tag:blogger.com,1999:blog-5574479.post6180431461025510440..comments2024-03-29T10:54:23.099+00:00Comments on The IPKat: Lessons in legal fudge from the EBA in Pepper (G3/19)Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-5574479.post-59146030919095174842020-05-25T08:59:40.168+01:002020-05-25T08:59:40.168+01:00In another place MaxDrei wrote:
"So let’s zoo...In another place MaxDrei wrote:<br />"So let’s zoom in on the notion of the separation of powers between the legislative, judicative and executive branches of government. The EPC’s EPO is not the legislative branch. It should confine itself to the other two pillars of the Rule of Law, right?"<br /><br />The problem arises is that the AC can only amend A53(b) under A33(1)(b) by a unanimous vote, which is not required for a rule change. If the AC by means of a change of the rules is also empowered to amend the articles, this is contradictory to the wishes of the contracting states as expressed by the EPC.Kantnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-12134132619993280152020-05-24T10:19:40.261+01:002020-05-24T10:19:40.261+01:00It is not uncommon that the composition of a board...It is not uncommon that the composition of a board changes, and reasons are never given.<br /><br />To my knowledge there is no legal provision requesting the change to be announced. The RPEBA are silent on this point. It is however recorded in the public part of the file. <br /><br />I would thus not over interpret the change of composition of the EBA in G 3/19.<br /><br />Should I have been a member of the BA, I would however not have liked to see my name associated with the EBA taking such a disputable decision. <br /><br />In the present case, it is not being over adventurous to think that the decision is mainly that of the president of the boards of appeal and of the rapporteur. <br /><br />Thanks to its “dynamic” interpretation, not only the perception of the independence of the boards is passé, but the independence as such. And this is not good news. <br /><br />What if tomorrow the UPC (should it ever come into working) takes a decision which is at odds with that of the EBA? Will the EBA then also adopt a dynamic interpretation of its case law? Heavens forbid! <br /><br />Techrights and zoobab: FINGERS OFF!!!<br />Attentive Observernoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-6219338185174360872020-05-21T14:49:19.552+01:002020-05-21T14:49:19.552+01:00Has anyone else noticed that, for G 3/19, the comp...Has anyone else noticed that, for G 3/19, the composition of the EBA changed between May 2019 and May 2020? H. Rothe (legally qualified) and W. Sieber (technically qualified) were replaced with A. Galgo Peco and P. Gryczka.<br /><br />Unless I missed something, this change was not announced. Perhaps this has something to do with the fact that the "procedural documents" link for G 3/19 has not worked for many months now.Mike Snoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-540001807520440502020-05-19T19:23:04.741+01:002020-05-19T19:23:04.741+01:00I believe the EBA may have overlooked Article 3 of...I believe the EBA may have overlooked Article 3 of the "Decision of the Administrative Council of 29 June 2017 amending Rules 27 and 28 of the Implementing Regulations to the European Patent Convention (CA/D 6/17)", which introduced Rule 28(2) EPC. Article 3 states:<br /><br />"This decision shall enter into force on 1 July 2017. Rules 27 and 28 EPC as amended by Articles 1 and 2 of this decision shall apply to European patent applications filed on or after this date, as well as to European patent applications and European patents pending at that time."<br /><br />Hence, Rule 28(2) EPC was introduced with RETROACTIVE effect, including for those pending applications otherwise relying on G 2/12 as laying out the law. I therefore think that the argument for admissibility of G 3/19, namely that T 1063/18 did not interpret the law dynamically and therefore is conflicting with earlier decisions does not hold. Rule 28(2) as introduced by the AC was not introduced dynamically in the sense used by the EBA and the Board in T 1063/18 correctly found that a conflict existed between Rule 28(2) and G 2/12.<br /><br />One could even ask if the EBA has now overstepped its bounds by declaring Article 3 of the AC's decision void...Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-87639601799108581772020-05-19T18:17:34.891+01:002020-05-19T18:17:34.891+01:00I am sure this is a stupid question, but can anyon...I am sure this is a stupid question, but can anyone tell me why the EBoA didn't say "this doesn't apply to patents/applications with a filing/priority date before 1 July 2017". The wording, which refers to grant dates, makes no sense to me. What does this mean for a patent granted on 2 July 2017?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-74413729326186322552020-05-19T16:48:32.742+01:002020-05-19T16:48:32.742+01:00Thanks to Rose for her brilliant analysis of G 3/1...Thanks to Rose for her brilliant analysis of G 3/19. <br /><br />I have not yet seen one comment approving the way the EBA has dealt with the questions referred to it by the president. All commenters are surprised to say the least. <br /><br />As I said before, I cannot imagine the CJEU rewriting a prejudicial question referred to it in order to give a politically correct reply wished by the commission or a group of member states.<br /><br />As correctly pointed out, there were mechanisms at hand in order to render decisions G 2/13 and G 3/13 moot. Was it necessary for the EBA to eat its hat in order to please the AC and the president? <br /><br />Following the argumentation of the president, the EBA took T 272/95 in order to come to the conclusion that there was divergent case law. The problem is that it is not possible to find any reference to Art 53(b) in this decision. There is only ever question of Art 53(a)! <br /><br />The EBA gave lots of reasons why it should not change its interpretation of Art 53(c), but eventually came to the conclusion wished by the AC and the president. Where is the coherence one would expect from a body such as the EBA? That the EBA can change its case law is not disputed. The way it did is more than problematic. <br /><br />Through the reforms of 2016, the AC has been given a strong lever in order to obtain what it wants from the EBA: should you do not agree with our view, you can forget being re-appointed. I do not call this respecting the separation of powers. <br /><br />In G 6/95 the EBA had the guts to resist the AC when it amended R 71a(1) EPC1973. It decided that the amended rule did not apply to the boards of appeal. In G 6/95 the EBA decided that “the boards of appeal continue to have a discretion as to whether or not to send a communication when a summons to oral proceedings is issued”. Only the RPBA2020 has rendered this decision moot. <br /><br />Times have changed, now the users of the EPO will have to cope with a “dynamic” interpretation of legal provisions by the EBA! <br /><br />Thanks to Rose for her brilliant analysis of G 3/19. <br /><br />I have not yet seen one comment approving the way the EBA has dealt with the questions referred to it by the president. All commenters are surprised to say the least. <br /><br />As I said before, I cannot imagine the CJEU rewriting a prejudicial question referred to it in order to give a politically correct reply wished by the commission or a group of member states.<br /><br />As correctly pointed out, there were mechanisms at hand in order to render decisions G 2/13 and G 3/13 moot. Was it necessary for the EBA to eat its hat in order to please the AC and the president? <br /><br />Following the argumentation of the president, the EBA took T 272/95 in order to come to the conclusion that there was divergent case law. The problem is that it is not possible to find any reference to Art 53(b) in this decision. There is only ever question of Art 53(a)! <br /><br />The EBA gave lots of reasons why it should not change its interpretation of Art 53(c), but eventually came to the conclusion wished by the AC and the president. Where is the coherence one would expect from a body such as the EBA? That the EBA can change its case law is not disputed. The way it did is more than problematic. <br /><br />Through the reforms of 2016, the AC has been given a strong lever in order to obtain what it wants from the EBA: should you do not agree with our view, you can forget being re-appointed. I do not call this respecting the separation of powers. <br /><br />In G 6/95 the EBA had the guts to resist the AC when it amended R 71a(1) EPC1973. It decided that the amended rule did not apply to the boards of appeal. In G 6/95 the EBA decided that “the boards of appeal continue to have a discretion as to whether or not to send a communication when a summons to oral proceedings is issued”. Only the RPBA2020 has rendered this decision moot. <br /><br />Times have changed, now the users of the EPO will have to cope with a “dynamic” interpretation of legal provisions by the EBA!<br /><br />Techrights and zoobab: FINGERS OFF!!!<br />Attentive Observernoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-8626435346282431762020-05-19T16:35:40.322+01:002020-05-19T16:35:40.322+01:00I think you mean Article 53(b) not 53(c)?I think you mean Article 53(b) not 53(c)?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-45683226412466959842020-05-19T15:21:54.480+01:002020-05-19T15:21:54.480+01:00An excellent account of the distinctly iffy manoue...An excellent account of the distinctly iffy manouevres employed by the EBOA to reach the conclusion desired!<br /><br />At least one elephant is now situated in the room. Namely, if new Rule 28(2) was not introduced legally - which the EBOA side-stepped considering - can a "dynamic interpretation" of Article 53(c) legitimately arrive at the conclusion reached by the EBOA, if that very interpretation rests upon a rule which was not adopted in a valid manner?<br /><br />I wonder if we have not seen the last of this. Surely a clever representative can try to get the Boards to look at the issue of whether Rule 28(2) was adopted in a legal manner - and perhaps a Chairman or two close to the end of their careers with the EPO could be persuaded to take a look at this question without the threat of (non-)reappointment hanging over them.<br /><br />(May a crude parallel be drawn, pehaps, with the BVerfG's decision that the UPCA contravenes the German constitution due to violation of the proper procedure for its ratification...?)Anonymousnoreply@blogger.com