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Cure is the New Disease – Poisonous divisionals, red-shirts and plums

DCF 1.0

Watch out for the Gorn (Photo by Ladyheart at Morguefile.com)

“They’re dead, Jim.”

Like the red-shirted crewman in the original series of Star Trek*, the poisonous divisional has apparently breathed its last, though in this case in the comfortable home (for the time being) of the Boards of Appeal in the Isar building of the EPO, rather than a few miles outside of Los Angeles at the Vasquez Rocks where pretty much every episode of Star Trek appears to have been partially filmed.

In this case, the fatal weapon was not a phaser, but a blunt instrument of similar vintage – FICPI Memorandum C (M/48/I) of the travaux préparatoires to the EPC 1973.  The analysis of partial priority in this document was used heavily by the Enlarged Board in G1/15 (see 5.2.1 in particular) to indicate how partial priority was embedded in the European patent system, and how it allowed a resounding “No” to be given to the first question referred to the Enlarged Board of Appeal, repeated in all its tongue-tripping elegance below: (more…)

It’s such a shame for us to part (Poisonous Divisionals)

onion root mitosisUnusually, I’m lost for words.  Not words in general, as you can see, but specific words to describe the phenomenon of self-collision between parent and divisional applications identified in European practice by Malcolm Lawrence and Marc Wilkinson of Avidity IP as the poisonous…  I’d better stop there.  In the light of UK Trade Mark Registration No. 2612561, I think we need to find a new generic term.  “Putrid Priority” is often the real problem but as a term, this doesn’t sound like an improvement.  It would be good to make some reference to the overarching phenomenon of self-collision.  How about “divisional collision”?  Why not – let’s see by the end of the article whether it trips off the tongue well enough as we consider its application in in Nestec S.A. et al v. Dualit Limited et al.