●● IRC: #techbytes @ FreeNode: Saturday, October 31, 2020 ●●
● Oct 31
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[00:09] schestowitz See below.
[00:09] schestowitz I'm not sure if I know this person well enough to allow server access, maybe except to /home/links (for uploads etc.)
[00:09] schestowitz Thoughts?
[00:09] schestowitz The person is, indeed, a security pro. A regular in IRC for months.
[00:09] schestowitz /quote/
[00:27] schestowitz -----
[00:27] schestowitz > Did you receive an email from the xxxxx system? You need to use
[00:27] schestowitz > their link.
[00:27] schestowitz >
[00:27] schestowitz > You can have a look at their online form and tell me if you feel
[00:27] schestowitz > comfortable with it. I haven't seen the questions myself so I don't
[00:27] schestowitz > know for certain if you can meet their requirements.
[00:27] schestowitz >
[00:27] schestowitz > As you've spent a lot of time picking through my blogs I assume you are
[00:27] schestowitz > familiar with my work, my analytic skills and my principles and this may
[00:27] schestowitz > put you in scope to provide the reference.
[00:27] schestowitz >
[00:27] schestowitz > They need a minimum of three references, the other two come from an
[00:27] schestowitz > employer and a professor so they are not making any decision based
[00:28] schestowitz > solely on your contribution.
[00:28] schestowitz I am going to check my mail now.
[00:31] schestowitz Does this part not invalidate my reference letter?
[00:31] schestowitz "This letter of reference must be written by a teacher under whom the applicant has studied or pursued research in the proposed field of study or by someone who has supervised the applicant in work related to the proposed field of study."
[00:37] schestowitz >> Does this part not invalidate my reference letter?
[00:37] schestowitz >>
[00:37] schestowitz >> "This letter of reference must be written by a teacher under whom the
[00:37] schestowitz >> applicant has studied or pursued research in the proposed field of study
[00:37] schestowitz >> or by someone who has supervised the applicant in work related to the
[00:37] schestowitz >> proposed field of study."
[00:37] schestowitz > Yes, I think that is quite firm
[00:37] schestowitz >
[00:37] schestowitz > On the paper version of the form there are options like Teacher,
[00:37] schestowitz > Employer and Other. For Other it lets you write something in. If the
[00:37] schestowitz > online form isn't like that then I don't want to take any risks with it
[00:37] schestowitz > and I can remove you from the list.
[00:37] schestowitz Best to check/ask someone before I invest time in something they might discard.
[00:40] schestowitz >>> sudo: no valid sudoers sources found, quitting
[00:40] schestowitz >>> sudo: unable to initialize policy plugin
[00:40] schestowitz >> I can only push politely every now and then, as I occasionally do. Not
[00:40] schestowitz >> idea situation, but then again we're not paying for it.
[00:40] schestowitz >>
[00:40] schestowitz >>
[00:40] schestowitz > Of course, I understand. At least on bare metal it is not a difficult
[00:40] schestowitz > repair, but, it is a bit time consuming and certainly not fun.
[00:40] schestowitz We'll get it all sorted out, eventually. It always gets sorted out at the end, esp. (faster) if it's urgent/critical e.g. site downtime due to broken DB.
[00:40] schestowitz Do you like the text version of the site?
[00:40] schestowitz http://techrights.org/txt
[00:40] schestowitz A hopping point, more to come...
[00:40] schestowitz I'm back to work later today.
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[09:31] schestowitz >> We'll get it all sorted out, eventually. It always gets sorted out at
[09:31] schestowitz >> the end, esp. (faster) if it's urgent/critical e.g. site downtime due to
[09:31] schestowitz >> broken DB.
[09:31] schestowitz >>
[09:31] schestowitz >> Do you like the text version of the site?
[09:31] schestowitz >>
[09:31] schestowitz >> http://techrights.org/txt
[09:31] schestowitz > Neat. If the pages were split and file under directories it could be
[09:31] schestowitz > served as a gopher.
[09:31] schestowitz Also onion service.
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[09:37] schestowitz >>> The problem with the EPO stuff not being covered much by the mainstream
[09:37] schestowitz >>> media is simply that it's too abstract and obscure for their purposes,
[09:37] schestowitz >>> and most journalists get to spend very little time on a story, just like
[09:37] schestowitz >>> EPO and USPTO and other patent examiners get to spend very little time
[09:37] schestowitz >>> on a patent application.
[09:37] schestowitz >>>
[09:37] schestowitz >>> This story is more than 4 months old, so I can't cover it now unless and
[09:37] schestowitz >>> until there are some new statements/developments.
[09:37] schestowitz >> Wait for the Commission to respond... if it ever does. Is it legally
[09:37] schestowitz >> obliged to?
[09:37] schestowitz >>
[09:37] schestowitz >> I cant remember having seen a case in which they didnt respond at
[09:37] schestowitz > all to an official MEP question. But neither have I ever seen any
[09:37] schestowitz > substantive response to this type of question. Theyre just evasive in
[09:37] schestowitz > those situations.
[09:37] schestowitz >
[09:37] schestowitz > Maybe contact the MEP?>
[09:37] schestowitz > I wont contact the MEP but you can try.
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● Oct 31
[14:40] schestowitz > The mailbox for the bytesmedia account has been unavailable for my part
[14:40] schestowitz > for a couple of weeks now. The last time I could get the messages was
[14:40] schestowitz > on the 14th in the evening. Has anything changed on the server side?
[14:40] schestowitz No, nothing has changed, except perhaps me noticing some days ago that the site's DB had been broken for who knows how long...
[14:41] schestowitz What error message do you receive?
[14:52] schestowitz >>> No, nothing has changed, except perhaps me noticing some days ago that
[14:52] schestowitz >>> the site's DB had been broken for who knows how long...
[14:52] schestowitz >>>
[14:52] schestowitz >>> What error message do you receive?
[14:52] schestowitz >>>
[14:52] schestowitz >> No message, just the spinning wheel spins in Thunderbird.
[14:52] schestowitz >>
[14:52] schestowitz > Ok. It seems to have spontaneously become accessible again. The
[14:52] schestowitz > 'loading' wheel no longer spins and I get today's messages.
[14:52] schestowitz I am going to respond to your long message later (I saw just the first few lines), am under stress at the moment as I want to finish things before my shift.
[14:52] schestowitz Why mention this?
[14:52] schestowitz Thunderbird.
[14:52] schestowitz The reason I sent UN-emcrypted a message that is sensitive?
[14:52] schestowitz Thunderbird.
[14:52] schestowitz Ryan et al aren't as pedantic as enigmail.
[14:52] schestowitz More details will be noted in IRC logs of #techrights as this was brought up.
[14:52] schestowitz I'm not managing to produce as many articles as I hoped today.
[14:52] schestowitz QuiteRSS crashes no less than 50 times today, both for myself and Rianne on her PC. We found the culrpit, a domain that spewed out pure crap.
[14:52] schestowitz Not starting well so far today and I'm tired already.
[14:52] schestowitz Lockdown might start again next week, which means exercise at home, more PC time.
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● Oct 31
[22:40] schestowitz >> See below.
[22:40] schestowitz >>
[22:40] schestowitz >> I'm not sure if I know this person well enough to allow server access,
[22:40] schestowitz >> maybe except to /home/links (for uploads etc.)
[22:40] schestowitz > I would say a separate account, if upload permissions are to be granted.
[22:40] schestowitz > Chrooted SFTP is easy enough to set up and may be a decent compromise.
[22:40] schestowitz > It would allow read-write access a very limited portion of the file
[22:40] schestowitz > system and prevent any other use of the system.
[22:40] schestowitz >
[22:40] schestowitz >> Thoughts?
[22:40] schestowitz >>
[22:40] schestowitz >> The person is, indeed, a security pro. A regular in IRC for months.
[22:40] schestowitz >> ...
[22:40] schestowitz > FYI, the message sent was forwarded unencrypted. Check your outbox.
[22:40] schestowitz >
[22:40] schestowitz > I think the idea of educating the public about PKI is very important.
[22:40] schestowitz > It's something that TR ought to help with somehow and the proposal is
[22:40] schestowitz > quite timely and worthy. I worry about the choice of platform though.
[22:40] schestowitz >
[22:40] schestowitz > In general, my position that Windows use should neither be accepted nor
[22:40] schestowitz > condoned for any purpose has only hardened over the years as I have had
[22:40] schestowitz > more time to observe it [1] and think. Above all it is an ineffectual
[22:40] schestowitz > platform for teaching and instruction, so while a tutorial on PKI might
[22:40] schestowitz > be better than nothing the Windows component will be a very heavy
[22:40] schestowitz > liability which is likely to prevent achieving any teaching objective.
[22:40] schestowitz > However, I agree strongly with the goal otherwise. It is also a problem
[22:40] schestowitz > that neither the Crypto Wars II and Software Patents which warrant the
[22:40] schestowitz > severity of the
[22:40] schestowitz >
[22:40] schestowitz > As for the hands-on aspects of learning, I strongly agree with that
[22:40] schestowitz > approach. While computer science, actual science, can be (and probably
[22:40] schestowitz > should) taught very well with paper and pencil exclusively, actually
[22:40] schestowitz > doing something to apply knowledge that can help with the education very
[22:40] schestowitz > much. Since this is 2020 and not 1980 I have to point out that two or
[22:40] schestowitz > more different implementations and platforms have to be used, otherwise
[22:40] schestowitz > it is not education but training and that would not be useful for
[22:40] schestowitz > promoting understanding at a level necessary for dealing with the
[22:40] schestowitz > abstractions the proposed laws claim to be addressing.
[22:41] schestowitz >
[22:41] schestowitz > So if the target is Windows users, I don't know what to say. Getting
[22:41] schestowitz > them to use a second platform, even in a VM, will raise the learning
[22:41] schestowitz > curve psychologically beyond the threshold of what many will tolerate.
[22:41] schestowitz > Besides with Windows as a host, the guest won't get used, all the time
[22:41] schestowitz > will be spent dorking around with the host system's shortcomings. Yet,
[22:41] schestowitz > I see introduction of a second platform there as a necessary first step.
[22:41] schestowitz > Dual booting is out, but a third option, that of live images might be
[22:41] schestowitz > ok. The image can be streamlined for the task with the necessary
[22:41] schestowitz > components preinstalled and, maybe also, preconfigured. All the popular
[22:41] schestowitz > distros have live images which can be respun. For specialized, yet
[22:41] schestowitz > successful examples, see these two below. Sorry the second link is not
[22:41] schestowitz > available in English or Russian yet and is not likely to be for years:
[22:41] schestowitz >
[22:41] schestowitz > https://www.system-rescue.org/
[22:41] -TechBytesBot/#techbytes-www.system-rescue.org | SystemRescue - System Rescue Homepage
[22:41] schestowitz > https://www.abitti.fi/
[22:41] -TechBytesBot/#techbytes-www.abitti.fi | Abitti
[22:41] schestowitz >
[22:41] schestowitz > And one question about the work flow, why use a scripting language like
[22:41] schestowitz > PDF instead of regular XHTML?
[22:41] schestowitz >
[22:41] schestowitz > There's more to say but I'll wrap it up.
[22:41] schestowitz >
[22:41] schestowitz > About the access, we don't have any non-production systems at TR.
[22:41] schestowitz > Which level of access? Again, a new account with chrooted SFTP is not
[22:41] schestowitz > high risk.
[22:41] schestowitz >
[22:41] schestowitz > --
[22:41] schestowitz >
[22:41] schestowitz > [1] As yet another example, I recently watched a nearly fully trained
[22:41] schestowitz > Windows expert try and fail to transfer a bootable system image from a
[22:41] schestowitz > web site to a USB stick within the time allotted, which was about 1.5
[22:41] schestowitz > hours. The same task in GNU/Linux or one of the BSDs is normally about
[22:41] schestowitz > 5 minutes. Windows as a platform is just not up to any task and appears
[22:41] schestowitz > implemented to keep people busy and behind schedule rather than to get
[22:41] schestowitz > tasks done. Thus it will be an impediment to teaching PKI too.
[22:41] schestowitz >
[22:42] schestowitz > Really, really good article!
[22:42] schestowitz >
[22:42] schestowitz > I especially like this as you brought out:
[22:42] schestowitz >
[22:42] schestowitz >
[22:42] schestowitz >
[22:42] schestowitz >
[22:42] schestowitz > "When a group drops support, other people should be free to pick it up.
[22:42] schestowitz > We should encourage that if we care about freedom, but instead we shit
[22:42] schestowitz > on them just like a corporate monopoly would. That is a great
[22:42] schestowitz > disservice, both to users and hard-working developers. When you say
[22:42] schestowitz > something isn't supported, when people are working very hard to support
[22:42] schestowitz > it-- then you tell those same people to stop supporting it, how can you
[22:42] schestowitz > ever say that's honest?"
[22:42] schestowitz >
[22:42] schestowitz > It is very _telling_ when this happens - telling us that the motivation
[22:42] schestowitz > is not authentically about the users, or the other developers.
[22:42] schestowitz I too really enjoyed this article.
● Oct 31
[23:06] schestowitz http://ipkitten.blogspot.com/2020/09/guest-post-casebook-of-copyright-are.html?showComment=1603748841929#c7096588199216217597
[23:06] -TechBytesBot/#techbytes-ipkitten.blogspot.com | [Guest post] The Casebook of Copyright: are the character traits of Sherlock Holmes protected by intellectual property? - The IPKat
[23:06] schestowitz "
[23:06] schestowitz Hello Nedim,
[23:06] schestowitz You write that: "As a result the Estate may have to rely on the alleged trade mark infringement, based on the extensively used and licensed portfolio of trade marks relating to Sherlock Holms and Dr Watson. "
[23:06] schestowitz But we saw in the EUIPO Banksy case https://ipkitten.blogspot.com/2020/09/copyright-is-for-losers-and-so-are.html that: "In this sense, it elaborates further - without mentioning it - on the suggestion already advanced in case law including recently in the EFTA Courts decision in Vigeland [Katposts here] (referring to the AG Opinion in Shield Mark) that a trade mark based entirely on copyright protected work carries a
[23:06] -TechBytesBot/#techbytes-ipkitten.blogspot.com | Copyright is for losers and so are trade marks: Banksys EUTM declared invalid due to bad faith - The IPKat
[23:06] schestowitz certain risk of monopolisation of the sign for a specific purpose, as it grants the marks proprietor such exclusivity and permanence of exploitation which not even the author of the work or his estate enjoyed. As a result, [t]he interest in safeguarding the public domain speaks in favour of the absence of individual protection for, or exclusive rights to, the artwork on which the mark is based."
[23:06] schestowitz I would guess that on that basis trademark protection would be denied?
[23:06] schestowitz "
[23:06] schestowitz http://ipkitten.blogspot.com/2018/01/scents-and-trade-marks-eu-reform-of.html?showComment=1603786535528#c1559885234034743583
[23:06] -TechBytesBot/#techbytes-ipkitten.blogspot.com | Scents and trade marks - The EU reform of olfactory marks and advances in odour recognition techniques - The IPKat
[23:06] schestowitz "Whilst a floral fragrance is unlikely to be registrable for fabric softeners and the smell of coffee for a type of coffee, one may argue that the distinctiveness requirement may be met in the event of the ascent of a particular type of coffee used consistently applied to all fabric softeners of a single undertaking "
[23:07] schestowitz http://ipkitten.blogspot.com/2017/10/book-review-fundamental-right-to-data.html?showComment=1603912769471#c452261119830318245
[23:07] -TechBytesBot/#techbytes-ipkitten.blogspot.com | Book Review: The Fundamental Right to Data Protection - The IPKat
[23:07] schestowitz "It is odd that the people who are hostile to IP are often the same people who are in favour of data processing law - yet the latter restricts personal freedom just as much (or more than) the former."
[23:07] schestowitz http://ipkitten.blogspot.com/2020/10/hague-court-of-appeal-sets-dutch.html?showComment=1603992278598#c6072911155352422642
[23:07] -TechBytesBot/#techbytes-ipkitten.blogspot.com | Hague Court of Appeal sets Dutch approach to equivalence, reversing District Court in pemetrexed saga - The IPKat
[23:07] schestowitz "
[23:07] schestowitz The decision on at least the 4th principle appear to be somewhat problematic.
[23:07] schestowitz The allegedly infringing product may well have been novel and inventive. However, neither novelty nor inventive step can ever be assessed in an abstract sense. That is, both assessments require a date to be fixed for the claimed subject matter, so that the disclosures that represent prior art can be determined. Further, inventive step requires consideration of the disclosure of the specification and, especially for claims directed to a
[23:07] schestowitz medical use, the effect(s) rendered plausible (and for which embodiments of the invention) by that disclosure.
[23:07] schestowitz I have always struggled to understand why the latter aspect of inventive step assessment has received so little attention by national courts in the Eli Lilly saga. As I recall, that issue (and not just added subject matter) underpinned objections raised by the EPO examiner against the broad claim scope that was initially pursued by Eli Lilly during prosecution.
[23:07] schestowitz Equally, I struggle to understand why the issue of sufficiency of disclosure would not limit (in one way or another) the equivalents that can be protected by a patent claim. If the disclosure of a patent does not enable the invention to be performed using the purported equivalents, then how on earth are third parties provided with "a reasonable degree of legal certainty" if the equivalents are nonetheless protected by the patent?
[23:07] schestowitz Based upon its decision in the Regeneron case, at least the UK Supreme Court appears to believe that the sufficiency of disclosure requirement should be satisfied across substantially the whole scope of the claims. If the scope OF PROTECTION provided by those claims includes equivalents, then why on earth should the same (or at least similar) principles governing sufficiency not apply to that whole scope? This ought to be particularly
[23:07] schestowitz pertinent to those alleged equivalents that are inventive over the disclosure of the patent in question, ie to embodiments that were only developed as the result of a later inventive step. In this respect, it seems to me a little ironic that the existence of a (presumably later) patent to the allegedly infringing embodiment was held to support the contention that said embodiment was protected as an equivalent.
[23:07] schestowitz I am all for providing patentees with a reasonable scope of protection, including for equivalents. However, the way in which courts in Europe are currently going about doing this appears to be based upon some very dubious "logic" indeed!
[23:07] schestowitz "
[23:07] schestowitz "
[23:07] schestowitz To my mind, there is something to be regretted in the divergence of patent law, between the EPO's "Gold Standard" and the DoE promulgated all over Europe by the national Supreme Courts. I mean, the EPO comes down ultra-hard on any drafting deficiencies. deserving applications disappear, all the time, in the notorious Bermuda Triangle formed by the vertices of Art 54, Art 84 and Art 123(2) EPC. Yet, if you can get through to issue a
[23:07] schestowitz claim that withstands attacks under Art 54 EPC, you can look forward to a generous scope of protection, reaching way beyond what you claimed, regardless how negligent was your original claim drafting and how unclear was your description.
[23:07] schestowitz In other words, the EPO does not forgive poor original drafting but the national courts condone it, even encourage it. is that how others see it? If so, is it good or bad for promoting technological innovation in Europe?
[23:07] schestowitz "
[23:08] schestowitz "
[23:08] schestowitz Hi Proof, thank you for this. You raise an intriguing question! The CoA held that the equivalent must be novel + inventive over the patent's prior art (fourth principle). I think you question is directed to the issue that Fresenius' product was (let's suppose) novel + inventive over Eli Lilly's own patent.
[23:08] schestowitz But does that necessarily mean Fresenius' equivalent is not enabled and/or made plausible by Eli Lilly's patent? It seems to me that the Fresenius salt may well have some novel and inventive properties over Eli Lilly's salt, and still satisfy the first + second principles in the CoA's test. That is, even if it has some novel and inventive properties, it may still act to solve the same technical problem (make the product suitable for
[23:08] schestowitz storage and sale), and fall within the disclosure of Eli Lilly's invention (adding salt to pemetrexed solves the technical problem, regardless of the type of salt). Then, if Eli Lilly's patent satisfies the tests for plausibility and sufficiency, the same can be said of this equivalent.
[23:08] schestowitz This is also apparent from the decision--an aspect I didn't include in the post because of constraints of space. At 4.27, the CoA found that (1) Fresenius' patent did not claim pemetrexed and tromathemine as such, but rather in a specifically balanced mixture with some process steps added; and (2) in fact the EPO stated during prosecution that combining pemetrexed with tromathemine as such was obvious.
[23:08] schestowitz I think your point might hold where the equivalent is covered by a product claim, which suggests that the salt/combination as such is novel and inventive over the invoked patent. But that doesn't seem to have been the case here. And of course for equivalence it doesn't matter whether the inventive effect of the later patent is actually achieved: i.e. Eli Lilly's patent would cover any combination of pemetrexed with a salt, regardless of
[23:08] schestowitz whether the specific mixture of Fresenius' patent is used. The fact that it is can't render it non-equivalent to Eli Lilly's patent, since it still uses its basic inventive concept (pemetrexed + salt).
[23:08] schestowitz I wonder what you think!
[23:08] schestowitz "
[23:08] schestowitz "Hi MaxDrei, thanks for this. In the Netherlands, the doctrine of equivalents is at least partially seen as a "compensation" for how hard it is to draft claims, especially for breakthrough inventions. This is certainly apparent in older case law and the CoA's decision echoes this sentiment as well. I think courts do not so much "condone" poor drafting, but acknowledge that the "Bermuda Triangle" you mention can restrict patentees who,
[23:08] schestowitz after filing their priority application, further develop their invention and may only later realize its full potential. In my view, that seems fair: the EPO's rigidity acts to prevent abusive prosecution practices (such as writing claims to cover competitors' products) as much as possible, whereas courts seek to establish a fair scope of protection. Note that the CoA's second principle implies that poorly drafted applications won't
[23:08] schestowitz normally be entitled to a broad scope of protection: the CoA is saying that equivalence is only appropriate if your invention as disclosed warrants it."
[23:08] schestowitz "It is good to see that applicants/proprietors are not being disadvantaged in enforcement proceedings by the strictness of EPO practice in examination. We must remember that infringement proceedings are a dispute between 2 parties and the Courts must be free to decided on a 'just' outcome without the technical aspects of patent law interfering too much. In the US also there are different interpretations in examination and litigation,
[23:08] schestowitz and essentially that system is coming into development now across Europe based on the practical experience of the Courts in deciding on infringement"
[23:08] schestowitz "
[23:08] schestowitz Hi Proof, I see your point, but questioned your underlying assumption that Eli Lilly's claims were not enabled over the whole breadth of the claim, including equivalents (such as Fresenius' product). I don't know the prosecution history of the patent, but I take from the CoA's decision that it found that Eli Lilly's patent disclosed, in an enabling manner, the use of a combination of pemetrexed and (not just disodium, but) a salt. If
[23:08] schestowitz that is correct, then I don't see why Eli Lilly's patent can't be considered an enabling and plausible disclosure of the equivalent that now allegedly infringes it, i.e. Fresenius' product.
[23:08] schestowitz So, I think we're in agreement that a patentee should not be allowed to capture non-enabled embodiments through the doctrine of equivalents, but I wonder if this case is an example thereof. The CoA's decision makes me suspect it's not, though the prosecution history could perhaps suggest otherwise.
[23:08] schestowitz "
[23:08] schestowitz "
[23:08] schestowitz Lon: with respect, I think that you missed the main point that I was making.
[23:08] schestowitz During prosecution, shortcomings of the disclosure of the description and drawings can lead to adverse findings on sufficiency and/or inventive step. For example, if a specification does not disclose the suitability for a medical use of substantially all active ingredients encompassed by a medical use claim, then the EPO is likely to raise objections on the grounds of implausibility (either for putting the invention into practice or for
[23:08] schestowitz solving the objective technical problem).
[23:08] schestowitz As confirmed by the UK Supreme Court in Regeneron v Kymab, the requirement to enable performance of the invention across substantially the whole claim scope applies to ALL inventions, even those that are allegedly "ground-breaking". Thus, any claim whose literal scope encompasses a substantial number of non-enabled embodiments will be invalid for lack of sufficiency and/or lack of inventive step.
[23:08] schestowitz The question is why should this standard not also apply to NON-literal claim scope (ie equivalents)? If it does not, then a patentee can improve their position by relinquishing non-enabled (or non-inventive) claim scope during prosecution ... and then recapturing that same claim scope after grant by asserting the doctrine of equivalents.
[23:08] schestowitz The ability to relinquish and then recapture insufficient and/or non-inventive claim scope in this way is hardly consistent with the principle of legal certainty for third parties. Indeed, if one accepts that added matter was not the sole reason for relinquishing claim scope during prosecution (as it was certainly not the only ground of objection against that claim scope), then one could argue that is precisely what has happened in the
[23:08] schestowitz Eli Lilly saga.
[23:08] schestowitz "
[23:08] schestowitz "
[23:09] schestowitz Based upon expert evidence, Arnold J concluded, in Actavis v Lilly [2014] EWHC 1511 (Pat), that:
[23:09] schestowitz "If the proposed source of pemetrexed anions is not sufficiently soluble or is not pharmaceutically acceptable for some other reason, then as a practical matter the skilled team cannot make that medicament or product and therefore cannot obtain the benefit of the patented invention. To that extent, therefore, it would not be obvious to the skilled team that pemetrexed diacid would have no material effect on the way the invention works.
[23:09] schestowitz The same goes for pemetrexed dipotassium and ditromethamine".
[23:09] schestowitz Whilst this finding related to one of the so-called Improver questions, it is clear that, at the priority date of the patent, those skilled in the art would not have known whether the alleged equivalent salt forms would work. The patent therefore does not disclose the suitability of those salts for the claimed medical use.
[23:09] schestowitz This ties in with an Article 56 objection during prosecution, where the examiner stated that "When the inventive step is based solely upon the achievement of a technical effect, such as use in combination therapy for inhibiting tumor growth in the present case, substantially all embodiments of independent claims 1, 13 should exhibit this effect".
[23:09] schestowitz When securing grant of their patent, Eli Lilly never demonstrated the relevant technical effect for the allegedly equivalent salt forms. Indeed, the demonstration of that technical effect now rests upon subsequent (and potentially inventive) work conducted by the alleged infringers.
[23:09] schestowitz This is where the key point that I am making comes into play. This is because it is not entirely clear whether it is permissible for Eli Lilly to rely upon that post-filing data to support sufficiency and/or inventive step for the non-literal scope of their patent claims. To answer that question, one needs to decide whether, based upon the evidence, the disclosure of Eli Lilly's patent renders PLAUSIBLE the relevant technical effect (of
[23:09] schestowitz inhibiting tumor growth) for the "equivalent" salt forms. This is a question that, to date, the national courts in Europe appear not to have considered in any depth. Personally, I find this alarming, as it suggests that the patentability standards for non-literal claim scope are much lower than those for literal claim scope ... which simply cannot be right.
[23:09] schestowitz '
[23:09] schestowitz "
[23:09] schestowitz That's an interesting point of divergence between the decisions. The CoA held that "The invention is disclosed in the patent document in such a manner that the skilled person, using common general knowledge, could and also would apply it with other pemetrexed combinations than the claimed pemetrexed disodium".
[23:09] schestowitz And a few paragraphs down, the CoA refers to the decision you cite and the argument made, but finds that even though the therapeutic effects of individual salts were unpredictable, "the skilled person would have a reasonable expectation of finding an alternative salt that is suitable for putting the invention into practice".
[23:09] schestowitz So it would appear that the case was argued differently than before the EWHC or, perhaps more likely, that the CoA came to a different conclusion on the basis of the evidence by concluding that finding another salt was within the skilled person's common general knowledge.
[23:09] schestowitz Even if that finding can be criticized as a factual matter, from a legal point of view your concern was thus addressed by the CoA: if it was common general knowledge to search for equivalent salts, including the salt Fresenius used, then its technical effect must also be plausible. Or am I overlooking something?
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[23:28] *Now talking on #techbytes
[23:28] *Topic for #techbytes is: Welcome to the official channel of the TechBytes Audiocast
[23:28] *Topic for #techbytes set by ThistleWeb!~gordon@unaffiliated/thistleweb at Wed Jan 5 20:55:35 2011
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