Monday, 6 August 2012

Paper C 2012 - The solution according to the exam committee

Earlier today, the EPO published the examiner's report on the EPO website. According to the exam committee, the correct attacks are:
Claim 1: Nov A3, Nov A5
Claim 2: A2 + A6
Claim 3: A4 + A5 and A4 + A6
Claim 4: A3 + A4
Claim 5: Nov A3, Nov A5
Claim 6: Inv A4
Claim 7: A6 + A5
A quick comparison to my own solution tells me that I can agree on almost all attacks. I am, however rather shocked by what the exam committee did at claim 3.

For more details, please click to read further.


As already pointed out before, there seem to be a lot of different options for attacking this claim. All options clearly have to start with A4 as closest prior art. The missing adhesive layer is found in A2, A3, A5 and A6. To complicate things, A1 discloses both an internal and an external adhesive layer while the claim is silent about the kind of layer that is claimed. Apparently, the proprietor wanted a broad claim covering both embodiments. Normally, a broad claim can be attacked by finding only one (known or obvious) embodiment falling within the claim scope.
Here however, the exam committee expects you to attack both embodiments. In the Possible Solution they attack the claim as if it is a partial problem situation and as if there are two missing features. In the Specific Comments they seem to suggest that you need two separate attacks. To my knowledge, this would be the first time in more than a decade that two inventive step attacks are expected for attacking one feature.
Surprisingly, in the attacks on all the other claims, the exam committee does not have any problem with only finding an internal or an external adhesive layer. Apparently, the term adhesive layer has a different meaning when you look for it in a novelty attack or closest prior art document then when it is the missing feature of the closest prior art.
Unfortunately, there is no explanation at all as to why you should use a partial problem approach or a double attack to kill this claim. Is it to prove that there is no inventive bonus effect? If anyone can find a relevant section in the Guidelines that might provide such an explanation, please put it in the comments.
In addition, the exam committee does also not explain why A5 and A6 should be used as secondary documents. A2 and A3 seem to be just as useful. A6 also discloses an internal adhesive layer. Personally, I have a slight preference for using A2 because of some compatibility arguments. The examiner's report does however not say whether such an attack would be allowable or not.
For most attacks, the exam committee explains why certain attacks are not considered correct. Important arguments that were often missed are also included in the examiner's report. For the only claim where such explanations would be very useful, they don't spend a word on explaining why you should select the attack they are expecting.
UPDATE (9/8): After a lot of online discussion (thanks to all who commented), I think that I do now understand why the model solution comprises two attacks. It is just as they say in the examiner's report: "it was expected". And that was the only reason. It was not predictable based on the EPC or earlier exams, but they just designed an exam and decided what attacks they did or did not expect.
For exactly the same reason the other four (perfectly working) possible attacks (external: A4+A2, A4+A3 and internal: A4+A3, A4+A6) were not in the model answer. Those attacks might be possible and correct, but they were just not expected. It is, however, possible that they did award marks for such attacks. On page 2 of the examiner's report they say: "In addition to the attacks set out in the 'possible solution', marks were awarded for other plausible, well-reasoned attacks". We will certainly inquire the exam committee about that at the tutors meeting, later this year.







38 comments:

  1. Hi!

    I agree that the claim 3 solution was rather quaint.

    I am very familiar with claims of the second medical indication type and this real-life experience actually got in the way of attacking claims 3 and 4 as expected.

    If thinking of a second medical indication claim for a known compound A for use in the treatment of disease X, what is the closest prior art? Is it:

    1) The (different, since otherwise lack of novelty) known use of the compound A; or
    2) Another compound used in the treatment of disease X.

    According to the logic of the exam, the alternative should always be (2), but this is seldom the case in real life.

    If alternative (2) is chosen by default, but there are no structurally closely related compounds used in the treatment of X, the logical consequence is that the presence of IS.

    In practice however, most OA from EPO cite alternative (1) as CPA. Usually EPO argues that what is known about the effects of compound A makes it obvious to be used in the treatment of disease X. It may for instance be shown in CPA that compound A is known to be inhibitor of receptor B and it is known that receptor B is involved in disease X, so use of A in X is obvious.

    I guess they could turn the argument around but this is how it is usually done.

    This in my mind represents a clear exception of the rule that CPA must always have the same purpose as the claimed invention.

    In the exam, I figured that by combining A2+A6 you can obviously get a patch falling within the scope of claims 3 and 4 (see claim 2) save that the active ingredient must be changed.

    The different indication (pain/wrinkles) is an independent technical problem that can be solved by a different combination of documents. There did not seem to be any evidence (did I miss something?) that the new patch of A1 provided some special interaction with the active ingredients. In the Example 2 of A1 it is said that "the hydrophilic bridge which enhances the transport of the active ingredient to the skin" which to me points towards that the effect of the hydrogel is generic and not dependent on the specific active ingredient.

    The active ingredients were not even named, which also made the whole exercise very unrealistic for a person in the field.

    So, the only modification necessary from A2+A6 is to change the active ingredient, to enable suitability for the claimed purpose.

    A4 teaches an analgesic and A3 an anti-wrinkle compound suitable for administration in skin patches so such compounds are known and it is obvious to put a suitable active ingredient into the patch when trying to treat a condition.

    What do you think?

    I passed (with poor marks, but still passed) so this is only of acedemic interest to me, but the whole experience left a bitter aftertaste.

    CD

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    1. First of all, this exam is not about first or second medical indications. A1 claims some devices in the form of patches with layers and substances. Some of these patches happen to act on a human body, but a device (patch) is not a medical substance or composition. It is just a combination of technical features.

      I understand the confusion that may arise from the suggested medical application, but the claims had to be attacked just like any other product claim. The CPA has to be a product with an equal or at least similar function. When you are looking for a product for alleviating pain you buy the patch of A4. When you want to remove wrinkles you start from the patch of A3. Only thereafter, you can start looking for practical improvements.

      Two important rules for the exam:
      1. Do not use your own knowledge in your own technical field.
      2. Do not argue like most examiners do in their office actions.

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    2. Hi Joeri,

      I do not still quite understand why you say this is not about first or second medical indications. The "for" in claim 3 seems to be a limiting feature where A 54(5) is applicable as the product then is "for" a method banned by a A 53(c).

      As such, I think claim 3 has both "real" product features AND (medical) use features so it not JUST a combination of structural features.

      Or did they mean that the claim in that case should read "for use in" which is the commonly used phrase?

      Or do you mean that following the suggested solution, you get the indication for free so to speak, so it just does not matter?

      CD

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    3. Art.53(c) mentions products, substances and compositions. Art.54(4) and (5) only mention substances and compositions. Chemical substances that is. Active ingredients that may be used in pills, potions or patches.

      To my knowledge, Art.54(4) and (5) only helps you to protect the active ingredients, not the pill or patch for delivering the ingredients. If you want to protect that, it has to be novel and inventive by itself and not by its intended use.

      A patch is not a substance in the sense of Art.54(4) and (5). It is a combination of technical features. Claim 3 does not have 'use features'. The '(suitable) for' is a technical feature described in a functional way.

      The active ingredients are not even described in A1. Probably because they are already known, also for the intended use. A1 only describes technical improvements for delivery patches.

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    4. Joeri, just an aside on your remark: 'Art.54(4) and (5) only mention substances and compositions. Chemical substances that is. Active ingredients that may be used in pills, potions or patches.'

      I see similar reasonings to what 'substance' means in many places, reference works etc.

      However, I have never been able to find any justification for this, relatively limited, interpretation.

      IMO, glass, wood, coca cola and the edible part of an apple are also substances, and as such claimable for use in the methods of A53(c)

      Of relevance to the discussion is also that A53(c) make itselfs not applicable to 'products, in particular substances...'. Given EPO standard interpretation of 'in particular' as non limiting, a patch is a 'product' as mentioned in A 53(c).

      I can therefore see CDs point of view

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    5. "glass, wood, coca cola and the edible part of an apple are also substances"

      I agree. But only the 'substances' themselves. 'Coca Cola for use in the treatment of cancer' is worth a patent. That's what Art.54(4) and (5) are for. But you can not patent a known product comprising Coca Cola and make it novel by adding an intended use, certainly not when the healing aspects of the Coca Cola are already known.

      The proprietor of A1 is nowhere claiming that he found new medical applications for known substances. He only found new products for delivering known substances with known effects. I do, however, see the confusion that arises from the medical context.

      A patch (if for medical purposes) is indeed a product as mentioned in Art.53(c). The last sentence of Art.53(c) has, however, nothing to do with Art.54. It is just a clarification to explain that only medical methods (not products) are excluded from patentability. There is a reason why Art.(54) does not talk about 'products', but only about 'substances' and 'compositions'.

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    6. To begin with, I would not be so sure that the patch would not be a composition in the sense of A 54(5). A composition in the medical context may even be a kit of parts (T9/81), which is further from a composition than an analgesic formulated as a patch.

      If you think about the earlier Swiss-type claim which is supposed to be equivalent, the recitation goes "... in the manufacture of a medicament". It should follow that any medicament is either substance or composition in the sense of A 54(5).

      Is the patch of claim 3 not a medicament?

      Regarding your Coca-cola example I think your argument actually supports my point although you make a different conclusion.

      If you wanted to attack the patented product comprising Coca-cola made novel by the new use in the treatment of cancer, you would have to show that the effect was in fact not novel. As you say, the product should not have been patentable "certainly not when the healing aspects of Coca Cola are already known"

      I think we are back to that if you chose the correct CPA you kind of got the medical use for free and did not have to worry about it.

      CD

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    7. The 'kit of parts' is a combination of two not yet mixed substances. The claim is on te substances (parts), not on the package (kit). A novel package (now the patch) is not examined as a medicine, but as a regular product.

      It's the same with the Swiss-type formulation which provided protection for the specific combination of substance and treatment. The actual manufacturing method was irrelevant and not even specified in the claim. If you want to claim the manufacturing method itself, then the medical aspects become irrelevant.

      Anyhow, for your initial question it is not important whether a patch is a medicine or not. Your question was about CPA selection. I am not an expert in the medical field, but I don't see any reason (or case law) for treating a medical claim different from a 'normal' claim. You have to start with a product having the most similar function.

      For claim 4, I'd rather start with an anti wrinkle cream than with a wound healing patch. If examiners do it otherwise, I think they do it wrong.

      Don't forget that an examiner often starts with a search result. In practice, the prior art is searched for the feature that is claimed to be novel and inventive (because the other features are already admitted to be known). The examiner then argues that the feature and the effect of the missing feature are already known, without paying much attention to a CPA discussion. If the document he uses is in the wrong field he should argue why he is allowed to combine it into the CPA. If this is done in a sloppy way, it may look like he selects the wrong prior art.

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    8. I think this discussion has been very interesting although we got pretty far away from the actual C exam, thank you for your time.

      I no longer feel surprised about my low marks, but hey, compensable fail is as good as a pass!

      Incicentally, I happen to have a case relating to a second medical indication under appeal where the ED refused the application for lack of inventive step. The choice of CPA was critical. In the oral proceedings, we tried to argue that a different compound for a similar indication should be CPA, but the ED did not accept this approach.

      It would be interesting to see how the case pans out before the Board of Appeals. I just hope the client does not abandon the case or go bust before we get a reaction, the appeal was filed for 2,5 years ago by now and there is no sign of life from the BoA so far.

      All the best!

      CD

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  2. Hi,

    I'm the anonymous (LF) who tried before to convince you about this dual attack based on the dual reading of the adhesive. I still think it's pretty valiant of you guys to volunteer a solution just after the exam, so no regrets or complaining, just my 2 cents!

    I had it wrong when I said this could be seen as a partial problem, no such thing really, my bad, as both readings cannot reasonably be made simultaneously.

    It is really a matter of 2 alternatives begging to be attacked. In the EQE, we're trained to always attack an alternative "A or B" claim under both alternatives.

    Why? Simply producing "A" would surely be enough to prove the claim is not patentable! But then, simply attacking all independent claims would surely show the patent cannot be maintained as is, right?! :-)

    Can we say the paper is about attacking all valid positions, explicit or implicit? Or, it is all about attacking all reasonable falll-back positions of the proprietor.

    As for the complaint about this question not being raised in any other claim, it is due to the fact that only for Claim 3 is the Adhesive layer the distinguishing feature, for which the effect is thus relevant (and thus dependent on the location of adhesive).

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    1. I agree with you that the 'missing feature argument' is probably the reason why they expect two attacks. It is the only difference with the other claims. However, I do not see any basis for this argument. Not in the Guidelines, not in the Instructions to the candidates and not in earlier exams. How are the candidates supposed to know that this was expected?

      The 'A or B' situation is different because then both alternatives are explicitly claimed and not just options from the description. In an or-claim you always have to attack both claimed embodiments and it doesn't matter whether you use novelty or inventive step.

      When a metal is claimed, you attack it with gold. If the description also discloses silver, you just don't care. Also when the silver has a different effect than the gold (of course it has, it is technically different). So when an adhesive is claimed, you attack it with an internal OR an external one. Not with both. At least that was how we were supposed to do it in the previous ten papers.

      In real life, you also want to prepare attacks on foreseeable amendments (e.g. on the silver). But then again, why would you make a difference between a novelty/CPA situation and a missing feature situation?

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    2. I agree with the reason why you can provide both attacks because of the different effects.

      However, I see absolutely no legal basis in the EPC, guidelines or case law anywhere that would require both attacks together.

      As shown in Joeri's metal analogy. Simply one attack that falls within the scope of the claim will do. If both attacks were required, then an "internal or external adhesive layer" should have been used in the claim.

      I am rather annoyed at this since I obtained a compensable fail in C. The marks I would have lost for not providing both attacks, as required, would probably have given me a pass.

      If anyone knows of any legal basis for having both attacks together as a requirement, because of the different effects, I would grately appreciate it if you can inform me.

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    3. It comes down to admissibility in Opposition proceedings.

      If you have a claim that can be read in two ways, admitting two attacks on the basis of D1+D2 and D1+D3, respectively, and you oppose it on the basis of D1+D2 only, you will have to argue for admissibility of your arguments on the basis of a late-filed D3 when your opponent limits, in a submission filed on the cut-off date mentioned in the summons to Oral Proceedings, to the "other" alternative. That argument will be harder if both variants are clearly flagged in the specification.

      If you attack on both bases from the outset, both documents D2 and D3 are in the file from the outset, both form part of the legal and factual matrix of the proceedings, and cannot be challenged for admissibility.

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    4. The claim isn't unclear. The claim is just broad. Just like claiming 'metal' is broader than claiming 'silver' or 'gold'.

      Admissibility is also not an issue. The grounds are already raised and the evidence is already presented. When a claim is amended you are, of course, allowed to come with new attacks.

      I think that I do now understand what the reason was. It's just as they say in the examiner's report: "it was expected". It was not predictable based on the EPC or earlier exams, but they just decided what attacks they did or did not expect.

      It's the same reason why the other four (perfectly working) possible attacks (external: A4+A2, A4+A3 and internal: A4+A3, A4+A6) were not in the model answer. Those attacks might be ok, but they were just not expected.

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    5. Perhaps I wasn't clear enough regarding the admissibility problem.

      Any document filed after the expiry of the opposition period is late-filed. Any ground of invalidity of a given claim raised after the expiry of the opposition period is late-raised. Such documents and grounds do not form part of the legal and factual matrix of the opposition, unless the Division decides to admit them as having nevertheless been filed within due time. (Guidelines, E-V-2, particularly 2.1, paragraphs 3 to 5).

      In this case, it is unclear as to whether a limitation to "internal" or "external" was a sufficiently unforseeable amendment as to render an additional document late-filed as nevertheless filed within due time. If the OD considers that the amendment was forseeable, the new document might not be entered into the proceedings, on principles of fairness and procedural economy. As a "fit to practice" EPA, one should not take any needless risk, and should therefore find attacks that cover arguably foreseeable amendments.

      Now, if one has a good set of attacks against the other claims, then the relevant documents might have already been entered into the proceedings, and there would be no need for argument on the point before the Division. That, however, cannot be assumed.

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    6. In this case A2-A6 are already on file and used. All grounds are already raised. Moreover, if you only attack one adhesive layer based on A4 and A6, you can later attack the other layer with exactly the same documents.

      There is also no legal obligation at all to attack 'foreseeable amendments'.

      And did you attack the 'foreseeable amendment' claim 2 + internal adhesive layer? That amendment is just as foreseeable as the amendment to claim 3 you think you are obliged to attack.

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    7. Well, if all of A2 to A6 are indeed cited in the Notice, then I agree on the admissibility point.

      And yes, I think the alternatives should be attacked in each relevant claim. As the Examiners point out in point 7 of the report, marks were indeed awarded for other plausible, well-reasoned attacks. I would imagine that if one attacked both alternatives in claim 2 in a convincing way, some marks would have been awarded. It is only a "possible solution", after all.

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  3. I don't see a problem with the twin attacks on claim 3. Claims 1 and 5 each have two attacks, so why not claim 3?

    I appreciate that two inventive step attacks on one claim is a little unexpected, but isn't the mantra of paper C 'expect the unexpected'?! (this is especially true for a paper with no priority, no A.123(2)/(3), no A.54(3), no A.53, no legal questions, no claim alternatives, no cascade dependencies etc., there had to be a twist somewhere!)

    In any case, paragraph [0009] of A1 (EN version) contained all the relevant info and was pretty clear; it's not as if the alternatives and their benefits were hidden in different parts of the patent.

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    1. Multiple novelty attacks have always been expected, but an additional inventive step attack has always (at least for the last decade) been characterized as a total waste of time. They might have changed that policy, but they didn't tell that before the exam and they don't explain it afterwards. They just say that it was possible and expected.

      And why stop with two attacks, where actually six attacks are possible? And why not a second attack on claim 2? The current attack on claim 2 only covers the embodiment with the external adhesive layer, not the embodiment with the internal one. That can easily be fixed with another inventive step attack, but no marks are awarded for such attack.

      Performing all possible attacks in this exam would have taken at least 9 hours instead of 6. You had to make a selection based on the EPC, the Instructions to the candidates and earlier exams. Without clear selection criteria you can not expect the candidates to come up with the award winning solution.

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    2. Hi Joeri,

      Thanks for your comments. I agree that the two I/S attacks against one claim was unexpected, I certainly don’t recall this situation occurring in the 8 paper C exams I did as revision.

      I also agree that writing out all conceivable attacks would be a tall order! …but my understanding is that the game in paper C is instead to attack each claim object once, then launch as many other reasonable attacks as you can.

      I don’t think a candidate can expect to set out more than ca 13-15 well-reasoned attacks in 6 hours (in the absence of legal questions and priority issues), so the question is whether the two attacks against Claim 3 would fall within the 13-15 most reasonable attacks? I think this consideration overrides any policy precedent regarding combinations of attacks in previous papers.

      In view of the big signpost in paragraph [0009] of A1, it’s not out of the question to imagine that a second attack on Claim 3 would fall within the top 13-15 attacks.

      For example, I think the reason why the location of the adhesive layer is not key to attacking Claim 2 as you mention is that the correct closest prior art document for claim 2 discloses an adhesive layer (para 5 of A2). Once the best CPAD is chosen for Claim 2, the technical effect of that feature becomes less important. As far as I can remember, the only claim for which the adhesive layer was novel over the correct CPAD was Claim 3.

      Thanks



      So, whilst the two I/S attacks was surprising,

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  4. RebelWithoutAClause7 August 2012 at 13:06

    Well, I passed C without the need for two attacks on Claim 3 simply by doing one attack per claim in good detail. Remember, with only 50 marks needed to pass, you need only one good attack per claim to come out on top. These are professional exams, and there is no difference outside the results letter between the candidate who scored 55 and the candidate who scored 75. I'm therefore not inclined to characterise the paper as unreasonable.

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    1. From your perspective I agree. The paper as a whole is OK, and if you are really fit to practice 5 or 10 marks might not make a difference. But there are also candidates who fail because they miss one or two marks. With an incomplete attempt at a second attack they might already have passed.

      For future candidates it is important to know what they are expected to do and not to do. Time pressure is a serious issue for many candidates. Uncertainty about whether additional attacks are expected or not are highly undesirable. Especially in an exam like this where there are much more possible attacks than you find in the model solution.

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  5. In the real world you would certainly include both attacks. If you only include one attack for one interpretation (internal or external) of the claim, the proprietor will simply amend to the other interpretation and have a valid claim. The valid claim will then need attacking in appeal and cost your client for the extra work and appeal fee. Thus, best practice would be to include both attacks in the grounds for opposition. This shouldn't be a problem to spot.

    However, considering this is the EQE I do think this is a little sneaky of the examiners who would normally, judging by past papers, "broadcast" that both attacks were required with an alternative type claim. It would appear the "broadcast" was less audible this time in only having both features and both effects in a single paragraph.

    izok

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  6. AcademicDiscussion7 August 2012 at 13:27

    I will agree with RebelWithoutAClause.

    I passed by doing one unique attack per claim and still having two attacks totally wrong (a novelty attack for claim 6 and a wrong IS attack for claim 4). Nevertheless I had 62.

    So even if I understand it is unexpected to look for 2 IS, the points were not there (only 16 points for 2 IS...).

    The key is the argumentation on the CPA, PBS and justification why you combine two documents.
    This paper was a bit strange (no priority, no A.123(2)/(3), no A.54(3), no A.53, no legal questions, no claim alternatives, 2nd med use or not, etc...) but not more than previous years.

    Of course for the sake of discussion we have to look at the weird expectation of 2 IS for one claim. But for passing the C-paper, one attack per claim was still sufficient.

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    1. to comment on "(only 16 points for 2 IS...)": This would result in perhaps 4 for the cpa, which in both cases is the same and 2x6 for every IS-attack following from the cpa. So 62 could be plausible. Perhaps the committee wanted to give here a sign what they will expect in future when A1 offers more than one effect deriving for features (internal, external) you do not find in the claim you attack. That perhaps would make sense, but I also did that wrong. By the way, I finally (fortunately!) passed this exam.

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  7. Yes, but you wouldn't probably talk like that if you passed the three other papers with high points and just needed a few points, less than for the second IS attack, for a compensable fail...

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    1. Academic discussion7 August 2012 at 14:11

      I don't think so. The EQE is a question of strategy: how do you tackle the paper? start with A54(3)? analyse deeply all papers first? find the CPA then screen for missing feature? It's like a game, you have to know what you want to do on the day because you won't have time to think about anything. the goal is to achieve 50 points. I see two ways of doing it: "over-kill" one unique attack per claim or quick and dirty with several attacks and get points evrywhere (a bit like DI). I can't tell you which is the best method.
      I just meant that on the morning of the last day, you should have a method/strategy you want to apply. this does 50% at least of your success or failure.

      For info I still need to come back next year.

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  8. Interesting stuff!!!

    Clearly, valid positions must be attacked - this is NOT a question of having multiple attacks for the same matter. This is about not leaving open a strong possibility for the proprietor to argue maintenance ["oh look, I meant the other adhesive which you did not attack"].

    Joeri Beetz: "For future candidates it is important to know what they are expected to do and not to do."

    I agree!

    I think the message is clear. There are only limited ways of varying an IS argument, even if including partial problems. So expect, maybe in one or two of the IS arguments, some unexpected variation.

    I think this is reasonable since there are practically perfect templates even for partial problems, so reasoning in new situations is to be expected.

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    1. It wouldn't be enough for the proprietor to argue "this was not what I meant". He would also have to amend (=limit) the claim. Exactly the same amendment would (temporarily) safe claim 2.

      The new rule that the examiners report seems to imply is that all effects of a missing feature provided by the description should be proven obvious. However, I am not aware of any case law that might suggest such a rule and this new rule has never been used in the previous exams.

      For this year's candidates there was no way of knowing that this was expected. Some candidates might have performed two attacks, but in the light of all previous exams that was actually a waste of time.

      Unexpected problems in the exams are totally OK. With proper preparation and knowledge of the EPC you should be able to solve such problems. Unexpected answers are, however, not OK and rather unfair for those candidates that studied hard and acted according what was to be expected.

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    2. I agree with "Anonymous" @ August 7, 2012 2:49 PM, who said...


      "...the question is whether the two attacks against Claim 3 would fall within the 13-15 most reasonable attacks? I think this consideration overrides any policy precedent regarding combinations of attacks in previous papers."

      ...it's helpful to know what combinations of attacks have occurred in previous C papers (2 x novelty against the same claim, but not 2 x I/S etc.) as a guide, but it should be treated only as a guide.

      The main principle should be to write down the 10 or so best attacks you can find based on the facts available in the paper and make sure you attack all the claims. Everything after that is ancillary.

      In this case the facts supporting the second I/S against claim 3 seemed pretty strong because there was a clear second effect, clear second problem and good secondary documents. I'm not that surprised to see it in the Examiner's report even though this situation hasn't occurred ever/recently in paper C.

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    3. It was certainly very surprising, my study buddy got a compensable in C, and she didn't do the two alternatives... So, in purely academic terms, before I give up, here goes. :-)

      I'm not convinced this means all effects of all features must be attacked.

      I think this means that any reasonable possibility of escape from an IS argument should be followed-up,whether it's partial probs, features with two effects, or features that could be read as two alternative features with two different effects, etc., being ready to adapt one's mechanic methods, which can still be ok but mostly as preparation. Ok, the GLs don't mention this, but attacking all valid positions is part of the exam, and this a valid position because we have a hole in our IS argument.

      Is it fair? I'd like to argue it is. This affects all candidates equally and is fairly independent of formal preparations, so one can see this kind of surprises as equalizers, rewarding run-time flexibility?

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  9. I agree, and I know, it is not a question where the 1,2,3,4 or 5 points are which are necessary for a compensable fail or a pass, but a question about all the other missing points, but such expectations of the committee and awarding of points is unfair and in my opinion one should think about a "correction" of points...

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    1. Just wondering, in light of the comments arguing the unreasonableness of expecting two attacks on claim 3, would there be scope for an appeal?

      In analogy with C2007: the second attack merely got points because the exam committee decided in advance that this was 'expected', while such an attack has nothing to do with fitness for practice, which is what the exam should test.

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    2. Although the expected answer might be somewhat unpredictable in view of the law and earlier exams, it is certainly not wrong.

      I think it will be difficult to win an appeal and gain a substantial amount of additional marks. Also in 2007, when there were much bigger problems with a substantial part of the exam, not many candidates successfully filed an appeal.

      In my opinion the time and effort you would have to spend on your appeal are much better spent at preparing for next year's exam.

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    3. Joeri,

      it is certainly not the intention to nag or challenge you, but are you really of the opinion that 'expecting' this attack in the case of claim 3, and not in the case of claim 2, is reasonable, when assessing 'fitness for practice'?

      'Expectations' of an answer should be reasonable, and at least internally consistent.

      Just saying 'we expected' explains why no point were given. It does not explain why point were available for the particular solution in claim 3, and not in claim 2.

      The magnitude is much smaller than C2007, agreed, but for the perhaps handful of people who just missed due to a few points, it is as big an issue.

      There is a moral obligation on the exam board to set fair exam. 'We expected' without justifiction of the expectation is not good enough.

      Now overall they do a good job, but in this case they appeared to have gotten it not quite right, without wanting to compare it to 2007.

      I am looking forward to their explanation keep us posted if you find out.

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  10. This is what I was also wondering about...

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  11. Let's have a look at the attacks on claim 3. Was it unexpected and if so, was it unfair/unreasonable?
    Most candidates could reasonably be expected to see that the claim was new and that for an inventive step attack A4 was clearly the closest prior art. The distinguishing feature was the adhesive layer. The claim does not indicate a location of the layer nor any function. However, the description of A1 in [0009] makes totally clear that the layer can be at two locations (internal/external) with completely different effects. The claim is thus broad, covering two species. To kill this claim, one inventive step attack is enough. To kill off any fall-back position, you would need two strong attacks.
    Is it unexpected that you need two attacks on a single embodiment? No, this is normal in the C exam (and in real oppositions too) particularly for novelty attacks (see claim 1 and claim 5). Have we seen this a lot for inventive step? Not recently, but is was completely normal up to and including 1999. Since that period the desired level of argumentation has gone up, such that in most exams there simply is not enough time to do multiple inventive step attacks: the committee usually ensures that there is only clearly best inventive step attack. In this exam, via Annex 1 [09] the committee made very clear that there are two branches. It is not unreasonable that you look at both. You should then see that both branches can be attacked with equally strong attacks. It may be a wise choice to perform one attack and leave the other to the end (if time is left).
    If something has not been in recent exams (or possibly even never), in itself does not make it unexpected. The situation of claim 3 can realistically happen in real life and is as such not unexpected. Was it unfair/unreasonable to give full marks only if both branches were attacked? I do not think so. The marks lost with having only one attack will be very limited and candidates could have seen that there were two branches with equally strong attacks.
    Filing an appeal on the fact that there are two inventive step attacks expected is inadmissible and, even if it was inadmissible, definitely unallowable. so, better let it rest and get in a positive mode and go for it and pass the next exam.

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  12. Finally, the Candidate's answer is available. Surprisingly, he did not make the "expected" attack regarding claim 3...

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