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December 08, 2020


Thanks, Kevin, for that pleasant-to-read and detailed report. I have one question for readers.

Some people say that the punishment that the "any person" jurisprudence metes out to The Broad is out of proportion to the "crime" of failing to button down perfectly all assignment of rights and then memorialise them already before the end of the Paris Convention priority year. Where is the harm, brought about by such an oversight, that justifies depriving a party of all its otherwise legitimate rights?

The EPO Board provides, as answer to my question the imperative to discourage shady dealings. Here:

"...sinister circumstances, such as A trying to deprive B of its rights to a patent in another country. This second scenario can hardly be thought of as one that the law should seek to protect,......"

My question: for you, how real is the worry about "sinister circumstances" developing, between co-Applicants A and B of a priority-date-defining patent application, and does it justify depriving The Broad of its otherwise legitimate rights? I for one am not yet 100% convinced by this particular defence of the status quo. You?

Max: I agree that it doesn't seem that "the punishment fits the crime" in this case, but I can understand the risk and the concern. Sometimes it's the case of breaking a few eggs to make an omelet but it might be better to amend the rules to have some opportunity for a savings clause for instances like this one.

Thanks for the comments.

Kevin, the eggs vs omelette point is always interesting. The classic quote is from the visitor to Bolshevik Russia (OK, I can see all the broken eggs, but where's the omelette?).

Here, the severity of the rule fosters legal certainty, a win for the general welfare. Further, it forces concentration from those attorneys performing filing and prosecution duties for clients. Allow them to be sloppy (by writing a savings clause) and likely they will be, increasingly.

Is this why the Board was minded to keep the rule strict?

Well, Max, this has certainly gotten their (and everyone's)attention.


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