Results EQE 2019 available
The results from EQE 2019 have become available earlier today (18 June 2019) on the EQE webpages (here for webpage, here for table), as a table of marks for each candidate, sorted by EQE registration number.
The document with the results indicates that
"Please note that we cannot accept liability for the information concerning your examination results given [...]. Only results as notified to you in your result letter are legally binding." and that
"The result letters will be dispatched as of 1 July 2019 onwards."
Congrats to all that passed (one or more papers)!
[Update 19 June:] The Examiner's Reports are now also available.
[Update 26 June:] Statistics on the results for all papers, per residency and nationality, are now also available on the EQE webpages,
Statistics (# sitters, pass rates, average, max score) and comparison with previous years
The distribution of marks for the EQE 2019 papers are shown in the graphs below:
Roel, Jessica (graphs)
(c) DeltaPatents
The document with the results indicates that
"Please note that we cannot accept liability for the information concerning your examination results given [...]. Only results as notified to you in your result letter are legally binding." and that
"The result letters will be dispatched as of 1 July 2019 onwards."
Congrats to all that passed (one or more papers)!
[Update 19 June:] The Examiner's Reports are now also available.
[Update 26 June:] Statistics on the results for all papers, per residency and nationality, are now also available on the EQE webpages,
Statistics (# sitters, pass rates, average, max score) and comparison with previous years
The distribution of marks for the EQE 2019 papers are shown in the graphs below:
(c) DeltaPatents
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This comment has been removed by the author.
ReplyDeletePassed :-)
ReplyDeleteSo sad, I failed all of them, it's a mystery how they award marks, was expecting at least 60P in C ... but I got below 40P.. very bad day,
ReplyDeleteFor me too. I got less than 50P (comp fail) with 8 proper attacks...
DeleteHow can that be ?! I had 6 proper attacks + the 123(2) attack and got only 35P. I am very disappointed,
DeleteI have no idea...
DeleteBut I have a possible solution to prevent this situation from occurring: fill a petition to the EPO requesting that the names of the markers becomes accessible on Candidate's request.
This may stop lobbying actions.
You need to remember that there is limited number of points for spotting the correct attacks. Most of the points are given for proper argumentation. A friend of mine had all attacks correct but failed due to insufficient argumentation. Wish you luck at your next attempt!
Delete"insufficient argumentation" sounds very vague. If one finds our the correct attacks combinations it means he already spotted 50% of the problem if not more..
Deletewhy are all you huys here anonymous ??
Hi John,
DeleteI agree with "Anonymous 19 June 2019 at 08:29": the EQE is not about spotting correct attacks, it is about arguing - for any of the papers, and most for B, C and D. That has always been like that, is clear from the Examiner's Reports, and is -in my view- also fully correct: only then can the Committee see that you can apply the leaw to the facts of the case. It is quite clear and consistent from/in earlier exams what type of argumentation is sufficient and what is not.
If in DI, the question is "Is EP-1 patentable?", there is probably not a single mark if your answer is just "yes", even if it is correct - you need to argue why the answer is yes. Same for "A3+A5" in C, or "there is basis in the description" in B for Art.123(2) compliance: you will need to show why.
Further, an exam is not just about spotting problems, but about also abiut solving the problems, and the further problems encountered when solving them...
43 on D....
ReplyDeleteSmells like appeal
DeleteSame for me
Deletedid you also have 43? ddo you think is it wors to appeal?
Delete*worth!
DeleteDo you think an appeal would be worth, I also got 43 in D!!
DeleteI didn't follow discutions of answers so far, is there any emerged matter for an appeal (without taking into account personal situation).
Also 43 points. :(
DeleteWill wait for official answer. But pass rate is high for a D paper. While it was a difficult D paper with a new concept being tested in DII (priority in part G-1-15). So I think marking may already have been tolerant. And appeal chances low.
DeleteMV
one should bear in mind that an appeal fee is 600% of the basic fee, so around 1200€. Thus, one should think twice when filing an appeal.
DeleteQuestion for a Delta patent tutore or anybody here who filed an appeal and was succesfull: do you think is worth an appeal based on the fact that paragraph [002] in DII was not clear ? (Remember: does or does not disclose Cu??, some candidates understood it does and some the other way around...) Shall I maybe buy a coffee machine for 1000€ instead and invest the other 200€ for D-exam next year ?
THANKS FOR YOUR ADVICE!!
Hi John,
DeleteAs long as we donot have the Examiner's Report, one cannot conclude whether any alleged unclarity in the paper could be a basis for an (allowable) appeal. It may welll be that, if the unclarity was acknolewledged by the Committee, the marking already took that into account such that, e.g., marks are awarded for both interpretations.
Further, the issue was extensively discussed on the blogs, so even if you would not be able to conclude from the Examiner's Report that they agreed and took it into account, they probably did (and then probably decided not to agree) - or they did not in general, but made it dependent on the merits of your indiviual answer.
I agree with MV above that the pass rate for D was not at all bad. That may suggest that the Committee accepted alternative answers based on other intrepretations than originally intended - after all, it was not an easy D. But also here, we can only get a picture of we see the Examiner's Report. Note however that the Exam Committees give usually just one "Possible solution" in the Examiner's Report, and do not discuss which alternative answer would have attracted marks and how many. We may thus not be able to get a complete picture from the Examiner's Report. Some clarification may then be given in the meeting between the tutors and the Committees on 18 October - all tutors can submits questions to the Committees in advance. See earlier reports in epi Information 4 of each year for reports on that meeting.
Lastly, we aim to stimulate open discussion on our the blogs. To not hamper that, we try not to take position (so, I will not advice to file an appeal or to not file an appeal). We do however comment on the paper, any comments etc (we also noted the unclaritynin the DII-blog) - so all information to base youw own judgement on is available.
By the way, Art. 24(4) REE provides that: if you win the appeal, you get your fee back; if you withdraw your appeal "[the Board] shall order reimbursement in full or in part of the fee for appeal if this is equitable in the circumstances of the case" (no general guidance is publicly available as to the conditions for refuind after withdrwwal).
I won two appeals, D 20/17, which improved my mark from 46 to 50 for Paper C-2017, and D 11/18 (must be a lot of marks according to the DBA, but they have not published their decision yet). In my opinion, the Examination Board invents artificial reasons to give no marks or even subtract marks from answers different from their favored answer.
DeleteHi Anonymous 19 June 2019 at 11:56:
DeleteYour D 20/17 was published in the EPO case law pages. For your C, the DBA decided:
"3.5 The assertion in the examiners' report that the spring of the corkscrew disclosed in Annex 6 was an obstacle discounting this document as an appropriate starting point for the problem-solution approach had been contested in parallel appeal proceedings.
3.6 On the basis of a summary examination, it is evident from the figure below, filed by the appellant with his letter dated 3 January 2018, that no technical obstacle exists (see also D 14/17).
FORMULA/TABLE/GRAPHIC
3.7 The only reason given in the examiners' report disqualifying Annex 6 as a suitable starting point for an objection of lack of inventive step is therefore not tenable. As a consequence, Annex 6 is reasonably to be regarded as an alternative starting point for an objection of lack of inventive step in respect of the subject-matter of claim 2.
3.8 The examination committee was therefore wrong to award no marks for the appellant's attack against claim 2 for lack of inventive step starting from Annex 6 as the closest prior-art document, for the sole reason that the appellant had chosen what the examination committee erroneously thought to be an unsuitable starting point. This marking contravened the examination committee's obligation to award marks for an attack which, albeit deviating from the expected solution, is logical and, in keeping with the recognised practice, justified. The question of which document is correctly to be viewed as representing the closest prior art or the most promising starting point after consideration of all possible and reasonable approaches, and whether the approach of the examiners' report is to be preferred, is not relevant in this respect.
4. For the above reasons, the appeal against the decision to give the appellant's answers to Paper C the mark of 46 is to be allowed. An assessment of the appellant's answers regarding claim 2 in terms of how many marks they deserve involves a review of the marking on the merits and thus value judgments which, according to the established jurisprudence (following D 1/92, OJ EPO 1993, 357), fall outside the competence of the Appeal Board. Therefore, the Appeal Board has decided to remit the case to the Examination Board with the order to instruct the competent examination committee to undertake a new marking of the appellant's Paper C of the European qualifying examination 2017. In view of the outcome of the present appeal, the appeal fee is to be reimbursed, as that is equitable in the circumstances (Article 24(4), third sentence, REE)."
The Committee/Examination Board then newly marked your paper and got to 50 from the initial 46.
Correct?
(https://www.epo.org/law-practice/case-law-appeals/recent/d170020eu1.html)
Your D 11/18 has not yet been published yet.
Can you briefly indicate what our arguments were?
Did the DBA then change the marking, or did the D Committee need to redo the marking (in part)?
Or was the appeal granted by interlocutory revision under Art.24(3) REE, first sentence (those interlocutory revisions are not pubished)
finally some valuable information, thanks Anonymous !
DeletePlease give some details about your D11/18.
I seriously consider filing an appeal too, maybe even two appeals.
I had in C a similar problem, I combined A4+A2 (I started from A4) and not A2+A4 , this was at least the official Delta version. But I argued why A4+A2 , so there must be a chance . thanks a lot again and also many thanks to Roel for publishing the decision.
by how many marks was your D score improved after the succesful appeal ?
DeleteThanks .
Thank you Anonymous. I have same problem. My novelty and 123(2) attacks are totally correct. For claim 3, I combined A2+A4 starting from A2. It is also correct. For claim 4 and 7, my combinations are correct but only my starting points are wrong.They must have given zero points to both claims. Now, I am also considering to file an appeal after seeing the decision D 20/17.
DeleteHi everyone, how long takes an appeal to get a decision?
DeleteGosh, I was about to inform you, well it took Anonymous until February 18th the next year and he had to go to OPs together with an attorney and so on, so basically I think it's useless for one who actually better invests time in a new try.
DeleteHi Roel,
DeleteYou were correct regarding my Paper C in D 20/17.
D 20/17 was issued and sent to the Examination Board. Let's imagine, absolutely randomly, that the Examination Board had a discussion between themselves and decided that this and other similar decisions were wrong for a some specific reason not mentioned in the Examination Report, not discussed by the DBA, and imho very wrong. After this, by coincidence or not, the Examination Board gave me only 4 marks, despite that I chose an inventive step attack rather than some other attack; this attack was based on a correct combination of three prior art references and relied on two partial problems; the first sub-combination was assessed with good marks for claim 1; for the second sub-combination it was explained how the features of claim 2 could be read on the third reference; and there was formulated the second problem (ok, I am not sure if it was formulated correctly: I just never thought about it for more than 20 seconds). For comparison, in D 14/17 the DBA gave the Candidate at least 3 marks on the spot.
Concerning Paper B in D 20/17, the most important question (difficulty) is addressed there very shortly, without any specifics, because I raised the issue late. However, appealing Paper B allowed me to find out that there was this issue, and my Paper B-2018 will have higher marks thanks to this.
NN
Roel and John,
DeleteWith regard to Paper B-2018, I raised five or six issues, three of them very big. The DBA decided on only one during the Oral Proceedings. This allowed them to write an order for remarking by the Examination Board. They were going to decide on other raised issues later.
I had 35 marks, and requested at least 58 directly from the DBA as the Main Request; or said remarking. The DBA would not remark themselves because I lacked Paper D. Nevertheless, one of the DBA members mentioned that they see that I could have passed Paper B based even on this first issue.
Yesterday I got news about a good Paper D result and wrote to the DBA about the new circumstances. I now need only 48 or, less likely, 50 for Paper B-2018, depending on interpretation of the rules regarding which mark is used for calculation when the appeal (for 2018) is decided after the next exam (2019).
So, now I am waiting for the DBA decision. They probably will not admit my yesterday request; but they may somehow write what they told me (that they see that I could have passed based already on the first issue). In such a case, the Examination Board may re-mark my Paper B better than they did it with my Paper C.
NN
NN
NN
Roel and John,
Deletethe first issue, which I mentioned in the previous comment, is in the following:
How claim 1 without the feature "epoxy resin", but with the feature "a cover layer configured to soften and flow into the gap formed by ruptured metal" should be assessed?
There are two argumentation layers.
According to the first:
The Examiner's Report mentioned that only feature "epoxy resin" could make claim 1 inventive, and that they would give 8 marks for using such a feature in the claim.
However, from some other page, it was clear that the feature "a cover layer configured to soften and flow into a gap formed by ruptured metal" would make claim 1 inventive; but they did not give any marks for satisfying inventive step requirement this way.
Rather, they subtracted 5 marks because according to the Report such a claim would violate Art 123(2) EPC.
That is, a certain amendment, despite being a step in the correct direction, brings negative marks to a Candidate.
According to the second:
The Report attempts to present at least a shorter feature "a cover layer configured to soften and flow" as known from prior art (inherently present in D2). However, there is no rule that a patent attorney writing a response to the EPO should on his own volition assume that some potential claim feature is disclosed in the prior art. Also, this feature is actually absent from D2 (I presented articles with glass which hardens or does not soften when heated for a while).
The DBA agreed at least with the latter statement. Hence, my claim 1 should be remarked as inventive, and my argumentation for novelty and inventive step (and possibly clarity) should be remarked too.
NN
Good Morning Anonymous and Roel.
Deletevery interesting all that, it confirms my fears that this exam is a little torture :)
*When filing an appeal, do you pay two different fees if for two different papers , B and D for example?
*An appeal should be in a specific format or do you draft it with your own words ?
* do you simply specify in the appeal how many more marks you believe you are entitled too or you have to say sentence by sentence where the Examining Comittee was wrong ?
* Will there be 100% OPs where I must be represented by an attorney ? May I speak for myself if there will be an OP ?
Thanks for all infos !
Hi John,
DeleteCheck a few issued decisions on what people have submitted - that will give some info on what to submit as to the content as well as procedure (e.g., acceleration on view of enrolment and preparing for resitting).
If you look for EQE decisions on the Decisions website, you will see appeal directed to more than one paper; I conclude from that that you need only one appeal fee.
But better to ask this, as well as your other questions, to the EQE secretariat by email or phone. Their contact details are on the EQE webpages.
Hi John,
DeleteOne fee, I think it is written in the RPBA or Additional Rules of the Disciplinary Board. I vaguely remember that the second fee was paid, but returned in some published case. It makes sense to include even small issues into the appeal: usually, they return the fee in full. Although, recently there was a decision where a candidate appealed all exams (seemingly without any good reason for 3 of them, and being not very cooperative in the procedure), won only the clarity issue for Paper B, and received one quarter of the fee back.
Of course appeals are drafted differently by different people. You goal is not to specify how many marks you lost, but to show that you (almost surely) lost something. You do not have to have exactly 0 in some cell of your marking list for this (see e.g. D 25/17 for Paper C, issue (b) "Claim 5 and general part of Paper C").
I participated in drafting an appeal where a candidate needed just 4 marks for Paper D-2018 to qualify. It was in a completely different style from mine, and it seemed like a very low chance to me and some other people, but the Examination Board allowed it.
Of course, you can speak yourself during the OP. Any party can, including foreign.
I was not really represented. I drafted all submissions myself. I considered it as a rare chance to do what you want, without any limitation set by a client. A friend of mine, with whom I studied IP law years ago, and some other people, commented on my draft. This friend also came to the OP, and helped me.
NN
Hi NN,
Deletecould you please provide us more details about the OP before the DBA?
Do you have to repeat all your grounds in front of them?
Are the representatives of the Examining Committee present?
Thanks a lot!
Hi there everybody,
DeleteI say one more time thank you for all important details Roel and NN. It's very nice that one "only" has to pay a single fee . I wait for the "legally binding" results ( the official ones on paper) and then I will take a deceision. I will publish here the outcome of my appeal when there will be a final decision (and if it is allowed). Cheers !
Is there any link to DBA EQE decisions ? Or a book ?
DeleteThank you for the info.
https://www.epo.org/law-practice/case-law-appeals/advanced-search.html
Deleteselect decision type D
gets EQE decisions and disciplinary decisions
select last few years
find for example D 0013/17 for A2017; D 0024/17 for B2017; D 0014/17 and D 0025/17 for C2017
BR
Hi Anonymous 25 June 2019 at 12:32 and John,
DeleteFirst of all, you have to request OP if you want it. In some cases, it may be faster not to request it all, but use only written procedure. For example, a candidate appealed just against a penalty of at least 3 marks in Paper B-2018 for drafting a "too broad" claim 1 with a range of Cu between 5% and 25% (or smth like this) instead of 10%-20%. Imho, this candidate had a good chance to win without OP, based on lost D 9/09 for Paper A, but somehow the appeal was not submitted correctly (maybe, it was only faxed), and thus there was no case in the end.
The Examination Board is not allowed to comment (but in one published pre-EQE case they did, with a negative reaction from the DBA), and no one from them can appear, I believe.
Still, a representative of the President or EPI may be in communication with the Examination Board, and thus their comments may reach the DBA. In one case the representative of the President kindly brought a print out of an email from the Examination Board written in September to the Oral Proceedings written in February. This was completely unexpected, and it required a change of course or at least a procedural discussion, so under the time pressure the unrepresented appellant withdrew the appeal, maybe without really good reasons, to get the fee back.
NN
Of course, you do not have to repeat all your grounds. You will have a better idea if you want the OP and
NN
Hi NN and everyone.
DeleteDo you know if the OP may be by videoconference?
Thanks,
KA
Hi KA,
DeleteI would ask the DBA's Registrar :)
NN
Failed A - not sure what went wrong. Thought it went pretty well. I was sure I failed D, but I passed that comfortably, along with B and C. So overall, I am pretty happy with the result.
ReplyDeleteCongrats to everyone who passed, and good luck next time to everyone who did not!
ReplyDeleteMy second attempt on D was successful and I am very happy.
Congratulations! Must be a relief to be done!
DeleteIt appears that part A was considerably easier this year compared to previous years, 80% pass without comp. B appears to have been harder, perhaps owing to the need to present separate problem-solutions for the two independent claims. I passed all 4, thank you Deltapatents for great C and D methodology courses!
ReplyDeletePassed all 4 :-)
ReplyDeleteCompensable fail in B though - but actually I was sure that I would be sitting B again next year.
Hi all, I got an email from secretary regarding "entry on the list",
ReplyDeletedoes anyone (Roel) have information concerning "certificate from employer", is there a form...?
See EQE website - all information is on there.
DeleteI haven't checked the results yet...I'm out of the office and I don't remember my registration number...but I received an email about the "Request for entry on the list of professional representatives".
ReplyDeleteCan someone tell me if it is sent by default to all candidates or only to successfull ones?
I don't know for sure, but I failed A (and passed the rest) and I did not receive such an email. So, best guess is that you passed, in which case congratulations!
DeleteYes by default! Good luck
Deletetelephones with the secr. today, was told that only successfull.. cheers
ReplyDeleteThe Examiner's Reports are now also available on the EQE website
ReplyDeleteSee https://www.epo.org/learning-events/eqe/compendium.html
it seems they've not considered at all the matter of lack of clarity of para [002] of DII
DeleteThis comment has been removed by the author.
DeleteIt’s scandalous. EP-F2 does not enjoy priority for “metals” but only for Copper. I am already preparing my appeal.
DeleteThis comment has been removed by the author.
DeleteIsn't that exactly how (partial) priority works? The species does not provide support for the genus. Maybe studying the EPC will be more useful than fighting Enlarged Board decisions.
DeleteHi there.
DeleteThe Examination Comittee ignored the fact that paragraph [002] is in fact unclear. The Examination Comittee must revise all papers where candidates made the same assumption below:
Do you see any difference among “the effect of increased energy storage” and “improving energy storage”?
yes or no ?
According to [002] first sentence, if you insert nano particles of any metal in the shoe sole it means you improve the energy storage, in other words you increase the energy storage because that energy stored in the shoe sole may either be stored more than 0% or not be stored at all. You can't improve the energy storage by decreasing the amount of energy in the shoe sole, it's ilogic. If you put one single nano particle of no matter what metal in a shoe sole then that shoe sole will have an improved (=increased !) energy storage capability ( for instance 0,0000000000001 but in any case > (more than) zero). This is how I read paragraph [002]. I think each of us who feels adversely affected must file an appeal. I am sure the DBoA will carefully check it out.
I would add:"... all metal nanoparticles modify the foam
Deletestructure of a shoe sole, thereby improving energy storage of the shoe sole"...
This implies nanoparticles of any metal AND any size
That first sentence says nothing about the content of EP-F1 and 'during my research' appears to cover the full research period that continued after filing EP-F1. The content of EP-F1 is very clearly described in the last sentence of [002]. Together, [002] and [003] make it very clear that he first discovered and claimed copper and only later metal in general.
DeleteAppeal if you want to, but there may be better ways to spend your time.
I am not ecouraging anyone to file/not to file an appeal; but IMHO improving energy storage and increasing energy storage are different effects; let's say increasing = related to being able to store a larger amount of energy, improving =related to 1)the amount of energy to be stored or 2)for how long that energy is stored or 3)how this energy is returned to the runner (as per par [002] D2 seems to be quite logical "Such shoe
Deletesoles return energy to the runner."); but then, the concept of increasing is detailed in : copper nanoparticles up to 40 nm increase energy storage of shoe soles by 200% compared to soles without nanoparticles.
Hey IJ,
Deleteone should read the paper "as is". you make assumptions about what improving and increasing "could" mean. There is no word in the paper about "2)for how long that energy is stored or 3)how this energy is returned to the runner". In the paper it is only specified that the energy storage is improved and , indeed, that the stored energy is returned to the runner. But "improve" is linked clearly only to "increasing" [the energy amount]. Later on the inventor has found out that this improvement using all metals is "at least 40%". So, when he was doing his research he noticed that there is an improvement (=an increase) but didn't know the percentage of this improvement (=increase).
Anybody else here who believes that "improving energy storage and increasing energy storage are different effects" ??
In any case, the Examination Committee should have clarified the matter in the report (for example giving the explanation you have given here). It sounds strange that nobody of the examiners has noted this problem, nor that has heard some rumours
DeleteFor what it's worth, I made the same "mistake" as John E. Walker and still managed to pass D. If your thought process is made clear and the analysis and suggestions are correct based on your understanding then your marks should not be effected too negatively. Of course I don't know the breakdown of my marks.
DeleteIt is possible that John E. Walker and I are in a small minority of people and so the examiner's felt it not worthwhile mentioning this issue.
Hi Jay, did you pass with above 50 or with a compensable fail ?
Delete@John, @IJ I think you are paying far too much attention to the technical effects mentioned in [002] and if one way of wording those effects would mean exactly the same as another wording. The words you discuss are only in the client's letter. Not in EP-F1.
DeleteYou get priority for features, not for effects. [002] and [003] are very clear about what features are part of and claimed in EP-F1 (Cu) and EP-F2 (metal).
Above 50 (albeit only just). When I get the breakdown of marks, I will post back with a better understanding of how they were awarded.
DeleteAnonymous20 June 2019 at 12:43
DeleteYes, you are partly right. But how can one "describe the effect of increased energy storage" without specifiying features? it is implicit that the description of the effect must involve some features. But which features ? the inventor made a reasearch and he arrived at the conclusion that metal nano particles improve the energy storage in shoe soles. So it's clear : you put a nano particle and you have a better energy storage. You put Copper and you have 200% more energy storage compared to soles without any nano particles. It is not specified that the "increase/improvement" would mean different things, like IJ said above: "*for how long that energy is stored or *how this energy is returned to the runner".
Therefore I draw the conclusion that [002] is unclear because lets one understand that "improve" is equivalent to "increase" but later in [003] arrises the contradiction that EP-F2 is not entitled to valid priority for all metals but only for Copper.
and so on...
must work now, I am eager to see also an opinion of a tutore here :), talk to you tomorrow..
I also missed the partial priority between EP-F1 and EP-F2 but still passed paper D reasonably well (63 marks).
Delete-Flora
John said "The Examination Comittee ignored the fact that paragraph [002] is in fact unclear."
DeleteBut how does John know?
I agree [002] is unclear in this respect. Also, the Examiner's Report does not make any mention of this. But you cannot conclude from this that the Committee ignored it: the Committee may have been aware and may have awarded marls if you used that interpretation for an alternative answer. Jay's comment suggests they indeed did. But I read somewhere that the Committee usually donot comment on alternative answers in the Report. It would have been nice if the Examiner's Report told us, so we donot need to speculate on how they dealt with it. What does DeltaPatents think?
L.
Anonymous20 June 2019 at 19:52
DeleteIf this is a fair exam and the Examining Committee is transparent, then why do they not say a word about it ? You know what? I think the only correct solution is the one I suggest: EP-F1 discloses all metals and, like IJ said above today "... all metal nanoparticles modify the foam
structure of a shoe sole, thereby improving energy storage of the shoe sole"...
This implies nanoparticles of any metal AND any size.
When the DBA will aknowledge this simple fact they will advise the EC to mark all papers again. It will be a lot of work for the EC.
There are no two "alternative" solutions but only one.
The effect of energy storage is caused by metal nanoparticles of all sizes.
Increasing and improving the energy storage is one and the same thing
I agree with L. (Anonymous 20 June 2019 at 19:52) that there could be marks for alternative answers, and that the pass rate suggests so (As some indicated above and some candidates told me, quite good scores were achieved even when partial priority was not recognized – see e.g. Flora [Anonymous20 June 2019 at 17:24) who achieved 63 marks without partial priority between EP-F1 and EP-F2]).
DeleteBut we do not know if, how and what, as the Examiner’s Report for D does not indicate any specifics - as in earlier years, it just gives one “Possible Solution”.
At the Tutor meetings, the D Committee always indicates that there can be marks for other answers as well, similar as for A, B and C. But unlike the Examiner’s Reports for A, B and -for a limited extent also this year’s C- which provide also some alternatives and the effect on the marking, the Examiner’s Report for D does not. I agree with John (E. Walker 20 June 2019 at 21:15) that more transparency as to the marking of paper D would be very welcome, preferably to a similar level as for A and B. As L said: "It would have been nice if the Examiner's Report told us, so we donot need to speculate on how they dealt with it".
It would be appreciated if the D Report would also do so to clarify what range of answers were acceptable, to allow candidates to better understand what is expected from them when preparing for D - especially as only then failed candidates can understand better why they failed. Also, it would be very welcome if the Report could comment on different possible interpretations and alleged unclarities, and the effects on the marking - such differences (e.g., par [002], claim 1, see discussion on DII blog) may be identified from blogs and other input as well as from candidates’ answers.
Comparison of Examiner’s Reports for the various papers.
DeleteAll Examiner's Reports open with "The purpose of the present examiners' report is to enable candidates to prepare for future examinations (cf. Art. 6(6) of the Regulation on the European qualifying examination for professional representatives)". However, the style and detail level of the reports is very different for the various papers, especially with respect to being able to understand how alternative/ different answers are marked.
For A, see page 6-7, par 3 of the Ex Rep for alternative Solutions. For A, detailed marking info is given which allows candidate to quite well understand, in detail, how the marks were awarded to his/her answer.
For B, page 10ff describes how claims differing from the Example Claims are evaluated in par 4. As with A, detailed marking info is given for alternative claims / claim features as well as alternative reasoning in par 4-5.
The Examiner’s Report of C has a brief comment and example: see page 3, bottom par which mentions (just) one example of an alternative attack.
The last few years, the D Examiner’s report did not include a comment like “alternative answers marks may have attracted marks according to their merits”. However, at various tutor meetings, the Committee indicated that this is obvious from the word “Possible” in the “Possible solution”.
In view of “The purpose of the present examiners' report is to enable candidates to prepare for future examinations (cf. Art. 6(6) of the Regulation on the European qualifying examination for professional representatives)” (see opening paragraph), more detail in how marks are awarded to the Possible Solution as well as to alternative answers for paper D would be much appreciated, especially in DII.
E.g., in this D exam, an indication as to how many marks were lost for frequently made errors or differences in interpretation, and the effect on the rest of the paper, would be very much welcomed; for example, a different interpretation of par [002] (“the effect of increased energy storage” without explicitly being described to which subject-matter this effect related); not discussing partial priority for the various claims before and after improvement where that was required; not discussing announcement B.
Hi @Jay. Could you please give us a review of your breakdown of marks in question 1a of DII?
DeleteHi Anonymous 3 July 2019 at 10:24.
DeleteI got 7/17 for question 1a of DII and 29/60 for DII as a whole. It seems DI is what carried me over 50.
Jay
Thanks Jay. Thus it seems they've not considered at all this kind of solution, even if well substantied (I supposed, by saying EP-F1 discloses all metal and sized nanoparticles).
Deletecongratulations for your pass
Well in this case an appeal may be an option ,but ...AFAIK in 2006 there a case where the paper itself had some problems and extra marks were awarded; it woul be nice should the committee proceed as they did back then in the view of the alleged lack off clarity on D2, does this seem feasible?
ReplyDeleteHope so, but may some appeals are necessary to bring this clarity problem to minds of examiner's!!
DeleteNot a single word on this clarity problem in the Examiner Report. How can we find out if marking took it into account? Important to know for all that sat the paper. Important for preparation for next year. So they must give information about the spotted problems, how they deal with unclarities in the paper and how a candidate must deal with that. The Report says that its purpose is is to enable candidates to prepare for future examinations!! How can I preprare if information is not complete?
DeleteJL
Hi JL,
DeleteI will put the question to the Committee for the Tutor meeting on 18 October in Munich.
More information on answers deviating from the (single presented) Possible Solution would be very welcome indeed for all candidates, pass, comp fail or fail, as well as candidates preparing for later exams.
The D Committee has however, at earlier occasions, not been willing to give details on the marking or on specific items missed or alternative answers.
Rgrds, Roel
Thank You Roel for the time you spend to explain us these kind of things. Let's imagine one files an appeal and DBA decides that he is right and that the whole "possible model solution" is wrong (in view of wrong interpretation of [002]). Are then all 1000 papers going to be marked again ? (no, I didn't smoke anything recently:)) did anything like that already happen in the EQE history ? Thanks !
DeleteHi John,
DeleteEach EQE decision is an individual decision in respect of an appeal filed by a specific candidate - each decision in principle gets final if no appeal is filed within the time limit by the candidate concerned. As far as I know, main exam appeals have never led to decisions or marking being changed for candidates that did not appeal for that paper (except C 2007). The Pre-Exam appeals have been an exception: there, in the last few years, appeals have often (but probably not always) led to the correction of the marking for all candidates where it changed from fail to pass - I think what plays a major role there is that, in view of the marking scheme of the pre-exam which leaves no discretionary power to the marker/ Committee/ Board, no extensive re-marking effort is needed there. In main exam maarking, the marker/ committee has quite a lot of discretion and the DBA does in principle not review or redo the marking - only if something is really wrong: see the consistent case law from the DBA on that (although the most recent decisions seem to suggest that there may be a bit of a change, such as the ruling of the DBA that categorial 0's for inv step attacks based on a wrong closest prior art are not allowed, and even with a wrong CPA the rest of the attack needs to be marked according to its merits).
Unfortunately, EQE appeals are only published if the DBA made a decision. So, if interlocutory revision by the Examination Board was succesful or if an appeal if withdrawn by a candidate after the DBA's preliminary opinion in an attempt to get some of the appeal fee back, no information becomes public on those appeals (also not when asked about it at the Tutor meeting). With only very few appeal decisions being published, there is thus not much information publicly available to be able to identify when an appeal can be succesful and when not. The limited competence of the DBA seems a hurdle; but the Examination Board's competence in performing interlocutory revision may be wider.
In this D, I would assume (but have no evidence (yet)) that an answer based on "the other reading" of par [002] would also be able to get quite some marks. But as said, I do not know, it is just an educated guess. A side-effect of a different reading may however be that some issues are no longer accessible - e.g., the priority analysis and hence the patentability analysis and the need/options for improvement may be much effected by a different reading, and that may (I guess) lead to more loss or marks than the direct effects of the different reading.
Any information on how many marks people got for answers different from the Possible Solution is very welcome - when you get the results letter, you get the marks for each question - that may shed some more light on the question.
To decrypt the secrets of the Chinese terracotta army seems more straightforward than understand why you fail a D paper.. for me things are clear enough now, in fact it's clear that is unclear and that the only chance to get some light in the matter is to bid farewell to € 1200 and try an appeal. it's probably worth a try .
Deletehi everyone,
Deletedoes the month for filing the appeal start from the date indicated in the letter I will receive at home?
probably
DeleteRegulation on the European qualifying examination for professional representatives
DeleteArticle 24
Appeals
(2) Notice of appeal including the statement setting out the grounds for appeal must be filed in writing with the Secretariat within one month OF THE DATE OF NOTIFICATION of the decision appealed against. Notice of appeal shall not be deemed to have been filed until the fee for appeal specified pursuant to Article 17 has been paid within the period of one month specified above.
These results are reliable or we have to expect surprises in the letters?
ReplyDeleteI have never heard of an actual result being different from what is on the list.
DeleteHere is my expectation/reality table for the papers:
ReplyDeletePaper A: I got it almost as low as my paper D result, while I was thinking that this was my best paper A attempt. The funny thing is I still did not understand how they made those deductions after the Examiner's Report.
Paper B: Probably got what I expected, no surprises.
Paper C: I got lower than I expected, considering that I only missed one attack, and I was under impression that my argumentation was ok.
Paper D: I was really anxious about it, since I was really anxious as it was my first main exam and I made very stupid mistakes during the exam. Got more than I expected!
All pass! Congrats to who passed, and best of luck for the unlucky ones for the next year!
BE
Results were sent as of July 1, 2019.
ReplyDeleteYou can also find your letter regarding the exam from the Examination Board in the "My Examination" section of the EQE web portal.
BE
Thanks for informing us!
DeleteIn view of other posts: any deviations from the earlier list of results?
Hi, Anyone out there who (like me) in Paper C used the intended documents (A2 + A6 for claim 4, and A2, A6 + A5 (partial problems) for claim 5) for an inventive step attack against claims 4 and 5 respectively, but chose the wrong closest prior art according to the Examiner's report? If so, did you get any points for your alternative solution? I got 0 points for both claims and 40 in total. I am now wondering if filing an appeal would be an option based on unfair since Annex 2 is reasonably to be regarded as an alternative starting point for an objection of lack of inventive step in respect of the subject-matter of claim 4 and 5, ie. along the lines of D 20/17. I would only need 45 points in C to pass the full EQE
ReplyDeleteHi TF, Same situation here. Used the same documents as in the Examiner's report against claims 4 and 5, except that I started with A2 as closest prior art against both claims. 0 point awarded for both attacks. Good luck with your appeal or for next year!
DeleteErrrrrr
ReplyDelete37/60 DII and only 6 DI because of lack of time.
someone knows if it is possible to obtain some extra time if mother tong is not FR/DE or ENG ?
thanks,
AK
Time is also short with mother tong FR/DE or ENG. Time is important ingredient in any exam. For EQE, everybody already got 30 minutes extra from the Supervisory Board (https://www.epo.org/law-practice/legal-texts/official-journal/2019/etc/se2/p41.html). Why do you think you should get even more?
DeleteEN
Hi EN, it is established that anyone would read, think and writ faster in his mother tong than in any other language. If you are frech you should be faster in french than in english or German.
DeleteI have heard that 30 min extra time can be added, but never asked for.
I admitt that time is also short for native FR, DE and ENG, but it is shorter for others.
AK
You may ask to sit the paper on any official language of one of the contracting States.
DeleteIf you wanna bring up this language isu, this blpg is pro bably not the right forum. One could consider that the EPO offficial lagnguages are En, Fr and De, so as long as the EQE paper is in any of the three, it is fully within the system. One could also consider that Art.14(4) applies and allows one to answer within the time limit to do the exam if one does it in his/her own language if an official language from an EPC state - which the EQE rules aso allow. SO one may challenge whether there is any room for giving another time limit for answering within a wider time limit if using another language that is an admissible non-official EPO language... So I agree with EN of 2 July that it is difficult to argue why it should be allowed to get more time (also in view of the fact that 30 min more are already awarded in view of the possible disadvantage) as EN also indicated. Sorry to those to who it may be of relevance... I am afraid you will need to bring up new arguments if you want to be succesful with any case or any appeal in view of language (dis)advantages.... Also (althlugh I mustbadmit I did not check), I think the issue was already subject to previoud appeals.
DeleteHello, me again.
DeleteIs there anywhere in the Rules stated that candidates are supposed to read the papers "as is" and that candidates are not supposed to interpret the text of the paper ?
I have a little problem understanding [003] in the D paper.
In [002] is stated : "I found out that copper nanoparticles up to 40 nm increase energy storage of shoe soles by 200% compared to soles without nanoparticles. Copper is a metal."
Later in [003] the inventor says: "I found out that all metal nanoparticles increase energy storage of shoe soles by 40% compared to soles without nanoparticles".
These two sentences are contradictory because both apply to copper, copper being a metal.
In English "by 40%" means "exactly 40%" and "by 200%" means "exactly 200%".
Is there any English native speaker around here ?
Roel, do you see my point ?
See e.g. D 25/17 regarding different interpretations of the Paper.
DeleteAlso, see D 10/11 addressing in reasons 5 -8 the role of assumptions, and which assumptions are preferred: "11. It also does not appear that the "preferred" assumption, i.e. that Annex 5 did enter European phase and was therefore prior art, would have been at odds with the facts presented in the examination paper, and this was also not argued by the appellant. The appellant merely stated that there was no decisive information in the examination paper itself whether Annex 5 was usable or not. In this manner the choice of the Examination Committee, as reflected in the Examiner's Report, to expect a possible solution on the basis of the "preferred assumption" is not erroneous, even less manifestly erroneous. It is certainly not less convincing than the solution chosen by the appellant, see also point 9 above".
For another example, D 10/11 says in r. 12 "Based on the totality of the facts as laid out above, the examination paper was in fact not ambiguous (in the sense of "contradictory or unintelligible", see D 13/02 of 11.11.2002, point 4 of the Reasons) but at most contained less facts than theoretically could have been possible".
One of the issues in D 11/18, which I brought up, rests on that Paper B-2018 was contradictory.
NN
Hello John E.,
DeleteIPREE 22(3): Candidates shall accept the facts given in the examination paper and limit themselves to those facts. Whether and to what extent those facts are used shall be the responsibility of each candidate. Candidates shall not use any special knowledge they may have of the technical field of the invention.
JL
Thanks you both, that was what I was looking for . Do you know whether they would award marks if the paper's ambiguousity would cause candidates loss of valuable time ? (any decision?)
DeleteI lost a lot of time by trying to figure out the logic line of "If the size of the metal nanoparticles is up to 80 nm, energy storage will be increased by 100%". Do metal nanoparticles of, let's say, 50nm cause energy storage of 100%? Or more ? How about metal nanoparticles of 67nm ? according to the "facts given in the examination paper" all metal nanoparticles bring an energy increase of 100%, neither less and nor more.
Wouldn't have been much easier to draft a clear paper by formulations "at least 100%", "at least 40%" and so on ?..
Hi John, from earlier information at the tutor meetings, I think the procedure is more or less as follows. Before the exam, the paper is tested with guinea pigs from other exam committees to identify possible unclarities or ambiguities. The paper is then adjusted if needed. After the exam and prior to the real marking, the Committees do a pre-marking on quite a sizeable subset of the papers. If they then spot unexpected answers based on an unexpected interpretation of the paper, which they also consider fair even though not as what they planned, they adjust the marking table and/or decide to also award a certain number of marks for the acceptable unexpected answers. So, if there is an ambiguity, this scheme can take that into account in the marking. The marking table is sometimes also adjusted if the majority of the candidates missed an issue completely (e.g., in 2010, one of the key states in the paper was not yet an EPC state when the EP application was filed - hardly anyone noted that and almost all candidates considered the poatent valid in that state - the marks were then tuned down and reallocated to oterh parts of the DII). Also the Examination Board has a review role. Whether they have identified any ambiguity in [002] from the pre-marking and/or from discussions in blogs, and did a "correction" in view of that, I donot know - they may give some information at the tutor meeting in October. But maybe some candidates that used the unexpected interpretation/understanding actually achieved quite high scores for the as-is patentability, which may lead to a prelminary conclusion that they did "correct" for such interpretation? Noone reported so yet on the blog (unless I overlooked it). What is your conclusion from your own answer?
DeleteBy the way, nothing is perfect, so perfect exams do not exist, and even if they would, there is always candidates that read something different in the paper than what it says, even if there is no ambiguities. So when sitting the exam, a candidates needs to be prepared to run into a few things that are unclear to him/her. It is not of help to you now... but if you woulkd need to resit, keep in mind that you can not afford to stand still at a problem too long, and you need to continue to other parts of the paper where you can score marks.
Also see my earlier comment above: "Roel van Woudenberg 21 June 2019 at 12:10"
DeleteGood Morning Roel and everybody,
DeleteThe conclusion from my answer is that NO, different answers were
not considered. In fact, there were marks in my case but probably
for statements that would have been OK with both interpretations of par. 002.
Does anybody play chess in here ?
My feeling about this exam is like when you play chess but the chess figures are not correctly shaped. Thus, one should first distinguish among the chess figures :is it a pawn or maybe a bishop?. No matter how good your knowledge about chess
are, you will lose the game because you considered the bishop to be a pawn. Or at least you lose time to figure out what figure is what, you get time problems in the end and make a very bad move. It was my case, I did a couple of really stupid mistakes but only because of time pressure at the end.
My feeling is that who drafts the exams is not always an English native speaker. From a technical point of view the sentence "If the size of the metal nanoparticles is up to 80 nm, energy storage will be increased by 100%" is a total non sense. If Jelle, your boss, will inform you about a salary increase "by 40%" then it will be 40% and not 41%. You'll say: yes, but oh John, come on, you see what they meant.. , they actually meant "at least 40%" otherwise it would make no sense. And you are right. But I lost time and failed the exam because of that. It's not fair to fail an exam because the text of the paper is not 100% clear. A candidate needs time during the exam to understand the paper. My feeling is when they drafted the exam, they firstly drafted the solution (we want to hear that from candidates) and then they tailored the text of the paper to correspond to the answer. I am not sure whether there were English natives drafting this paper D. One should have noticed that "by 100%" is a fixed value and this same unique value is linked to a range from 0 to 80nm. The candidate should have made an assumption in hindsight of the answer.
Sorry John, I have no difficulty to find compatibility between:
Delete"I found out that copper nanoparticles up to 40 nm increase energy storage of shoe soles by 200% compared to soles without nanoparticles. Copper is a metal" in [002]
"Afterwards, I found out that all metal nanoparticles increase energy storage of shoe soles by 40% compared to soles without nanoparticles. If the size of the metal nanoparticles is up to 80 nm, energy storage will be increased by 100%, and if the sole comprises copper nanoparticles up to 80 nm, energy storage will be increased by 150%"
I read it as "copper is special, and gets this increase; (other) metals get different increase deoending on their size" To consider the first sentence and the second sentence in [003] conflicting seems to me based on a very strict and literal reading, rather than on accepting the facts as they are presented, as interpreted by someone with a technical background (EQE requirement):
- copper smaller than 40: + 200% (so great!)
- all metal: +40% (or more for the specific size ranges mentioned) (so, not so good if no specific sizes chosen)
- metal (execpt for copper) smaller than 80 nm: +100% (quite OK)
- copper smaller than 80 nm (and larger than 40 in view of [002]): +150% (not too bad either, but the smaller the better)
Whether this is technically "total non-sense" (to use your wording) or not does not matter, as you need to accept the facts as they are presented.
It may have been technically more sensible if it would have said "within 40 to 80 nm increase by up to 150%" or "within 40 to 80 nm, increase in a range of 150 o 200 degrees" or so, but whether that is really clear and suitable for succesful novelty and inventive step... discrete is always nicer to argue than continuous...
So I am sorry, I donot think the phrasing is such an obvious and serious error that the DBA would allow you an appeal based on it.
By the way, in chess a pawn can suddenly become a queen... a bit a too obscure set of rules for paying games to serve as a basis for challenging an alleged unclear definition of sibject-matter ;)
Ok, I still have no final DBA's decision and marks for D 11/18, which I have wun, and thus I consider appealing Papers B and D - 2019, from 19 and 55 marks respectively.
ReplyDeleteWhat was easy to spot:
In B, I got 0 for claim 2 because I used a broader temperature limitation "the salt composition has a melting temperature, which is suitable for cooking" than the solution in the Report.
The Report says that this is 0 marks:
"4.2 Deductions for non-compliance with the EPC
Marks were deducted if, in addition or in substitution of the expected amendments, the claims were modified so that a new deficiency was introduced.
A) Claim 2 based on the broad range of 110°C to 350 °C
Claim 2 as in the expected solution, wherein the range of melting temperatures was defined from 110°C to 350°C was considered not new over D3 (for the same reasons as in point 3.2 of the communication) and thus attracted 0 marks overall."
In my opinion, there is a good chance of winning the appeal here. I would try to argue the following:
Firstly, it must be against the rules to take away 8 marks which had to be awarded for satisfying Arts 84 and 123 (see item 3.2 in the Report) for the feature "the empty space is dimensioned to allow the salt composition to expand upon melting".
Secondly, it must be against the rules to award 0 or negative amount of marks for the attempt to correct the client's amendment (the range of melting temperatures of 120°C- 350°C, conferring novelty over D2 and D3, but violating Art 123(2)), especially when the number of violated Articles is the same as before.
Thirdly, I would try to argue, as in my Paper, that D3 does not disclose such a feature and claim 1, i.e. that point 3.2 of the communication is incorrect.
NN
Agree with you on the second point. In the past B papers (see for example 2018) a 123(2) violation (in 2018 was the content of Cu) was penalized by deducting 5 points (not all the points) from the best solution.
DeleteIn addition, considering also the amendment arguments, a 123(2) violation was penalized by deducting an overall of 13 points, while in 2019 an overall of 17 points.
I do not think that I have an Art 123(2) violation. At least, the Report does not say anything about it. Rather, the Examiners must think that my claim 2 lacks novelty over D3. So, according to them I corrected two Art. 123(2) violations and Art. 84 violation, but added one novelty violation, and thus deserve 0.
DeleteBut I even disagree that my claim is not novel, and in D 11/18 I could prove that D2 does not disclose some feature, so there is a chance to do the same with D3 here.
NN
Here is a further appeal ground for Paper B.
ReplyDeleteI have not included melting step into claim 1 and therefore got 0 marks for it. According to the Report, the reason is that a claim without such a step would lack inventive step over a combination of D1 and D2.
However, I have a feature "characterized in that the salt composition has a melting temperature, which is suitable for cooking, wherein the heat storage unit further comprises an empty space dimensioned to allow the salt composition to expnad upon melting" in my claim 1.
The Report, page 3, acknowledges that the feature "an empty space dimensioned to allow the salt composition to expand upon melting" is not disclosed in D2. D1 of course also does not have this feature. Hence my claim 1 actually includes inventive step over the combination of D1 and D2.
NN
If your salt does not melt, the feature of the space is useless.
DeleteWhat kind of inventive step is provided by this feature?
This seems to be a strange argument, not in line with the EPC.
DeleteThe feature provides the effect that it allows using the claimed process while conveniently, without tension, storing the heat of fusion even in conditions if solar radiation is sufficient for melting the salt.
Imho, according to the common wisdom, claim "riding a car" is inventive with respect to the prior art disclosing only riding e.g. a bicycle if the car is new and inventive. This does not depend if you ride it now with a high speed or a bicycle speed at the moment. The method "riding a car" is more versatile so to say.
NN
Good luck with your appeal, especially in view of par.5 of the description, clearly stating that the invention is about cooking with heat storage based on the phase changing principle, and par.4 telling you that heat is stored only during the melting.
DeleteWithout melting you can't cook during the night or when there is no sun, which was the problem to be solved.
So, my claimed method can be used for cooking during the night by using melting. Or it can be used by cooking during the day in the good old way without melting, or in the new way with melting. The prior art does not teach
Deletesuch a versatile method and does not provide such an effect.
Dear Roel and Joeri, can you please comment on arguments of the Examiner?
NN
Hi NN, I agree with "Examiner 3 July 2019 at 23:17" that melting because of heating by the sun is a key element of the invention, the way it is presented but also if you want to argue its inventive step...
DeleteHi Roel, thank you for your comment. Still, can you maybe clarify the issue further?
DeleteAccording to Guidelines F-IV, 3.8 "No separate examination for the novelty and inventive step of a process claim for producing a product is necessary, provided that:
– ...
– the product claim is patentable.
This also applies in the case of a claim for the use of a product, when the product is patentable and is used with its features as claimed (see T 642/94). In all other instances, the patentability of the claim referred to does not necessarily imply the patentability of the independent claim containing the reference."
In English there was a case T 1144/07 () of 9.9.2009. It says in r. 2.13: "Independent claim 11 does not include a specific reference to claim 1. However, it defines a method of making chopped fibre comprising steps which necessarily include use of an apparatus having, either by explicit definition or implicitly, all the features of claim 1. The inclusion of all the features of the product claim 1 was also not a matter disputed by the appellant. Since the subject-matter of claim 1 is found to involve an inventive step, and since its subject-matter is included within claim 11, the subject-matter of claim 11 therefore also involves an inventive step.
The appellant argued that apparatus features should not be considered when assessing inventive step of a method claim. The Board however finds this argument unconvincing because the method steps in the subject-matter of claim 11 do not stand alone but instead require use of the apparatus, so that such apparatus features cannot therefore be ignored. In arriving at the subject-matter of method claim 11, the skilled person must de facto use inventive skill if subject-matter is to be arrived at which includes subject-matter which has already been found to involve an inventive step (i.e. that in claim 1). This approach is also in accordance with established case law of the Boards of Appeal (see e.g. T 642/94, Reasons 4.9)".
Also, r. 4.9 of T 0642/94 () of 19.3.1996 cited above states:
"4.9. Der auf die Verwendung eines Rohrstopfens zum Verschließen eines defekten Wärmetauscherrohres gerichtete Anspruch 8 (erteilter Anspruch 11) ist auf einen der Ansprüche 1 bis 7 rückbezogen. Die Patentfähigkeit des Anspruchs 8 stützt sich auf diejenige des Anspruchs 1, dessen gesamte Merkmale Anspruch 8 als Verwendungsanspruch zwangsläufig enthält. Dieser Anspruch hat somit ebenfalls Bestand".
Please see, for example, how short claim 11 was in that case:
"11. Verwendung eines Rohrstopfens (1) nach einem der Ansprüche 1 bis 7 zum Verschließen eines defekten Wärmetauscherrohres (2)."
So, in my claim 1 in Paper B-2019, the combination of device features, by which the claimed method is performed, is not derivable from a combination of D1 and D2 at all. How then my claim 1 can lack an inventive step over a combination of D1 and D2?
NN
A combibation of features that is not derivable from a combination of two documents does not need to be inventive. E.g., if I combine parts from an airplane and leaves from a birch tree, I get a combination that is not known (or let's assume so). But... why would it be inventive. It is not if it is just an arbitrary combination.
DeleteFurtherm you refer to use-claim case law, but you have a product claim. A use-of-the-product claim is new if the product is new, but as product is not new because it can be used differently ("use of a product for killing an insect" is very diffent from "a product for use as an insect killer"). See G 2/88.
Please present your problem-solution: what is the CPA, what is the problem solved by your invention/ the effect your distonguishing feature has, and is that problem/the effect shown in your application?
The description at Par.3 mentions a drawback of storing energy by just heating.
DeleteThat's the way you store heat on your method claim.
Your method that doesn't define a meltin step and thus it achieves exactly this drawback.
It's very questionable that your method will allow to cook at night, especially in view of par. 4 and 5 of the description.
Thus it s very questionable that your method includes the features required to solve the problem towards which the application is directed.
Said that, I wish you good luck with your appeal....
I argued that your feature was not essential, didn t include it in claim 2, and I was sure that would have cost me the exam... Still I managed to pass
Hi Roel, thank you again.
DeleteFor convenience, here is my claim 1 in full:
1. A cooking process including the steps:
providing a heat storage unit (3);
concentrating solar radiation (12) onto the heat storage unit (3) to heat it; and
cooking food (8) placed on the heat storage unit (3).,
the process characterized in that
the heat storage unit (3) contains a salt composition (6),
and the salt composition (6) has a melting temperature, which is suitable for cooking,
wherein
the heat storage unit (3) further comprises an empty space dimensioned to allow the salt composition (6) to expand upon melting".
1. Hence, my claim 1 is a method claim, which recites product features, with which steps of the method are to be performed. Are you in agreement with my interpretation of the Guidelines and case law that if this combination of product features is novel and inventive over D1 and D2, then the method is automatically novel and inventive over D1 and D2?
(I mean that my claim is like "a method ... comprising steps which necessarily include use of an apparatus having, either by explicit definition or implicitly, all the features of [[claim 1]] [the product novel and inventive over D1 and D2]", see T 1144/07 of 9.9.2009, r. 2.13 above).
Indeed, already the step "providing a heat storage unit (3)" in my claim 1 necessarily includes use of the storage unit.
(Also, please see that neither "purely method" steps of claim 8 nor "specificity of the use" in claim 11 had to be analyzed by the Board in r. 4.9 of T 0642/94 of 19.3.1996 . It was sufficient that some process, involving some use of Rohrstopfens, had to be made with the novel and inventive Rohrstopfens).
2. Can you please clarify: Do you think that (a) the combination of product features in my claim 1 is arbitrary, and/or (b) the combination of product features in my claim 1 is not novel or not inventive over D1 and D2?
For the case if yes, please note that this combination includes the feature "heat storage unit (3) further comprises an empty space dimensioned to allow the salt composition (6) to expand upon melting", which is not found in D1 and D2. Also, this feature "is found to be essential for the functioning of the heat storage unit" of claim 2 by the Examiner, and in any case it is completely clear that it has a technical effect (for example, of reducing pressure if there is solar radiation sufficient to melt the salt).
(I do not understand why you have referred to G 2/88. I did not state that the "product" in my claim 1 is new over D1 and D2 for the reason that it can be used differently. Instead I clearly have specified the structural feature which differentiates this "product" from D1 and D2).
Did you ask for the PSA for the combination of product features in claim 1, or this PSA would not prove that my method claim 1 includes an inventive step over D1 and D2?
NN
Hi Gigio,
Deletemy claim 1 does not exclude melting. The claimed process can be used with melting and without melting, and skilled person would derive from the patent application that it can be used with melting if he so wishes. Prior art (D1 and D2) does not teach or suggest a method which can be used with melting the salt, which will have a space to expand.
Consider claim 2, for heat storage unit, in the Report. This unit can be used for solar cooking or can be just thrown away into a river. But this claim 2 has distinguishing features over prior art, and it is sufficient for inventive step that it can be used for solar cooking. There is no law that the subject matter of the claim must be used in the best way all the times during actual use to make it inventive. The actual use does not matter, but teaching matters.
Again, I would like to ask you to concentrate on apparatus features in my claim 1, since T 642/94, reason 4.9 states "The appellant argued that apparatus features should not be considered when assessing inventive step of a method claim. The Board however finds this argument unconvincing because the method steps in the subject-matter of claim 11 do not stand alone but instead require use of the apparatus, so that such apparatus features cannot therefore be ignored. In arriving at the subject-matter of method claim 11, the skilled person must de facto use inventive skill if subject-matter is to be arrived at which includes subject-matter which has already been found to involve an inventive step (i.e. that in claim 1)".
Do you think that the combination of the apparatus features in my claim 1 is not patentable over D1 and D2?
NN
Hi Roel,
DeleteI can put it differently. Do you see that when the Examination Board decides to add marks based solely on the existence of step of melting in claim 1, and not to add anything when there is no such step, they rely on the legal position defeated in T 642/94, reason 4.9? I.e they simply ignore apparatus features?
Even if I introduced all features of their claim 2 into my claim 1, they would grant me 0 marks with their marking rule, would not they?
NN
Hi NN, your claim has no connectiom between the melting, the heating and the cooking, nor that the melting tenperature is such that the salt composition can be melted using the solar radiation.
DeleteYour claim 1 is a method claim and not a product claim, thus has a much smaller scope of protection.
The product that is part of your method is:
a heat storage unit (3) containing a salt composition (6),
and the salt composition (6) has a melting temperature, which is suitable for cooking,
wherein
the heat storage unit (3) further comprises an empty space dimensioned to allow the salt composition (6) to expand upon melting".
I donot see how this product can be inventive in view of the prior art in the paper and in view of the absence of a link between the melting temperature and the solar radiation.
Hi Roel,
Delete1. As you can see from my previous message, I doubt that there is even any need to analyze the product of my method claim to establish that the Report is based on the position explicitly defeated in T 1144/07 () of 9.9.2009, r. 2.13 and T 642/94, reason 4.9, cited above. In the Report, 10 marks are added only if a method claim includes a step of melting. Product features are ignored (except a strange example on page 10 where "in such a case it remains uncertain whether or not the salt composition actually melts during the process": why uncertain, when such step is clearly not recited? And if the claim is uncertain, then it is probably not clear, and according to their marking policy, it must be 0 marks for an unclear claim).
2. Concerning your analysis, the product part of my method claim would rather be:
a heat storage unit (3) For a cooking process including the steps:
providing a heat storage unit (3);
concentrating solar radiation (12) onto the heat storage unit (3) to heat it; and
cooking food (8) placed on the heat storage unit (3),
wherein
the heat storage unit (3) containing a salt composition (6),
and the salt composition (6) has a melting temperature, which is suitable for cooking,
wherein
the heat storage unit (3) further comprises an empty space dimensioned to allow the salt composition (6) to expand upon melting.
Par. [05] of the application shows that there is an associated technical effect: "Heat storage based on change of phase is advantageous for solar cooking because, during melting, the temperature of the material is kept constant at the melting temperature, thereby avoiding exposure of the solar cooker and especially the food to large temperature variations. The invention concerns solar cooking with heat storage based on this principle".
If solar radiation does not melt the salt, then cooking is performed and there is no large temperature variation. If solar radiation heats the apparatus to the melting temperature of the salt, then it will melt and there is again no large temperature variation.
In D1, the problem of preventing large temperature variations is not addressed at all.
It is clear from D2, [02] that it does not solve this problem too, since it allows very large variations: "Advantageously, sodium chloride is non-toxic, very stable and maintains this granular state up to its melting temperature of around 800°C, far higher than normal cooking temperatures".
NN
Hi Roel,
Deleteone question to your example dated 4 July 2019 at 20:38.
When the leaves of the birch tree are the distinguishing feature, the leaves would be a technical distinguishing feature. Because the leaves are not excluded from patentability according to Art. 52 and 53 EPC, the question whether the feature has a technical contribution would not arise. The problem to be solved would be to provide an alternative plane.
The problem has been solved when it could be shown credibly that the plane can fly.
The leaves of a bird tree lies in another field.
Is there any pattern of point distribution between three alterantives of claim 1 attacks in C part?
ReplyDeleteMoreover, I numbered two pages of the C exam in wrong order. I'm wondering how this is handled by Markers and if an appeal could be successful in such a case (I need only 2 points to pass).
Did you inform the Secretariat after your answers was made available to you?
DeleteIf so, it will have been taken into account.
if not, why did you not?!
But if not, the marker would probably have understood if your answer was well-structured - he is a skilled person in art of exam marking.
I didn't notice it at that time. I discovered it only while comparing my answers with the Examiner's report. Nevertheless, the question is: if some points were lost because of that then could it serve as the ground of appeal? Has anyone come across similar situation? If so, I'll be grateful for comments.
DeleteI have no clue. I could argue either way, but donot know how such a situation is dealt with. I would expect -as Anonymous 4 July 2019 at 13:40- that the marker would have seen that two pages were in the wrong order, as the order he got your answer presented in did probably not make sense. And the markers know the papers very well, so I would find it hard to imagine that they overlook it (unless the answer in the wrong order was not immediately identifiable as being different from what you intended - in that case, I think you would need to face the consequences of your error... it as as getting a grant on a 71(3) that you approved, but where you didnot see that the wrong version of your claims was included - cannot be remedied).
DeleteWhy donot you just call the EQE secretariat?
I posted a comment on the DII-post w.r.t. another interpretation issue that came up in the blog discussion.
ReplyDeleteNow that you all have your results, does anyone have you have a clue on what was done with the unclarity in [002] as to what EP-F1 describes (only copper, or also the effect of metal nanoparticles in general).
See "Roel van Woudenberg 4 July 2019 at 17:28" on the DII-blog.
Any comments?
Hi Roel.
ReplyDeleteI posted a comment on the DII blog about that,
Cheers,
Which strategy for an appeal concerning D-I would be most likely successful?
ReplyDeleteIs it possible to allege that the distribution of the points is not convincible since the regulation pursuant to the EPC were cited as stated in the examiner's report?
There are at least two questions for which the marking seems to be unclear?
D 11/18 confirms again that the marking scheme is at the discretion of the Exam Committees and Examination Board, and the DBA can only interfere the appellant can show that the contested decision is based on serious and obvious mistakes the DBA may consider this - see reason 3.
Deletehttps://www.epo.org/law-practice/case-law-appeals/recent/d180011eu1.html
Hi Roel,
Deletethank you for your answer.
You refer to point 3 of the decision D 11/18:
"Only if the appellant can show that the contested decision is based on serious and obvious mistakes the DBA may consider this. The alleged mistake must be so obvious that it can be established without re-opening the entire marking procedure, for instance if an examiner is alleged to have based his evaluation on a technically or legally incorrect premise on which the contested decision rests. Any further claims regarding alleged defects in the assessment of candidates' work fall outside the DBA's jurisdiction, since value judgments are not subject to judicial review (cf. D 11/07, point 3 of the reasons; D 9/11, points 13 and 14 of the reasons; Case Law of the Boards of Appeal, 8**(th) edition 2010, V.2.6.3, with further references). As set out in D 7/05 (OJ EPO 2007, 378, 394 et seq.), the DBA can only consider facts constituting a mistake in the examination procedure which can be established without re-opening the whole marking procedure. The actual marking of examination performance in terms of how many marks an answer deserves is not subject to review by the DBA, nor are the Examination Board's criteria for determining the weighting of the expected answers (cf. D 20/96, point 9 of the reasons) to the examination questions (D 13/02, point 5 of the reasons)."
The question arises what falls under the expression " serious and obvious mistakes"?
Moreover, "the alleged mistake must be so obvious that it can be established without re-opening the entire marking procedure".
The board gives an example:
"...for instance if an examiner is alleged to have based his evaluation on a technically or legally incorrect premise on which the contested decision rests."
Are there any other cases wherein "the alleged mistake must be so obvious that it can be established without re-opening the entire marking procedure".
Could you give some other examples which might fall under the aforementioned criteria
See decisions cited in D 11/18 and see the comment from BR above on how to find EQE decisions ("Anonymous 25 June 2019 at 14:24").
DeleteAnd do not be selective in jsut citing what you think could be in your advantage: do not ingore the first two paragraph of r.3 of D 11/18 and Article 24(1) REE: the mail rule is that Examination Board decisions in EQE are subject only to limited review by the DBA and,a s a consequence, that the Examination Board's value judgment concerning the number of marks that an examination paper deserves is not subject to review by the DBA.
Is there any possibility to get the marked answer or will they be handed out when an appeal would be filed?
ReplyDeleteIn my view, in almost every examination there is the possibility to see the marked answer when interest exist.
Moreover, there has to be a possibility to complain about the way of the point distribution.
The transparency of the way of marking is very doubtful. Although two examiners check the answer, there will be still a meeting wherein the examiners will discuss there results if the deviation is too large.
I agree with Anonymous (9 Julu 2019) above.
ReplyDeleteFor filing an appeal one should know the distribution of marks in each answer separately.
Particularly, it would be important to know how many marks correspond to each sentence of the response of each one of the D1 questions.
I had 43 this year and 22 in parricular in D1. I was expecting 25 in D1.
After reviewing the solution of question 1 that I had 4,5 out of 9 it seems that I could get 6 or 6,5 since there are only three sentences from the Examiner's solution that I havent put in my answer. I doubt that these 3 sentences correspond to 4,5 marks.
Would it be possible to request for a detailed distribution of the marks such that I can estimate the possibilities of having a successful outcome in the appeal?
It is costly and time consuming to prepare such appeal and I would prefer to avoid it if I have no chances.
Thanks in advance for your response.
Why donot you ask the EQE Secretariat?
DeleteD 11/17, r.5-7 and especially 8-11: the DBA considers the current marking sheets as it is provided sufficient adequate, i.e. satisfying Rule 6(1) IP REE.
Deletehttps://www.epo.org/law-practice/case-law-appeals/recent/d070011eu1.html
8. Decisions of the Examination Board informing candidates that they have failed need not be reasoned since the Regulation on the European Qualifying Examination do not require it at all (cf. D 7/05, OJ EPO 2007, 378, 392; D 12/97, OJ EPO 1999, 566; D 3/03 of 20 April 2004 not published).
Nevertheless, Rule 6(1) IP REE requires that the marking sheets have to contain the details of the marking for the purpose of allowing the control of Examination Board's decisions by the candidates (cf. D 7/05, OJ EPO 2007, 378, 388).
9. In the case in suit the marking sheet of the appellant contains an indication of the maximum possible marks (hundred) and a schedule of the sub-marks for each question of Paper A. The same sheet also shows the table of sub-marks awarded by the two examiners individually for each question answered by the candidate, and finally the overall mark (48) recommended by the Examination Committee I and followed by the Examination Board.
10. This marking sheet together with the documents contained in the compendium enabled the appellant to verify the correctness of the Examination Board's decision in respect of his paper, as required in D 7/05 (OJ EPO, 318, 388). Unlike the present case, in case D 7/05 the marking sheet for Part II of Paper D was inadequate and unusable for purposes of verifying the examination decision since an outsider would have been unable to determine which elements of the candidate's answer had been respectively assigned the marks in section A, B, C and D of the marking sheet.
This also allowed in the present case the appellant to compare his answers with the "possible solution" and duly verify whether the mark attributed to each answer might have been the result of an obviously incorrect estimation by the markers, open to review by the present Board (see D 3/03, of 23 April 2004, point 4 of the reasons).
11. In view of the requirements of uniform marking and equal treatment of all candidates the scheduled breakdown of mark in respect of Paper A cannot be modified by this Board, all the more when the Examination Board confirms that no further breakdown existed.
Whether that necessarily implies that you cannot get more detailed information on the marking of your individual paper, I donot know. You could ask the EQE secretariat as suggested by Anonumous just above.
Hi Roel,
ReplyDeleteThanks a lot for your detailed response.
I will call the EQE secretariat as you and the Anonymous above proposed.
Hi:
DeleteI tried to call the EQE sekretariat, but I could not reach anyone under the number
089 23995155. This is the number being given on the EQE page. Does the EQE sekretariat have a new/other number?
Did you get further information about the marked examine?
Best regards
Opening hours are limited. Did you call in the right time slot? Maybe even less limietd in view of holidays that are starting around Europe? Did you ask by email whether they are open according to the listed times? They are usually very helpful!
DeleteNow it says on the EQE website:
Examination Secretariat
Telephone enquiries:
(+49 89) 2399 5155
Opening times:
Mon, Wed-Fri 09.00-11.00 hrs
Tues 14.00-15.30 hrs
Fax: (+49-89) 2399 5140
helpdesk@eqe.org
Hi Roel,
ReplyDeleteone question to your example dated 4 July 2019 at 20:38.
When the leaves of the birch tree are the distinguishing feature, the leaves would be a technical distinguishing feature. Because the leaves are not excluded from patentability according to Art. 52 and 53 EPC, the question whether the feature has a technical contribution would not arise. The problem to be solved would be to provide an alternative plane.
The problem has been solved when it could be shown credibly that the plane can fly.
The leaves of a bird tree lies in another field.
Hi Roel,
ReplyDeleteI called today the EQE secretariat and it seems that it is not possible to provide a detailed distribution of marks for each question of D1.
I also asked if I can file an appeal on the ground of expecting 6,5 instead of 4,5 out of 9 in Question 1 and at the same time providing details based on my answer compared to the response of the Examiner.
If I understood well during the telephone call with the EQE secretariat, this is a possible ground of appeal.
However, I am a bit confused since in case law like D0011/01 it seems that only obvious mistakes and grounds infringing the REE regulations or any provision relating to its application are accepted.
Please kindly inform me if this is the case or if a ground based on that I was expecting 6,5 points instead of 4,5 points in Q1 could be a valid ground.
Thank you in advance for your kind response.
Hi Anonymous 16 July 2019 at 20:48, please give your name, talking to an Anonymous is not so much fun...
DeleteTo answer your Q: I donot know. If the Secretariat says it is a possible ground, they probably consider cases where part of the answer was not marked due to an overlook - that is not in line with the REE/IPREE as your complete answer needs to be marked. And you can of course try to debate with the Examination Board whether the correct number of marks were awarded by them: as long as interlocutory revision is considered, you may not yet be in the same strict regime as with the DBA (but: I donot know, we donot help with appeals as we donot want to take position; with our blogs we give everyone the opportunity to comment on the papers and the answers, and we react to that, but we cannot be activel involved in appeals). But D11/01 and other case law clarifies that the Disciplinary Board of Appeal has only a limited competence and have no discretion to look at the details of the marking, nor will they remark the paper: if you look at recent decisions from them, they give an overview as to what extent they can and want to consider things you bring up, and when they cannot. You will see that they usually do look in detail into an issue to judge whether it is a serious mistake - it is like with new grounds in opposition: they must check for prima facie relevance, which means the examination as to whether the new ground changes the outcome is essentially done before admitting it.
Hi Roel,
ReplyDeleteMy name is Chris and you are right its not fun speaking with an Anonymous...
Thank you very much for this helpful information.
I'll have a look to recent decisions as you proposed and try to find some case law equivalent to my case and then decide about filing or not an appeal.
Is there a link where I can find only the recent decisions you refer to? Do you have such a decision on mind that is similar to my case?
Thank you in advance for your kind assistance.
Chris
If you search for "D"-decisions on the EPO Case law website (https://www.epo.org/law-practice/case-law-appeals/advanced-search.html), you can find more which reiterate the same established way of acting of the DBA.
DeleteAs indicated, I cannot help you with your appeal. But I can mention some decisions that may be of use to decide to appeal or not.
E.g., “D 3/14, r.13: “Only in a few exceptional cases has the Disciplinary Board of Appeal found special reasons within the meaning of Article 12 of the Additional Rules of Procedure of the Disciplinary Board of Appeal to exist […]. However, in cases concerning appeals directed against decisions of the Examination Board concerning European qualifying examinations, the Disciplinary Board of Appeal has not made use of this power to review the contested decision on its merits. This is because, in accordance with the consistent jurisprudence of the Disciplinary Board of Appeal, the actual marking of examination performance in terms of how many marks an answer deserves is not subject to review by the appeal board, and nor are the Examination Board's criteria for determining the weighting of the expected answers to the examination questions (see D 7/05, OJ EPO 2007, 378, point 20 of the Reasons). This jurisprudence is justified because and insofar as value judgements involving discretion are essential in the marking process and subject to only limited judicial review by the appeal board. Such review is confined to clear abuses of discretion in the marking procedure.”
Or, e.g., D 5/91, r.2 and D 11/14, r. 2.1
You will also find some decisions that give guidance as to what type of arguments and situations may lead to a successful appeal.
See, e.g., D 20/17, r. 3. 3.1-3.8 & 4 (C 2017):
D 20/17, r.3.4: “It is established case law that the examiners are obliged to allow for fair marking of answers which deviate from what was expected according to the examiners' report, but are reasonable and competently substantiated (see inter alia D 7/05, OJ EPO 2007, 378, Headnote II and Reasons 13; D 12/82, OJ EPO 1983, 233, Reasons 3). This obligation follows from the object of the qualifying examination, which is to establish whether a candidate is fit to practise as a professional representative (Article 1(1) REE); but it does not rule out the possibility that an individual answer to a part of Paper C may be awarded no marks if, for instance, an objection of lack of inventive step is based on a document which cannot reasonably be regarded as the closest prior art or a suitable starting point for the problem-solution approach or if the reasoning, while structured according to the problem-solution approach, cannot be regarded as a logical and justified ground, in a notice of opposition, prejudicial to the maintenance of a European patent.”
D 24/17 reason 8, and referred D 13/17 and D 15/17, give some indication as to the type of arguments and how you need to present them to have a chance that they are really considered:
Deletehttps://www.epo.org/law-practice/case-law-appeals/recent/d170024eu1.html
8. The appellant's requests and submissions have to be evaluated and judged against this background.
The Board is well aware of e.g. decisions D 13/17 and D 15/17 where other appeals directed against the marking of papers A and C of the EQE 2017 were found allowable by the DBA in a different composition.
However, whereas the appellants in those appeal cases filed detailed objections and supported arguments why the marking of their respective papers was incorrect, the appellant in the case at hand does not substantiate in detail in what respect the solution according the examiners’ report was incorrect. She essentially reiterates her solution and made a general reference to the solution in the examiners’ report. As already mentioned in the Board’s preliminary opinion and with the exception of one aspect in paper B (“clarity”, cf. point 8.2 of the communication and point 10.2 below), the appellant leaves it entirely to the Board to establish on its own motion whether and to what extent the official solution and the marking of her papers based upon it was, or could have been wrong, and whether she could have been or should be awarded more points for her answers (cf. points 7.2, 8.3, 8.4, 9.2 and 10.4 of the communication and points 9.2, 9.3, 10.3, 10.4, 11.2, 12.3 and 12.4 below). This, however, would go beyond the scope of the review as outlined in point 7. above.
Hi Roel,
ReplyDeleteThank you so much for this helpful information.
I really appreciate your kind assistance.
Chris
Hi Roel,
ReplyDeleteThank you very much for this helpful information.
I really appreciate your kind assistance.
Chris
Hi,
ReplyDeleteI was just wondering if we receive a certificate or anything for passing the EQE? With all the hard work involved it would seem appropriate to have something to commemorate all of those sacrificed weekends and evenings.
I know they used to have an almost graduation like ceremony in Munich but it's my understanding this was done away with a few years ago.
Just curious.
Thanks!
Hi,
ReplyDeletedo the 10-days rule apply to the DBA. What does "...appeal must be filed in writing with the Secretariat within one month OF THE DATE OF NOTIFICATION of the decision pursuant to the Regulation on the European qualifying examination for professional representatives Article 24 means exactly?
Is this like in case of the PCT ("Absendetheorie") ?
July 1, 2019 is on my letter, so does the time limit end at August 1, 2019?
Greetings,
Kendra
Hi,
ReplyDeleteI have a question concerning G 1/15 and partial priority?
As far as I understood, G 1/15 refers to generic "OR" claims. If I claim apple in EP-1 and in EP-2 fruit while claiming the priority of EP-1. The partial priority would hold. If a 54(3) document exists, than it would not be novelty destroying for apple and for fruit minus apple, the 54(3) document could not be novelty destroying since fruit minus apple does not contain apple.
G 1/15 focuses on a patent application claiming a partial priority from one or more previously filed applications. But the previous applications discloses e.g. subject-matter A (EP-1) and subject-matter B (EP-2) each as the first invention. A problem with the first invention did not exist in G 1/15.
Additionally, the first question to the enlarged board of appeal was:
"1. Where a claim of a European patent application or patent encompasses alternative subject-matters by virtue of one or more generic expressions or otherwise (generic "OR"-claim), may entitlement to partial priority be refused under the EPC for that claim in respect of alternative subject-matter disclosed (in an enabling manner) for the first time, directly, or at least implicitly, and unambiguously, in the priority document?"
"7. Conclusion
It follows from the above that question 1 is to be answered in the negative."
So the subject-matter must be "disclosed (in an enabling manner) for the first time, directly, or at least implicitly, and unambiguously, in the priority document".
To the main aspect of my question:
Case
EP-1 describes and claims apple. (Deemed to be withdrawn (not published) but priority was claimed by EP-3)
EP-2 describes and claims pipfruit (class of fruit, wherein apple falls under the term), and filed after EP-1 but after EP-1 deemed to be withdrawn.
EP-3 claims the priority of EP-1 and EP-2, and describes and claims fruit.
Do the priority hold for pipfruit?
EP-1 discloses apple so the priority should be valid for EP-3 for apple.
EP-2 is not the first invention for apple but for pipfruit without apple (pipfruit minus apple). However, EP-2 does not disclose pipfruit without apple (pipfruit minus apple), so that it is not directly, or at least implicitly, and unambiguously, disclosed in the priority document.
The priority claim on EP-2 should be invalid.
I'm looking forward to receive an answer?
Greetings
Kendra
Hi,
Deletefor the case A-1 that the priority application EP-1 discloses the following subject-matter:
A1, A2, A3, A4, A5, ....An (n=100)
B1, B2, B3, B4,....Bn (n=100)
In the subsequent patent application (claiming the priority of EP-1), the claims reads as follows:
A4,..., An (n =100)
B4, ...., Bn (n=100)
or
A4,..., An (n =103)
B4, ...., Bn (n=103)
Would the claim of the priority be valid?
In my humble view, the selection of
A4, ...., An (n=100)
B4, ...., Bn (n=100)
could be a selection invention.
In both cases, the subject-matter for which partial priority is sought is not directly, or at least implicitly, and unambiguously, disclosed in the priority document since it is selected from two lists.
Example A-2
The same as example A-1 but subsequent application EP-2 claims
A1,..., An (n =103)
B1, ...., Bn (n=103)
The partial priority should be valid since EP-1 discloses
A1, A2, A3, A4, A5, ....An (n=100)
B1, B2, B3, B4,....Bn (n=100).
Example B-2:
The priority application EP-1 describes and claims metal nanoparticles in the range of 35 nm to 80 nm.
The subsequent patent application EP-2 claims a range of 40nm to 80nm. Is the priority properly claimed. In my humble opinion, the ragen 40 to 80 nm is not directly, or at least implicitly, and unambiguously, disclosed in the priority document.
Example B-2
Almost the same as example B-1 but EP-2 claims
30 nm to 80 nm
The partial priority should be valid since 35 to 80 falling under 30 to 80nm is directly, or at least implicitly, and unambiguously, disclosed in the priority document.
The question concerning the apple, is another form of D-II of 2019 but almost the same in my view.
ReplyDeleteIt refers to question 3 of D-II. Adding priority to EP-F2
DeleteHi,
ReplyDeleteone more addition.
G 1/15 says that the new application claiming the priority can have a right for a partial priority, and not that the earlier application can be separated and include new information.
or are there other case laws or regulations which have to be considered?
DeleteHello,
ReplyDeletethe answer of examiner's report in regard to question 3 (D-I) is not clear for me.
The answer in case of b) EPC is that capsule made from metal cannot be included since it would contravene Art. 123(2) EPC.
But in R.56 (2), (3) and (4) EPC, the following is stated and it is clear from the wording that claims cannot be filed with R. 56
"(2) If missing parts of the description or missing drawings are filed later than the date of filing, but within two months of the date of filing or, if a communication is issued under paragraph 1, within two months of that communication, the application shall be re-dated to the date on which the missing parts of the description or missing drawings were filed. The European Patent Office shall inform the applicant accordingly.
(3) If the missing parts of the description or missing drawings are filed within the period under paragraph 2, and the application claims priority of an earlier application, the date of filing shall, provided that the missing parts of the description or the missing drawings are completely contained in the earlier application, remain the date on which the requirements laid down in Rule 40, paragraph 1, were fulfilled, where the applicant so requests and files, within the period under paragraph 2:
(a) a copy of the earlier application, unless such copy is available to the European Patent Office under Rule 53, paragraph 2;
(b) where the earlier application is not in an official language of the European Patent Office, a translation thereof in one of these languages, unless such copy is available to the European Patent Office under Rule 53, paragraph 3; and
(c) an indication as to where the missing parts of the description or the missing drawings are completely contained in the earlier application and, where applicable, in the translation thereof. "
R. 56(3) requires that "the missing parts of the description or the missing drawings are completely contained in the earlier application“. It does not say that it must be the description before. So that subject-matter in a claim could be regarded as contained in the earlier application.
Within the Rule 57 EPC, the missing claims on the basis of description added under R. 56(2) could be filed.
My question:
Can the content of the claims be used as missing parts of the description?
Hello,
ReplyDeleteI have question concerning Question 1 (Part) of the Examiner’ Report
"Possible Solution Paper D 2019 – Part I
Answer to Question 1 (9 marks)
(b) After the proceedings are resumed, J 9/12, Company B has to file a divisional application for claim 3, Art.76(1) EPC. EP-A has to be pending Rule 36 (1) EPC, hence the divisional application must be filed at least one day before the mention of the grant in the bulletin of EP-A."
The first question is how many point would the examiner probably subtract when J 9/12 would not be cited?
Is J 9/12 applicable to company B at all, since company company B is "a person other than the applicant“ pursuant to Art. 61 (1), and said decision refers to the applicant?
Citing J 9/12 is redundant since company B as a person other that the applicant pursuant to Art. 61(1) needs a final decision to take an action according to Art. 61(1) a) b) or c).
So it is clear that also a divisional application cannot be filed by company B.
This would be serious and obvious mistake of the way of interpreting J 9/12, and the redundancy which follows.
Hello,
ReplyDeleteAnswer to question 4 (part-I) according to the Examiner’s report:
(a)
….
"CA1 was filed before KR1 by the same applicant and pertains to the same device A. Art. 87(4) EPC is not applicable, since CA1 not filed in the same country. Thus, KR1 is not the first application for that subject-matter, whether KR1 discloses device A or not."
CA1 was published so that KR1 could not be the first application if they both are directed to device A, and CA1 would be state of the art according to Art 54(2). If device A was not disclosed in KR1 CA1 would also be state of the art according to Art. 54(2). There is no order of assessment required by the EPC.
What do you think?
"(b) No, a translation is not needed for determining the validity of the priority claim, GL F-VI, 3.4."
How many points do they distribute for citing GL F-VI, 3.4?
Again, it is redundant that a proof is not necessary when it is clear that the priority will not hold when the priority is independent of the subject-matter. What do you think?
I have a question, if an appeal is filed, does Examination Board or DBA have the power to reduce the original grade? Another way, can one appeal and end up having lower grade than the original grade because of another review of the paper?
ReplyDeleteHi,
ReplyDeleteas far as I can see, the blog is not answered anymore by the deltapatents team. Nevertheless, I try to get an answer.
I have searched for a successful appeal with respect to Paper D but I could not find one in the case law book as well as in the case law database.
Do anyone knows whether there are successful appeals against Paper D?
I am not aware of any recent successful decision by the DBA in respect of a paper D appeal. But the one below by P.M. may become.
DeleteThere may be appeals that were successful via interlocutory revision by the Examination Board: those decisions are not published and no information on those is given at the Tutor Meetings or on the EQE website either.
Note that the Committees do an extensive pre-marking and also read the blog discussions, and they take the information they get from that into account when concluding on the marking scheme - for pre-exam as well as all main exam papers.
NB: note Article 24(1) REE limits the power of the DBA:
Delete"(1) An appeal shall lie from decisions of the Examination Board and the Secretariat which adversely affect the appellant, but only on the grounds that this Regulation or any provision relating to its application has been infringed."
Every DBA decision on EQE appeals refers to this limited competence and emphasizes that the interpretation of answers and the marking is in principle at the (sole) discretion of the Committee/Examination Board. Refer to DBA EQE appeal decisions for discussions to the scope of their competence.
Hi Jack,
ReplyDeletedid you appeal already ?
I scrolled down the decisions to find one about D and after many minutes here it is, in French [but not succesful , as you wished]:
https://www.epo.org/law-practice/case-law-appeals/pdf/d150004fu1.pdf
Gokalp: if you had 44P or less then it doesn'n matter whether they reduce your marks, right?
Maybe the Delta Team enjoys holidays, who knows...
Ciao,
What if I had more than 44?
DeleteAny news on any appeals? Any filed? Any succesfull after review bij Examination Board? Any already succesfull at Disciplinary Board?
ReplyDeleteI did an appeal to my paper D, i ve got 43. The Ex. Board review for 46 and now i m waiting for de dba decision.
DeleteIf the Ex Board was willing to give 46 and thus a compensable fail, why did they send it on to the DBA? If you requested "at least 45" or "at least a compensable fail", the Ex Board would have granted interlocutory revision towards a compensable fail, isn't it? Did you request a true pass?
Deleteyes marc, my main request was to get 56, and the auxiliary request was a compensable fail.
DeleteWishing you good luck!
DeleteI am surprised that noone else responded to my query. I cannot imagine that noone else appealed to the Pre-Exam result, or to A, B, C or D. Maybe the blog is not checked too often anymore? Also DeltaPatents is silent for quie a while already?
Hi Marc, and others,
DeleteNo, we are not away. We are reading all comments. We are a bit less responsive as most comments donot require (in our view) a response from us), the exam is more than half a year ago, and as we are very busy with the courses for EQE 2020.
Our 12-day Pre-Exam Integrated course started last week, with candidates from various countries participating in 4 blocks of 3 days for basic legal training (EPC procedure, PCT procedure, claims analysis). Also, our main exam training havve started. Those courses keep us very busy. We hope to see many of you in our courses ;)
Does anyone have any experience / idea on how long does it take the disciplinary board to get back? I made an appeal in August and the examination board forwarded the case to the disciplinary board in September. Since then I haven't heard anything. The EPO charged me 1200€ for that and I would like a final response, whether positive or negative.
ReplyDeleteHi Emma,
DeleteYou can get an impression if you search for D-decisions on the website of the Boards of Appeal, and then check the decisions relating to EQE main exam appeals. It shows a large variation, may be well after the next appeal in some cases (e.g., D 24/17 was decided 22.8.2018 - the Board issued its first communication on 18 January 2018; ). May depend on whether acceleration/fast decision is requested in view of the need for sufficient time for preparation for resitting in case of a non-successful appeal; maybe also on complexity or number of people having appealed on substantially the same topic (but I donot know, I am just guessing).
You can ask the Board when they will take on the case and when a decision is expected (I assume you did get a letter with the case number and contact information? If not, send the request to the EQE Secretariat and ask them to forward it to the DBA/registry).
By the way, are you willing yo share with us what the appeal was based on? Which paper, which ground and arguments?
Good luck!
Dear Emma! I've file an appeal in 8 of august like you, and I have received my appeal number only in the beginning of December. Since that time I have no news from the BoA.
DeleteGood luck for us both!
Hi,
ReplyDeleteI have a question pertaining the book "Main Exam Questions For Paper D" (EQE2020). I could not find a blog for questions. In the book, it is referred to the webshop of www.deltapatents.com for substantial errors in a question or answer. There, it could only find the "Update 15 November 2019".
Did I miss anything? I would be glad if you could inform me about other channels to paste my questions concerning your Paper D book.
My question is related to question B4-10 of "Main Exam Questions For Paper D" (EQE2020) with respect to item (b).
In the answer to the question was: probably not.
Why is G 1/05 is not applicable in this case?
Greetings
Charles
Hi Charles,
DeleteThe update document you found is the relevant update for the EQE2020 edition (published July 2019).
You can ask questions via email to the email-address given in the book:training@....
We do not cite G 1/05 as DIV2 is filed out of EP1 and not out of a divisional. We also did not cite Art.76(1) as the main topic of the question -and hence the answer- is focusing of correction of error, rather than on deficiencies of DIV2 as filed vs the parent EP1. Extending the question with a comment that DIV2 extends beyind EP1 and that DIV2 cannot be amended to r3emedy this in view of Art.123(2) can be considered.
Hi Roel,
ReplyDeletein regard to your comment "We do not cite G 1/05 as DIV2 is filed out of EP1 and not out of a divisional", the headnote of G 1/05 reads as follows:
So far as Article 76(1) EPC is concerned, a divisional application which at its actual date of filing contains subject-matter extending beyond the content of the earlier application as filed can be amended later in order that its subject-matter no longer so extends, even at a time when the earlier application is no longer pending. Furthermore, the same limitations apply to these amendments as to amendments to any other (non-divisional) applications.
So at least according to the headnote of G 1/05 it is not necessary that Div2 is filed out of a divisional in order to be applicable. Indeed the topic is related to correction of errors but each error have also the effect that the subject-matter was not disclosed in the earlier application and thus goes beyond the content of the earlier application. Is that correct?
As fas as I understood your answer: Even though G 1/05 might be applicable, the amendment would not comply with Art. 123(2). Is this correct?
So in which cases is G 1/05 and Art. 123(2) would be fulfilled at the same time? As far as I can see, the following cases are conceivable:
Case (1):
Parent application: Subject-matter A+B
Divisional application: Subject-matter A
If I add B, in order to remove the extension with respect to the earlier application would this be allowable?
Case (2)
Parent application: Subject-matter A+B
Divisional application: Subject-matter A+B+C
If I delete C, in order to remove the extension with respect to the earlier application would this be allowable?
In which of these case could the divisional application be amended so that this does not go beyond the content of the earlier application but comply with A123(2)?
For the next question I will contact training@...
Greetings
Charles
I never seen an examination that takes much more time for issuing the result than to prepare it.
ReplyDelete