huge headache"? Do you mean the small number of UK lawyers with an interest in "European" patents, or do you mean UK-based European patent attorneys? Not sure such persons would feel comfortable to be announced as "European patent lawyers" given that, in the UK, "European" usually means "mainland European" and lawyer means solicitor or barrister. Frankly, I doubt there are any real "European patent lawyers" that have ever suffered a huge headache because of the presence in the EPC and its Regs of the word "technical". Now wot I fink is that "technical" is actually the cure for a lot of headaches just at the moment, at the CAFC and SCOTUS.Anonymousnoreply@blogger.com