tag:blogger.com,1999:blog-5574479.post72511284247266407..comments2024-03-29T09:21:58.696+00:00Comments on The IPKat: Conference Report: Zurich IP Retreat 2017 - Patents and Hindsight (Part II)Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger21125tag:blogger.com,1999:blog-5574479.post-18938382233500046442017-09-25T07:39:47.798+01:002017-09-25T07:39:47.798+01:00T 1756/14 is an interesting decision as it does no...T 1756/14 is an interesting decision as it does not use the PSA to decide on lack of IS, and even more in using common general knowledge as closest prior art! <br /><br />I would summarise it as simply using common sense.<br /><br />http://www.epo.org/law-practice/case-law-appeals/advanced-search.html<br /><br />In spite of its simplicity, there is no hindsight in the negative assessment of IS. <br /><br />The board dealt with in an elegant way, and did not follow the COMVIK approach of the ED. The result is however the same: refusal. <br /><br />What do you think? I am addressing especially Max Drei.Attentive observernoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-34417420601583997212017-09-21T09:33:41.748+01:002017-09-21T09:33:41.748+01:00Dear Max Drei,
T 2255/10 gives exactly the answer...Dear Max Drei,<br /><br />T 2255/10 gives exactly the answer you need. What matters is what is in the claim, irrespective of what the applicant (or its representative?) may suggest when defining the problems he intends to solve.<br /><br />He cannot fence off any prior art which is in direct relation to the claimed invention, even if he might try to lead into another direction when stating his problem.<br /><br />To me the message is loud and clear, and is valid whether you apply the PSA or any other other method for assessing inventive step.<br /><br /><br /><br />Attentive observernoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-90763896349243057292017-09-21T07:36:14.190+01:002017-09-21T07:36:14.190+01:00Many thanks, Attentive, for the tip to T2255/10. S...Many thanks, Attentive, for the tip to T2255/10. So far, I have read only the Headnote, but it is already clear that this decision is, for me, a "Must read".<br /><br />I averred earlier that the Office, when asserting any particular prior art "starting point" for the obviousness analysis, should give Applicant full faith and credit for its choice of technical field and subjective problem.<br /><br />But there's a corollary to that. What if Applicant puts forward a claim that is "supported" (whether deliberately or inadvertently) by a description that is built up around some other problem, one that is not solved by the feature combination of the claim? One can imagine a wily Applicant who already knows the closest art deliberately framing a description to deflect the EPO from what ought to be the indisputable PSA "starting point" reference. So, is it the description, or is it the claim, which fixes the prior art starting point? There is only one answer, isn't there? As the American courts have said "The Name of the Game is the Claim".<br /><br />As of now, I think I agree fully with the Board. But first I must read the Decision. Thanks again for the tip to it, Attentive.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-68745241251125623962017-09-20T17:49:48.706+01:002017-09-20T17:49:48.706+01:00When preparing a lecture, I cam across a very inte...When preparing a lecture, I cam across a very interesting decision of a TBA with respect to the choice of CPA. It is T 2255/10.<br /><br />http://www.epo.org/law-practice/case-law-appeals/recent/t102255eu1.html#q%22T%202255%2F10%22<br /><br />You do not have to read the whole decision, the catchword is enough. The last § is particularly interesting.<br /><br />You might not agree, but I find it worth looking at. Attentive observernoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-56532911655926585842017-09-20T15:55:40.581+01:002017-09-20T15:55:40.581+01:00Attentive thanks but I had to smile at your "...Attentive thanks but I had to smile at your "nothing but". I hope what you mean is "anything but", that is, NOT arbitrary. To me, your "nothing but" is a statement that the choice of closest art under the PSA is indeed arbitrary.<br /><br />As I observed earlier, it is hard to be crystal clear.maxdreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-90729813839728160882017-09-20T15:48:13.545+01:002017-09-20T15:48:13.545+01:00For the avoidance of doubt, this was not oral proc...For the avoidance of doubt, this was not oral proceedings in Appeal or Opposition, but oral proceedings in examination, and I was using "board" to refer to the three-man examination team. Apologies for any confusion. In fairness to the EPO, it was the only instance of this behavior I have experienced, and never had anything to complain about in proceedings before Boards of Appeal. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-85162597279760905552017-09-20T14:57:09.844+01:002017-09-20T14:57:09.844+01:00I can only agree with Max Drei that, if one follow...I can only agree with Max Drei that, if one follows the "book", there should be no hindsight, and the PSA is indeed the best mechanism to avoid hindsight.<br /><br />That is why it is fought so vehemently by persons like Mr Hoyng. If it is not done according to the book, then it can indeed lead to wrong results, like any other method. The choice of closest prior art is nothing but arbitrary, again if done properly, and by not my merely stating the the CPA is the document which has the most features in common with the claim at stake. This statement is valid whether one uses the PSA or not! <br /><br />The PSA is certainly a useful tool when assessing inventive step, but not an absolute necessity. In pre-PSA times, in order to show lack of inventive step, the teaching was to have a continuous reasoning without any gaps or flaws. The could-would is not a creation of the PSA. This as well boils down to avoiding hindsight. <br /><br />When I am opponent, the person skilled in the art combines any documents he thinks fit to deny inventive step, and if I am proprietor, I would not touch certain documents with a barge pole! The truth lies somewhere in the middle. <br /><br />As I said before, a candidate representative cannot be successful at EQE, if he does not apply the PSA according to the book. Marks are given for every single step of the PSA. <br /><br />I do not know any TBA which does not use the PSA, beside those using the amended PSA as defined in a previous comment. <br /><br />I can also agree with Max Drei, that the word "board" should be reserved to the TBA. If the client did not appeal, it was then a division of first instance. Attentive observernoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-19089359466210270022017-09-20T13:43:27.276+01:002017-09-20T13:43:27.276+01:00All sorts of confusion in the recent comments. If ...All sorts of confusion in the recent comments. If it really was a "Board" that was intemperate, how could the aggrieved patent owner contemplate an "appeal"? perhaps it was an Opposition division that so offended the anonymous commenter?<br /><br />As to Attentive Observer, I have the feeling that we are of much the same mind, just that we both struggle to express exactly what we think about hindsight and the EPO's Problem and Solution Approach.<br /><br />What i think is that hindsight is excluded when everybody follows "the book", the process steps of EPO-PSA. If one side is not following it, to the detriment of the other side, well then the other side must call them out, loud and clear.<br /><br />Who amongst readers will dispute it with me, that i) framing the Objective Technical Problem (OTP) free from references to the claimed solution is vital to the exclusion of hindsight and that ii) because no real human can exclude the confirmation bias that comes from hindsight knowledge of the claimed solution, the discipline of correctly framing the OTP is the ONLY fair and effective way to shut out hindsight from the obviousness determination.<br /><br />In other words, EPO-PSA is the only known way, thus far to exclude a hindsight bias. <br /><br />MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-65768899501548764182017-09-20T11:49:50.823+01:002017-09-20T11:49:50.823+01:00I am afraid that they were that blunt. The client ...I am afraid that they were that blunt. The client was not prepared to go to the expense of filing an appeal. This actually took place a couple of years ago: I am now retired. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-17104466475621157542017-09-20T09:32:03.625+01:002017-09-20T09:32:03.625+01:00To anon of 19:53,
Your statement is bit coarse. I...To anon of 19:53,<br /><br />Your statement is bit coarse. I doubt that a BA would be as blunt as this. <br /><br />If this should indeed have happened, did you file an objection under R 106? <br />That is the only possible reply to such an apodictic statement. <br />If the statement was indeed uttered, then the the right to be heard was treated with contempt by the board.<br /><br />Let's wait the decision and see what the Board actually said in this matter.Attentive observernoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-40593835996156123932017-09-20T09:25:17.061+01:002017-09-20T09:25:17.061+01:00Dear Max Drei,
When carrying out a search, you fi...Dear Max Drei,<br /><br />When carrying out a search, you first look at all the documents which bear a relationship with the invention as disclosed. In a second step you refine the selection of the documents, and look at those corresponding to the claims as filed. This process might be iterated once or twice more.<br /><br />The whole reasoning about the presence or the absence of inventive step comes after the search has been made, and certainly not during the search. <br /><br />What you suggest to the searcher is to blank out the feature which actually solves the problem. This is not possible.<br /><br />Hindsight comes in, when in a ex-post facto reasoning the examiner claims that two documents can be combined, without giving any sound reasons as to why they should be combined, In other words he thinks just that the technical features in the documents could be merely added one to each other. Another possibility of hindsight is to bring in knowledge which has been gained after the effective date of the claims. <br /><br />When doing a search, it is a situation a bit similar to the student when looking a past exam papers. There he has the problem and its solution, so it is easy to claim that it was obvious to come to the claimed solution. When sitting in a real exam, the situation is totally different. You do not have the solution at hand, you have to find it.<br /><br />What I can agree with you, is by having the problem and its solution before his eyes, the examiner may be prone to decide quickly, that the teaching of two documents can be added, just at a finger's snap. This is another form of hindsight. The examiner should put himself in the position of the inventor, and humbly look starting from the prior art he considers being the starting point, i.e. the one of the inventor, or the one revealed by the search, whether he would have considered the further documents he found during the search. This humility is sometimes missing. <br /><br />Whether you use the PSA or not, the risk of ex-post facto reasoning by merely adding the content of two disclosures is always there. The best way is to look at plenty of oppositions, were the opponents are experts at this type of combinations!<br /><br />Looking for a document pointing to the solution is not hindsight. Hindsight is what I explained above. <br /><br />If you request that the documents revealed by the search point one to the other, then you may simply grant anything being new, as such a pointer/link is rarely to be found in disparate documents. <br /><br />In order to combine documents, whether under the PSA or any other system meant to decide upon inventive, the person skilled in the art comes in. There as well, he should not be equipped with divine powers, as then nothing would be inventive, and he should not be rebutted with the task, as anything would then be inventive.<br /><br />It is a fine balance, which can only achieved by experience and a good lot of common sense. It is interesting to see that at such a conference as the one reported, lots of people speak who never did a search in their life, but are very good at judging what hindsight is. Where do they gain their knowledge or experience in the matter?Attentive observernoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-80055818374631021072017-09-20T08:31:55.984+01:002017-09-20T08:31:55.984+01:00Super comment from anon at 19:53 yesterday evening...Super comment from anon at 19:53 yesterday evening. Are we to take it as a denunciation of the Problem and Solution Approach as such? I hope not. There is a world of difference between the Approach and the way individual European patent attorneys use it.<br /><br />The comment exposes the gulf of misunderstanding between representatives from the English law zone and those from the civil law world. Oral Proceedings are not a trial. Better to think of them as that which follows in a criminal trial when the judge asks "Anything to say before I pass sentence?"<br /><br />Oppositions at the EPO are deemed to be "primarily" written proceedings. The OD or the TBA meets the day before, to come to a view. At oral proceedings themselves, can it ever be anything more than addressing a panel that has more or less already formed a concluded view of the case? One the panel members have declared their opinion to the other two members, which one of them is going to admit, after oral proceedings the next day that "I've changed my mind"? None of them, right? That's why we reps have to win the case in writing BEFORE that fateful coming together of the Board, in their meeting the day before the Orals. The best we can hope for at orals is to give them pause, help them to see where they have assessed it wrong, and hope that the panel changes its collective mind already made up.<br /><br />So much better, in some ways, how it's done in England, with a single judge who doesn't have to make up his (or her) mind till the trial is over.<br /><br />But then again, a panel of three is essential when one judge is liable to get it wrong.<br /><br />As Kahnemann and Haidt see it, the human brain is like a mahout riding a rogue elephant. The only way to arrest a rogue elephant going off in the wrong direction is two other equally large elephants, one on each side of the one that's gone rogue, those other two mahouts together bringing the matter to a calm and sensible conclusion.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-83537766743293869252017-09-19T19:53:35.219+01:002017-09-19T19:53:35.219+01:00At the last oral proceedings I attended, the Board...At the last oral proceedings I attended, the Board identified what they considered to be the closest prior art and invited me to proceed on that basis. They refused point blank to consider any other starting point and told me that if I did advance arguments to the contrary, the only effect would be to necessarily prolong the proceedings as they had made up their mind. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-66434497944442348692017-09-19T18:14:34.128+01:002017-09-19T18:14:34.128+01:00Dear Attentive Observer, I am not comfortable with...Dear Attentive Observer, I am not comfortable with some of what you wrote (above) earlier today, namely:<br /><br />"....once the objective problem is decided, the person of ordinary skill in the art will look if the remaining prior art, be it in the same field, in a neighboring or even a more general filed, reveals elements which would help him to solve the objective problem. That he could do so is not correct, and is actually hindsight."<br /><br />I hope we both agree that the search in the prior art for hints or suggestions how to solve the OTP must be done in a way which excludes any knowledge of the claimed technical feature which solves the problem. either the prior art suggests using the claimed feature to solve the OTP or it doesn't. In this way, one excludes hindsight knowledge of the claimed solution.<br /><br />Agreed? MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-1133184609333711542017-09-19T08:54:54.691+01:002017-09-19T08:54:54.691+01:00Dear Max Drei,
I am not as anonymous as you think...Dear Max Drei,<br /><br />I am not as anonymous as you think since we exchanged views quite often, be it here or in other blogs. <br /><br />It was the will of the legislator to introduce Art 54(3), and any litigator, how important he thinks he is, should respect this. It has nothing to do with obviousness determination, and that’s it. <br /><br />May be Mr Hoying is hoping that the UPC will be more lenient in this matter. I just hope that the UPC will not open Pandora’s Box. That he will push for this is however sure. The same goes with added matter, as for me the two aspects novelty and added matter are linked, whether one likes or not.<br /><br />As far as my example with the washing machine and the drainage pipe is concerned, I should precise my thoughts. It obviously depends on the way the device is claimed. Representatives have a built in tendency to always generalise the inventor's thoughts. If it is claimed in the most general way, a pipe/drum with holes, then novelty is at stake.<br /><br />But if it is claimed as either a wash machine drum or a drainage pipe, then one would not be suitable for the other purpose, and novelty is given. I would say it is not possible to prima facie enable a washing machine with a concrete drainage pipe. Let’s use some common sense!<br /><br />I fully agree with Max Drei, that it is necessary to prima facie take into account the field in which the inventor works and the technical problem he wants to solve, with the proviso that the claim is drafted in a reasonable way. This is also the starting point for the adapted PSA coming up in certain chemistry boards.<br /><br />We have then to live with the fiction that the inventor was meant to know all the prior art available, and here a closer prior art can be revealed by the search. I would not necessarily speak from characterising features, but features not found in the prior which is then closer to the claim as the one considered by the inventor. And here we end up with the objective problem. <br /><br />To take an analogy with a puzzle, the first piece of the puzzle has to correspond with what the inventor thinks he has invented, i.e. the closest prior art and not any piece looking somehow alike. The objective problem is to fill in the missing part of the puzzle.<br /><br />I never heard of the term PHOSITA, but once the objective problem is decided, the person of ordinary skill in the art will look if the remaining prior art, be it in the same field, in a neighbouring or even a more general filed, reveals elements which would help him to solve the objective problem. That he could do so is not correct, and is actually hindsight. <br /><br />It is not because he finds what he considers the missing part of the puzzle that the subject-matter of the claim becomes obvious. That missing part has to fit properly and without any difficulty or pushing into the space left. We all have tried it when building up a puzzle! If the piece of prior art does not fit the space, then the subject-matter of the claim is inventive. If the puzzle can be completed, then there is no inventive step. <br /><br />It might look a bit simplistic, but this is a way which can help to assess inventive step, whether you call it PSA or anything else. Explaining this to trainees has always helped them to grasp how IS should be assessed.<br /><br />I might have been a bit long, but I hope to have answered Max Drei’s question and that he can follow my thoughts. <br />Attentive observernoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-25601452747194131612017-09-18T21:23:20.821+01:002017-09-18T21:23:20.821+01:00Interesting observations from that anonymous at 17...Interesting observations from that anonymous at 17:16 hr today. Litigators (Prof Hoyng perhaps included) go out of their way to denigrate EPO-PSA. it is in their financial interests to complicate the obviousness determination.<br /><br />As to Art 54(3) EPC, I recall another prominent litigator, Heinz Bardehle, on a crusade, pushing the notion of "Expanded novelty" (somewhere between novelty and obviousness) to adjudicate Art 54(3) EPC. An attempt at a compromise with the law in the USA, I suppose, but certainly a full extra layer of complexity. Perhaps Mr Hoyng is playing the same game?<br /><br />I am curious about anon's remarks on fixing a prior art starting point that is to the inventor fair and realistic. It was always my understanding that one ought to give full faith and credit to Applicant, in its identification of a) the technical field and b) the subjective problem addressed by the real inventor. If it is washing machine drums and their rapid drainage, so be it. Of course, it will likely depend whether the claim is directed to a washing machine drum or more generally, to a perforated cylinder, what technical field the claim sets. <br /><br />After the fair starting point has been fixed, the rest of the PSA analysis has its own momentum. The characterizing features will fix what was (for the imaginary PHOSITA) the objective problem. Then comes the assessment whether the prior art contains a TSM which the PHOSITA would take as a solution to that objective technical problem.<br /><br />Anonymous, did I understand you wrong? Care to comment?MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-49763555604793514742017-09-18T17:17:27.723+01:002017-09-18T17:17:27.723+01:00Helpful reply from Mr Schweitzer. Would he now ca...Helpful reply from Mr Schweitzer. Would he now care to illuminate us, how the "starting point" issue is handled by Opposition Divisions at the EPO, and in appeals from decisions made by Opposition Divisions, operating under EPO-PSA.<br /><br />As far as I know, it falls to the Opponent to formulate obviousness attacks, using its own choice of starting point. As many different attacks as it can get up and running, with no restraint on the choice of starting point in each one of those lines of attack.<br /><br />And the Division has to examine them all.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-1445248019632791292017-09-18T17:16:05.933+01:002017-09-18T17:16:05.933+01:00The PSA is indeed not a requirement of the EPC and...The PSA is indeed not a requirement of the EPC and it has been created by case law, originally by chemistry BA. It later diffused in other BA. I do agree that it is a good tool to asses IS, and one of its drawbacks is indeed the choice of the CPA. I do agree with Max Drei’s position. <br /><br />It should however be abundantly manifest, that it is not the document having the most features in common with the claim which is the closest prior art. A washing machine drum is a cylinder with holes, but this does not mean that a concrete draining pipe with holes is an appropriate starting point to start discussing inventive step of the washing machine drum. <br /><br />Some chemistry boards have gone over to a kind of adapted PSA in which it the problem which is meant to be solved by the application/patent which is taken and not the objective problem as it results from the "classical" PSA. It also considers the success of the claimed solution and depending on the outcome of this examination may reformulate the problem in a less ambitious way. It is then to be decided whether the proposed solution to this latter problem, or to the original problem, is obvious or not. As examples see for instance T 366/12 or T 195/13.<br /><br />I do not agree with Mr Schweizer that in examination it is not possible to look at different starting points when assessing inventive step. If this does not become apparent, it is nevertheless part of the process. <br /><br />May be it could be useful to publish the reasons why a patent has been granted by the EPO, i.e to publish the “Votum”. Presently it is excluded from the public part of the file following a decision of the President of the EPO. After all, when an application is refused, then the reasons for refusal are public. Why not in the reverse case. I never understood the logic behind this difference. Publishing the Votum could also increase the quality of granted patents.<br /><br />One should never forget that the aim the aim of the EPO is only to grant valid patents, an examining division will or should never turn a blind eye to a possible lack of IS. <br /><br />In opposition the situation is different and the opponent often adopts a plurality of attacks, with more or less success. It is enough in general to show that with one combination of documents, the claimed subject-matter is not inventive to revoke the patent, even if with some other combinations, it could well be considered as being inventive. This is also often done by the BA.<br /><br />Contrary to Mr Hoying’s opinion, the PSA is not “a tool developed by the European Patent Office to deal with its massive case load”. See above. It is simply a tool, among others, to decide upon IS, and to avoid as much as possible hindsight. When the PSA was introduced by the chemistry BA, the workload was not so enormous, and if applied properly and reasonably it helps. By the way, no candidate to the European Qualification Examination will pass, if he does not correctly use the PSA. <br /><br />For the rest, I fail to understand what Mr Hoying's comment about Art 54(3) has to do in a discussion relating to IS. By definition prior art under Art 54(3) can only be used for novelty. And to render a claim novel, it is enough to add to it a technical feature which is not disclosed in the Art 54(3) prior art. <br /><br />What is suggested by Mr Hoying is one the one hand to bring in a little bit of IS, or more dangerous, merely to water down the requirements for novelty. May be with the aim to also enlarge the original disclosure when it comes to added subject-matter? It is true that the BA are severe when it comes to added subject-matter, but this to the benefit of third parties. One should never forget that a coin has two faces: the one is the strict approach to added subject-matter, but the other one is novelty, for instance of combinations from different lists. <br />Attentive observernoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-32361765333996869312017-09-18T16:17:23.588+01:002017-09-18T16:17:23.588+01:00Nice write-up. Much appreciated.Nice write-up. Much appreciated.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-65813718363623351142017-09-18T15:06:04.743+01:002017-09-18T15:06:04.743+01:00I don't think the judges are rubbishing the PS...I don't think the judges are rubbishing the PSA. Most continental European jurisdictions are employing it, with minor variations and without requiring it by law.<br />Many feel unease with starting inventive step analysis from just one “closest” prior art reference. While the EPO in theory allows starting from several suitable starting points, in practice, if the invention is found inventive starting from the “closest” prior art reference, the assessment is stopped and the patent granted.<br />While this may be justified in examination proceedings, where resources are limited – and since each time you start from a new starting point, you must define the problem new, since the distinguishing features and their effects will be different, which is very time consuming – in civil litigation there are less resource constraints. It may therefore make sense to assess inventive step from several suitable starting points.<br />Opinions differ whether there should be any constraints on the choice of the starting point. Some leave it up to the attacker to choose the starting point, imposing no constraints (Switzerland). Others allow starting from several starting points, but require justification of each starting point as realistic (Germany). Still others impose strict constraints and require that the starting point has the same purpose as the invention (the Netherlands).Mark Schweizerhttps://www.blogger.com/profile/04460433294632554129noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-82336395802504183352017-09-18T13:54:51.613+01:002017-09-18T13:54:51.613+01:00What I always find so depressing is that all the j...What I always find so depressing is that all the judges gang up on EPO-PSA, to do it down. We need harmony, for testing obviousness, through the mind of that legal construct, the Person of Ordinary Skill in the Art. If not EPO-PSA, what other approach has any merit? <br /><br />As far as I can see, the criticisms amount to nothing more than "But it ain't that simple!". Well, true, EPO-PSA applied correctly, is not simple. At least in its full-blown form, with exhaustive consideration of all the secondary considerations of obviousness. <br /><br />But it is rigorous, predictable and objective. What other approach, equally fair to both patent owner and petitioner for revocation, can rival it? Yet it is waved away by the judges, dismissed out of hand. It is as if anything invented in a mere Patent Office is of no interest in the higher levels of sophistication in the courts.<br /><br />Those judges coming from an American background should mull over the difference it makes, in the context of "hindsight", to assess obviousness as of a date (the filing date) which is AFTER the inventor has written her patent application. The written patent application is a "prior" document. It is legitimate to give its author full faith and credit when fixing the "realistic starting point" in the prior art universe, with which to begin the enquiry what was obvious (or not) on the filing date to the Imaginary PersonHOSIT-relevant-Art. After all, the drafter of the patent application does it with "hindsight" knowledge of the invention and the prior art. On a fresh sheet of paper, one defines and describes the contribution to the relevant technical field, to show off the invention in its best light. Allowing the attacker to elect a prior art starting point does no more than level the playing field. MaxDreinoreply@blogger.com