Thursday, 9 March 2017

Paper C 2017 Corkscrew

Here our fast attempt to C 2017 (paper here in EN and FR):

Claim 3(2): Added Subject-matter, Art.100(c), Art.123(2), metal necessary [0014]

Effective dates:
Cl. 1, 2, 3(1),4: P1 = 08.04.2010
Cl. 5-7: P2 = 28.03.2011

List of Evidence:
A2, A3, A5, A6: Art.54(2) all claims
A4 (the fair, not the document): Art.54(2) for claims 5-7

Other attacks
Claim 1: inv. step A6+A2, cork more stable, alternative solution (no spring)
(NA5 doesn't work. ridges not helical, not cork engaging, pitch undefined)

Claim 2: I've changed this based on the discussion below.
First option: inv. step A5 + A6 + A2
Alternative: inv. step A6+A2+A5, less force/effort for cork removal
(A3 misses the effect)
Probably only one option required. Probably 1st option is preferred.

Claim 3(1): inv. step A6+A2, A6 is already PET

Claim 4: inv. step A6+A2+A3, clover shape or 3/4 lobs from A3, better grip
(T641/00 doesn't work, technical effect present)

Claim 5: Nov A4 (A2 as evidence for reduced friction)
(NA2 doesn't work, no disc, no straight portion or no spiral portion)
(NA5 doesn't work, no coating on the spiral portion)

Claim 6: inv. step A4+A2, particularly good material for reducing friction, alternative for PFC
(A5+A2 may be possible, easier insertion, weaker, A5 not CPA)
(A4+A5 does not work, A5 misses the effect)

Claim 7: inv. step A4+A2, 'lower half', 'smoother insertion' (A2 [0005]), 'expensive' (A2 [0006]), compromise between low cost and low friction
(A5+A2 may be possible, easier insertion, weaker, A5 not CPA)

Looking forward to your comments, 

Joeri Beetz, Jelle Hoekstra

(c) DeltaPatents 2017

148 comments:

  1. Disagreeing with your claim 2. I would think that A5 ist closer prior art than A6. A5 and claim 2 are structurally so closer as well as being similar purpose. Adding A6 provides the enclosed chamber to increase safety as disclosed in A1 and A6. By starting at A6 one basically changes the entire structure when combining with A5.

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    1. Agree, changed it. Is also in line with most C papers where you once have to swap closest priro art.

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    2. for claim 2, do you think A5+A2+A6 is a good answer ?

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  2. I agree to your solution. I think the closest prior art for claim 2 is A5, since the spring in A6 impedes the implementation of the ribs. I think there is no suggestion in the documents for the skilled person that the spring can be removed from A6.

    For me this paper was difficult. There were a lot of inventive step attacks - some of them based on three documents - and only one novelty attack. It was therefore very time consuming to attack the claims. Moreover, the Art. 123(2) issue was not so clear compared to past years and required more time for evaluation. The only positive aspect of the paper from my point of view was the technical background, which was indeed very easy to understand.

    Sadly, in spite of the additional time of 30 minutes I was not able to finish my attack on claim 7.

    Kind regards, Christoph

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  3. I thought your second solution for claim 2 starting from a5. Effect of claim 2 less force for removal of cork which was same aim as a5 if I remember correctly, whereas a6 was concerned with making lighter corkscrew overall. Additionally, a5 had the greatest number of features in common with a2 requiring less modifications than if starting from a6.

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  4. Claim 1 : what about the feature "at least two different pitch sizes (a1, a2).
    Where can this feature be found in A2 ?

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    1. Final paragraph of A2: fewer turns in upper half means there must be at least two pitch sizes present (the pitch size being defined in A1 as being the distance between adjacent turns). I drew it out and proved it mathematically.

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  5. Claim 2. I first tried starting with A6 and it seems to work. Only problem is the sort of teaching away in A5 for adding arms and ridges to a plastic housing. Structurally it may look like quite some work, but when the spring is removed (not needed when having the varying pitch solution of claim 1) it's certainly possible. Also A1 presents the same device with and without arms and ridges. Except for the material of the housing then.

    So starting from A5 in then looked better. Unfortunately, it's a lot more work to attack. First add the varying pitch (again) and then close the housing. And you end up with two inventive step attacks for claim 1, which is weird and unprecedented.

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    1. It's partial problems - this has appeared in past paper C papers.

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    2. Joeri means two independent inventive step attacks on the same claim. That is not partial problems. And sure Joeri knows about partial problems.

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    3. I did both partial problems options for claim 2 A6+A2+A5 and at the end as alternative (saying in case opposition decision would refuse the first attack) A5+A6+A2 because I realized that could be a better option. How will the markers judge that?

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    4. For claim 2, with A5 as CPA how can one realistically adapt the housing of A5 to that of A6 taking into account the cogged, levered arms of A5 ?

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  6. The different pitch sizes can be found in A2 last paragraph.
    A6 has to be closest prior art, it stated itself, that you can change the chamberstructure to something that is very similar to the thing the arms are attached to in A5. Sorry i cant give the rightwording, wrote the german version :)

    Luiselotte

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  7. I used also no technical effect for claim 4 as the claimed handle may be in the shape of any kind of flower, while the gripping effect is obtained with a more specific shape

    Faber

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    1. Since in [12] a clear technical effect was given, it was no doubt the intention that you used that. The presence of the technical effect overrules the non-technical, aesthetic aspect.

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    2. R22(3) IPREE: "Candidates shall accept the facts given in the examination paper and limit themselves to those facts.". The spec says that flowers have a lobed shape which improves grip, so knowing about other kinds of flower is outside information, and thus irrelevant.

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  8. I do not agree with respect to claim 5. In claim 5, the friction-reducing material is applied to the spiral part. A4 did only disclose that a friction-reducing material is applied to the corkscrew. However, as we learn from A3, the friction-reducing material may also be applied to other parts than just the spiral-shape. Therefore, I made an inventive step attack in combination with A2 since only A2 discloses the friction-reducing material being applied to the spiral part.

    Maybe this is a language issue? I used the German version of the paper.

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  9. Dear delta,
    How can you decide that the inner composition (polyfluorocarbon) of the corkscrew has been disclosed in the fair.
    If not, A4 cannot be the CPA for an inventive step attack.

    Generally speaking, the choices should not be speculative in an exam like this.

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    1. The corkscrews were actually sold at the fair, weren't they? That means the corkscrew with the coating was publically disclosed (skilled person could have tested the corkscrew coating to find out what it was).

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    2. I checked before and that visitors bought corkscrews is said nowhere. It's all about testing and demonstrations.
      I hope the jury will not just impose its choice as feared.
      The law field supposes humility in the interpretation.


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    3. A4, line 41: "he was very successful in selling it there"

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    4. Is A4 "up to the hilt" proof of that?

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    5. Accept the facts provided in the paper. There's a clear indication of the who, what, where, when and how. You can offer to provide additional evidence (not facts) later. You're client will not be happy when you ignore useful prior art like this.

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    6. Dear Joeri,
      You can be sure that this exam corresponds to no possible experience with a client.
      humility!!!

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    7. Rule 22(3) IPREE defines the exam to not be a real-lfie sitation: no uncertainties in the exam, all the facts are there, stick to the facts.

      And... the proof up-to-the-hilt does not need to be in the notice of opposition. The notice needs the indication of facts etc, so you can refer to the selling in all detail (what, where, when, circumstances). Any discussion about standard of proof and really proving it according to the standard is a matter of the further procedure.
      (And... why is it so difficult to admit that you overlooked A4, line 41?!)

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    8. If it's not real life, don't talk about client

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    9. The client reference was not my argument. It was an additional consideration. You don't talk about the client, but you should think about him. The client gives you a task. In B you defend his claims and in C you oppose a patent. You gather the facts and argue your client's case. Don't spend too much time and effort on imagining undisclosed reasons why the other party may not agree with you.

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    10. I considered that A4 was actually disclosing a prior use by sale (see G-IV 7.2.1) so it was a full disclosure of the corkscrew, including the coating.

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    11. @Screwlex Me too. In addition I offered to file a receipt as evidence of the sale.

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  10. Dear Jelle, thanks for presenting your solution. I had one more attack where I am wondering now whether it would have merits: Novelty of claim 1 in view of A2. I shortly present it here and would appreciate any comments:

    A2 discloses with respect to the s.-m. of indep. claim 1:
    A device for removing corks ([1] - drive the cork completely out of the bottle) comprising a housing ([2] - shell of cartridge 4 comprising a gas and therefore being a housing for the gas)
    providing an enclosed chamber ([2] - chamber containing the gas)
    having a generally cylindrical shape (see Fig. - cartridge 4 shown in Figure at least partially generally cylindrical);
    and a rotatable cork extraction element ([2] and [9] - cork extraction element comprising chamber element 2 and spiral piercing element 3 which must be rotated for insertion into the cork) comprising
    at least a straight portion ([2] and Figure - the chamber 2 is a straight portion) having a handle attached to it (see Figure - the outer surface of the chamber element represents a handle which is attached to the straight portion) and
    a spiral cork-engaging portion ([9] - piercing element being spiral) and
    wherein the cork-engaging portion has at least two different pitch sizes ([9] in view of definition given in A1, [10])

    These are all features of claim 1.


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    1. Looked at that too, but I think it's a little bit of a stretch to consider the chamber to be the straight part of the cork extraction element. Also because it would BE the handle instead of having a separate handle attached to it.

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    2. As a candidate, I also considered this attack. I considered that a portion of the piercing element would necessarily be straight, for a spiral part to be connected to the outlet of the chamber. But in the end I decided: no, the straight part is lacking.

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    3. I had very similar thoughts during the exam, but put this attack on my "do at the end if there is enough time" list anyways with the thought that there must always be a straight portion if you define it to be a small enough slice of the spiral.. like when you zoom in on the edge of a circle, eventually it looks straight.

      I didn't have enough time so it didn't matter, but I was struggling, anyways, with the idea of using A2 (the same embodiment) for inventive step and novelty.

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    4. Your last remark made me remember: the fact that A2 was also necessary in the inventive step attack confirmed to me that a novelty attack was not required. It seemed unlikely that a document required for inventive step should also be used for novelty for the same claim.

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    5. I did inventive step in view of D2 since has all features(at a stretch) other than straight AND spiral, but the straight part has not technical effect, and so not inventive (based on the only non-technical differences thing)

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    6. Such an approach may work in practise, but I doubt whether it will get you anything on the EQE. Despite the straight part not having a (clear, or explicitly mentioned) technical effect, the feature itself is still a technical feature, is it not? Such a feature should be found in cited documents.

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    7. I went for this attack as well. I argued that a straight part is implicitly disclosed because that's the only reasonable way of attaching it to the handle (not so sure about the validity of this argument now...). But because I found it a bit far stretched, I also attacked it on basis of A6+A2.

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    8. I chose this attack too. I had major doubts about going this way because the the straight part seemed to be lacking, but considering what was expected in previous exams and the constructions of the claims and information provided in the document I thought they want to hear this attack. Plus there might be a novelty attack on claim 4 as well in view of the flowers on the outer surface of the handle. In the end, I said the straight part was the conical part between the handle and the helical needle and the extraction element included both the needle and the conical part. A2 clearly wouldn't work as CPA but I felt that they wanna see that it reads on the brought language of the claim (which was the case similarly in several exams in the past). Thoughts?

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    9. I have also thought during the exam at such an A6-based novelty attack on claim 1. While in real life I definitely would have performed that attack, in the exam I've decided not to draft it as in my view in no way the spring of A6 can be considered as being part of a cork engaging element (and not to loose time). In my view, a cork engaging element is an element that comes into contact with the cork itself (i.e. , engages it) during extraction of the cork, while the spring in A6 has a different technical function. Do you agree?

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  11. I still think A6 as CPA was more appropriate.

    Both documents could be used as CPA, the fact that the whole housing is in metal is not implied by C2. The specification [14] states that : "the metal housing 1 provides the necessary structural support for the side arms 6", so does the "metal ribs" in the second embodiment of [5] of A6, which provide "robustness" to the structure.

    Moreover, a pointer to the problem is present in A6 ([9] mentioning the problem of the easier removal of the cork), which is not the case in A5.

    Finally, the structural combination is easier if you start from A6, the one skilled in the art only has to couple the toothed side arms of A5 to the metallic ribs of A6. Adding the housing of A6 to the A5 corkscrew implies more modifications : 1) adding the plastic housing around the two ribs 5c and 2) modifying the whole structure to make the housing cylindrical.

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    1. I do agree with you that the metal housing feature was not relevant to state that A5 was CPA.
      However, I chose A5, as it was obvious to me that a claim related to a corkscrew with side arms, such claim having the objective to remove the cork more easily, was preferably having a CPA with side arms and the same objective.
      Moreover, this solution was allowing me to use [3] of A1, stating that a housing is a common thing in a corkscrew, thereforethe housing of A6 to the corkscrew of A5 could be added without any difficulties.

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    2. Yes, a case can be made for A6 as CPA. But the exam is a bit deceiving in the sense that one does not easily switch CPA after having already analysed C1. When selecting the CPA for C2, one should clear ones mind, and consider the whole of the subject matter, including the additional features of C2, as a new, independent "claim 1". When seen in that way, my guess is that more people would select A5, rather than just continuing with A6. But I admit, I also had trouble to do the switch on the exam. For me a toilet break gave me the peace of mind to do it. ;-)

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  12. I thought A2 was quite explicit that the cork extraction element was straight OR spiral, and so not both

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  13. @Macron: this was a novelty attack, not inventive step, so the features of the claim must match in their broadest interpretability

    @Anonymus: It was not the piercing element what was seen to be straight, but the chamber part (with the flowers printed on)

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  14. I’m not sure how to feel about this one - I think I have really tried very hard to make this a lot more complicated than it seemed it needed to be!

    I assumed there must be a novelty attack on claim 1, so I said not novel over A6 (using the spring feature). I also said not inventive over A2 since:

    A2
    Has a cylindrical housing – chamber 2
    Rotatable cork extraction element (3 – [009] – may be a spiral – inherent must be rotatable to drive into the cork)
    Handle – [008] device used to pull cork out – chamber is then used as a handle
    Doesn’t have straight AND spiral element (one or the other) –
    But in claim 1 the straight element has no technical contribution – so A2 does not have any different features that are technical, and so A1 is not inventive?
    [Far fetched right!!]

    I also said claim 1 not inventive over A2+A5 [I don’t know why looking back]
    And A6+A2

    Given I did so many things to claim 1 I’m thinking they will mark me down since I clearly look like I don’t know what I’m doing, even if one of those was maybe right!

    Claim 2 = A5+A2 (referring back to that claim 1 is either not novel over A6, or not inventive)

    Claim 3 = novelty over A6 (since I said claim1 was not novel over A6), or at least not inventive over A6+A2

    Claim 4 = A6+A3

    Claim 5 = not novel over A4

    Claim 6 = A4+A2

    Claim 7 = A4+A2

    I argued that the coating must be on the spiral portion, since it would make no sense to coat the handle in a friction reducing coating since that would be contrary to the aim and would make it more difficult to use.

    Re claim 7 I think I said knowing it was expensive, and from A2, you would only coat up to half of it – difference between half and 2/3s is routine modification and not tech effect taught of the bit between ½ and 2/3’s.

    I have cocked up re the inventor – I don’t think I called him as a witness but put a note suggesting we contact him, or the organisers of the fair for more info/other material. Doh!

    I also argued that the framework of A5 (5a, 5c and 5b) formed a cylindrical chamber -though it’s not really enclosed so I’m expecting that one to also not work, so my claim 2 attack I know isn’t right.

    So I don’t know how to feel about this one.
    My CPA arguments were all the same and a bit rubbish..all my IS attacks seemed to be fairly short really.

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  15. Joeri, Jelle

    Thanks for the post.

    As regards claims 5-7 I agree with the attacks.

    I thought claims 1-4 were open to several possibilities and given the information in all of the prior art multiple were possible. I also think that compared to previous years, this paper was particularly tricky - it was tough to decide the best avenue. I think someone has mentioned this above (in part) but I went for partial problems for claims 1 and 2.

    I took A5 as the CPA - same purpose or effect/has features in common (minus the pitch and the housing).

    These features are unrelated and provide no interrelated technical effect greater than the sum of their parts.

    A5+A6 give the housing and a nice construction of the OTP.

    A5+A2 give the pitch, again with a nice construction of the OTP.

    Claim 2 can also be attacked on the same basis because all features of claim 2 are disclosed in A5 (I think)...

    This did pose a problem for attacking claim 3 and 4 when both dependent on 1. I had to take a leap of faith with a lack of novelty ((claim 1 over A2) - I note your comments on this above)) this then allowed A2 + A6 for claim 3 and A2+A3 for claim 4...

    I'd be interested to hear your thoughts on the partial problems...

    thanks
    AP

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  16. I angrer, A5 is CAPS for claim 1 since A1 $6 defines housing in the form of a cylinder having an upper open end and a lower open end through which a cork extraction element extends. Same as collar 5a in A5$3. Generally circular because engaging element is rotatable, and thus will require a cylindical shape of the enclosed chamber. Combine with A2.

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  17. Spell check in Norwegian messed up first sentence. "I agree.A5 is CPA..."

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  18. One question regarding attacks for Cl6 and Cl7, why not A2 as cpa and combining it with A4 and trial&error (disc for stopping insertion as straightforward decision of the sp for cl6 and same argumentation for reducing costs for cl7? I did the novelty attack using A4 for cl5 but somehow, the specific choose of the Polybacchus for cls. 6 and 7 only in A2 seemed to me more important.

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  19. Is a claim 2 attack using A5 + A2 viable ? Based on the "enclosed chamber having generally cylindrical shape" (broad and non-specific language)equating to the supporting element of A5 which describes enclosing components of the extraction spiral(5a,b,c)which together form a "generally" cyclindrical structure - this enables a simple A2-based technical effect conclusion.

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    1. Me too, as "generally cylindrical" seemed a pointer to a broad interpretation, effect does not matter vs CPA and Reference Numeral 5b in A5 was "circularly shaped" acc. to description and from the figure it could be seen that at least 5b extended upwards, so (granted, introducing own yet super basic knowledge of a cylinder as no definition was provided in A1, so arguably the standard definition/ubterpretation applies) it is cylindrical.

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  20. Dear Joeri and Jelle,

    first of all, thanks for sharing your thoughts with us.

    Regarding added subject matter C3(2)
    I agree with your comment based on [0014] metal necessary.
    However, I read in [0008] first sentence: "housing can be made of plastic OR metal" (I took german version, so my translation may vary a bit).

    I.e. the claimed object of 3(2) is present in the description of the application as filed, making this change of claim dependencies allowable, i.e. no added subject matter.

    C1: Why do you believe A5 will not work as CPA, due to its helical ridges? They give the same function to the teeth of the levers as in A1. I.e. my CPA is A5 for C1.

    Does this make sense for you?

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    1. "[0013] Figures 3a and 3b show another embodiment"
      So, [0008] does not apply to the embodiment with the arms. For the embodiment with the arms, metal is necessary.

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  21. I think if you reason like that, you should make a lack of sufficiency attack against claim 3(2) because it is not disclosed how the arms may be combined with the polyethylene housing since it is stated that a metal housing is necessary to provide the support for the arms.

    Best regards,

    Remy

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    1. Art. 100(b) and 83 are not used in the exam.

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    2. I agree with Remy. I think the argumentation should be based on the fact that the combination of claim 3 and 2 (+1) is not disclosed in the embodiment of Figure 3a and 3b. The combination is only disclosed in embodiment of Figure 2. And there is no link between the two embodiment. Mentioning metal you would end up with the sufficiency disclosure discussion. For example, if the description Figure 3a comprises the combination of claim 3 + 2, there will be no 123(2) issue...although it may not work...

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  22. Remy,
    thank you for your explanation, it makes sense to me.
    Any idea about the CPA question for C1?
    The anonymous poster

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  23. All agreed but for cl.2 attacked by A5+A2 only, deeming (explicitly and partly implicitly - by barely novelty standard!) all features in cl.1 disclosed in CPA A5, with the exeption of the differentiating feature from cl.1 (attacked by (A6+A2). Thus, no need to combine A6 here.

    Any verification or falsification, anyone?

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  24. Yes, I also attacked claim 2 by A5+A2 under the assumption that 5a and 5b form a GENERALLY cylindrical chamber (the housing providing that chamber thus having also the corresponding effect of centering the chamber on the bottleneck, cf. A5, par. 3, last sentence: "placed directly on the bottles rim", and A1, par. 7: "The housing 1 helps to centre the device"). I thought that two lengthy partial problem approaches (as firstly suggested by Jelle in the blog opening for claims 2 and 4) would be a bit too much even in the EQE part C and in view of the further attacks, and it would also represent a "nice" variation having two completely different inv. step approaches in the first two claims instead of switching in claim 1 from novelty to inventive step as often the default case in the previous years.

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  25. A "housing" is one thing; a "housing providing an enclosed chamber" is another. If there is any doubt as to the meaning of "providing an enclosed chamber", one can find in A1 that this feature "protects the user from inadvertently trapping a finger in the cork extraction element 2" [0007]. If one doubts whether A5 discloses a "housing providing an enclosed chamber", please consider whether the cork screw of A5 protects a user from inadvertently trapping a finger in the cork extraction element. Given the open structure of the cork screw of A5, it is safe to assume that it does NOT protect a user from trapping a finger. Thus, A5 does NOT disclose what is called a housing "providing an enclosed chamber".

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    1. Yes, maybe you are right: when treating claim 2, I had the strange feeling that there must be more to the chamber issue, than just defining the supporting element 5 in A5 as a housing providing an enclosed chamber, however, let me explain why I finally decided not to include A6:

      A1 denotes in par.[7] several effects to the housing: firstly, the enclosed chamber protects the user from trapping a finger, secondly, an annular recess - if present - helps to centre the device and to restrict the device's movement during use.

      A5 describes in par.[3,6] and in the figure the supporting element 5 made of metal with collar 5a, circular element 5b to be placed on the bottle's rim, and at least two (metal) ribs 5c joining both.

      A6 mentions in par.[6] a safer use and teaches in par.[5] to "form this structure 1 with metal ribs and a cover made of plastic material, thereby also forming an enclosed chamber".

      The rest seems easy: for achieving the goal of an improved safety for A5, the skilled person would consult A6 and just add the plastic cover disclosed therein to the supporting element 5 of A5, thereby obtaining the same effect as mentioned in A1 and arriving at the respective feature of A1, claim 2.

      However, would the skilled person really consult A6, describing a corkscrew with a significantly different construction (i.e. without arms) and kinematics when removing the cork? Furthermore, taking into account Points 9 and 10 Jelle's PSA-System (Is the solution of A5 technically compatible? / Which modifications are necessary to obtain an anticipating embodiment?), I find that the structure 1 in A6 as shown in the figure is in this form definitely not compatible to the supporting element as shown in the figure of A5. And finally, the assertion that the skilled person would "somehow" provide the ribs 5c in A5 with a cover is just the sort of assertion every EQE candidate is warned of in any preparation course. Looking at the figure of A5 it does not seem trivial to enclose the irregularly shaped structure 5 with a solid cover which does not impede the functioning of the device, in particular not when starting from the general statement in A6 "form this structure 1 with metal ribs and a cover made of plastic material" which refers to a completely different device from the construction point of view.

      I am convinced now the examination comittee expected A5+A6+A2; thereby actually nullifying the +30 minutes with two partial problem approaches in the exam.

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    2. 'enclosed' is a relative term not defined in the patent, and the support arms of 5a 5c also offer protection to the finger from being trapped (look at A4 at an unprotected spiral extraction element). A broad, intelligible and simplistic attack (A5 + A2 - using A5 as CPA remove the need to address the finger trapping technical effect)to oppose the patent and is (arguably !) preferable to attacking with a convoluted, complex attack using A5 + A6 +A2..

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    3. I also think we had to change the CPA from A6 (claim 1) to A5 (claim 2), but for claim 2, I used the combination A5+A2+ general knowledge (before a subsidiary attack with A5+A2+A6) because A1 is saying that a housing is "well-known" and because there's no detailed effect for this housing being cylindrical... So I think that we could use this combination, even if A6 was to be used for a stronger attack.

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  26. Thank you Jelle and Joeri for providing your model solution. I am breathing a little easier having read it.

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  27. NEW ISSUES NOT YET MENTIONED!!!

    Dear colleagues,

    Please correct me if I am wrong.

    These are key points of my message:
    The term "housing generally cylindrical" is not just put there by chance; we have to make use of it when arguing. This term is unclear (A84) and it is thus open to multiple interpretations. One of those is that it covers the supporting element of A5. Please note that we can't use the description of A1 to interpret the claims of A1 (e.g. there is not doubt that "enclosing a chamber" of claim 1 is also present in A5; the protection is not claimed)!!

    The solution provided in A2 is ambiguous. The solution in A6 is a suggestion for the IS attack.



    The solution in A6 consists of controlling the pulling force at each extraction level of the cork by having different pitch sizes of the spring. This is evident and implied by A6 I.e no need of text for describing it.

    At time t0, the spring was compressed and having pitch size d0, the cork at level l0, the force was f0. At time t1, the spring was a bit extended having pitch size d1, the cork at level l1, then the force f1>f0 can be applied. This is the solution principle of A6: different forces for different extraction levels (or cork level). This solution is implemented by controlling pitch sizes at different levels of cork extraction. In other terms, at level 0 the force must be smaller than at level 1. This is what A1 describes as well!

    The solution of A2 does not provide a non unambiguous disclosure of different pitch sizes. The passage "Fewer turns in the upper half" also encompasses the case where e.g 3 turns are in the upper part and 10 turns are in the lower part while the same pitch size is used( I.e. It is not said in the last paragraph that the NEW upper half is completely spiral...). A sentence like:
    " fewer turns PER DISTANCE UNIT in the upper half part" would have the single interpretation i.e. different pitch sizes.

    in addition, A2 adopts the same solution principle and implementation as A6 but applied on the screw itself instead of a spring. for example, at time t0, cork was at level l0 (e.g. at the upper part with pitch size p0), f0 is applied; after t0, at t1 comes pitch size p1, which is at cork level l1, and a force f1>f0 is applied. P1<p0. This is how the stable extraction of the cork in A2 can be explained (same as in A1).

    Thus, in my view A6+A2 does not make sense as combination because the same solution is already used in A6, or at least it is a weak IS attack compared to A5+A6 (or A5+A2). Starting from A6 as CPA, we cannot say that we search for an alternative solution; but for an alternative implementation of the same solution using pitch sizes.




    because of the ambiguity of A2 I was unsure and I had to use the solution of A6 as suggesting the different pitch sizes of claim 1 as described above. The skilled person would not use the spring as it would not work with the device of A5(levers) but he can use the (force) solution principle to implement it on the screw directly. In particular as it is well known the relation between the pitch size and forces ( cf A1).

    Thus, I believe that A5 is the closest prior art for claim 1 as well. A5+A2 is not completely evident and can easily be rebutted by the proprietor because the passage of A2 has multiple interpretations including the one where pitch sizes are the same.

    ReplyDelete
    Replies
    1. A very skewed way of thinking.
      Maybe, the "fewer turns" part in A2 could have been worded more clearly. But then still, understanding that part as the missing piece of the puzzle should take preference over a way too complicated abstract notion that characteristics of a spring-type forcing element should be projected onto a piercing element for interacting with a cork.

      Delete
    2. I just wrote and described "how the stable extraction is achieved". It is not explicitley mentioned in the annexes because it is evident and can only be explained in that way. The forces are also mentioned in A1, and that is what I explained above...it is really very simple basics what I described above.

      The sentence "Maybe, the "fewer turns" part in A2 could have been worded more clearly", would simply mean that the attack is based on an ambiguous refrence...and that you agree with my comment at the end! An ambiguous reference cannot form basis for a strong attack.

      in my view, the missing piece (A2) of the puzzle does not fit becasue of the ambiguity. for me the missing piece of the puzzle is A6...

      most importantly, the explanation above demonstrates that A2 is NOT an alternative solution to A6. So what do you think about it? why do you think that A2 is an alternative solution to A6?


      Delete
    3. I do not agree with you; I just try to understand your position. And I do see that the sentence could have been worded more accurately. As you said, a "per distance unit" element could have been added. And also it did not say fewer turns *than the bottom half*. I do however also see arguments why the sentence is worded accurately enough. If the upper half has fewer turns than the bottom half, then a reference as to the length is automatically included: PER HALF of the total length. And if not fewer turns as compared to the bottom half, then as compared to what? It is not a matter of whether with some abstract interpretation something else could be understood. The matter is, what normal people (your neighbour candidates at the exam) would understand.
      I do not think of A2 as an alternative solution to A6. A6 cannot be seen as a solution, as I noted above (it does not make any sense to relate the pitch size of a spring to the pitch size of a cork extraction element). A2 is THE solution, given that is the only document related (maybe in some ambiguous terms, but then still) to different pitch sizes in a cork extraction element. That alone should put a candidate on the track of making a combination with A2, and should make him conclude that any abiguity (if noted) should be forgotten about.

      Delete
    4. I thought when reading A2 that the ambiguity is intentional and I had to take it into account. Please let me explain your two points above and please note that there is no "too much thinking "; it is just what is described:

      A) A2 ambiguity

      paragraph [08] defines piercing element, call it EL1, having a spiral structure.

      paragraph [09] defines a new piercing element EL2 that overcomes the problem of stable cork extraction.


      Thus "fewer turns in the upper half" has all the following meanings:

      1. fewer turns in the upper part of EL2 compared to (reference) the lower part of EL2.

      2. fewer turns in the upper part of EL2 compared to the upper (reference) part of EL1.

      3. In both cases (1) and (2) assume that the reference part has N turns over a distance D1.

      the sentence of "fewer turns in the upper half" would mean that we have M turns in the upper half part, where M is < N.

      However, this is open to two interpreations:
      a) M turns on the same distance D1; OR
      b) M turns on another distance D2.

      if another distance D2 is used it is not guaranteed that the pitch size changes. That was my point; whcih is a matter of fact.


      B) regarding the solutions of A2 vs A6:

      A6 solves the same problem as A1 and A2 namely the stable extraction of corks ([9], A6). That is why in the suggested response by our colleagues, it is mentioned that an alternative problem-solution approach is to be used (we cannot use the normal PSA).

      However, my point is that it is not alternative solution. A6 uses (forget for the moment the spring) the same principle solution as A1 and A2(if not ambiguous). The principle solution is that you apply different forces for different levels of cork extraction. For that A6 uses the spring and its pitch sizes.

      the skilled person having this problem "how to get stable extraction of corks using system of A", will have the following ingredients:
      a) A6 provides that the force has to change versus the extraction level
      b) A6 provides a hint to the word "pitch size".
      c) A6 provides an implementation using a spring.

      now the skilled person would follow think like this:
      - "well I have a solution in A6 that uses the principle of different forces for extracting the cork".
      - "I think I can use that principle for my system A5, but how I can implement it?".
      - "I have a screw and turns and I known that the distances between (because I hinted by the term "pitch size" in A6) the turns are correlated to the forces that are applied to the cork."
      - this would inevitably leads the skilled person to implement the solution of A1.




















      Delete
    5. The at least two pitch sizes make the cork more stable during extraction (A1, [10]). Guaranteeing stability during extraction is important, as the likelihood of breaking is greatly reduced (A1, [11]). Hence, the objective technical problem is to adapt the cork extraction element of A5 so that the likelihood of breaking is reduced. A2 teaches that the possibility of breaking the cork while pulling it (extraction) is reduced if there are fewed turns in the upper half of a cork piercing element. Hence, with possibly some additional argumentation as to the applicability of this teaching to the cork extraction element of A5, a skilled person WOULD apply this teaching to come to the subject matter of claim 2, be it with two pitch sizes. "Two" falls within the range of "at least two". Hence, claim 2 is not-inventive.
      Please rate the probability of this being the good answer against that of your abstract argumentation relating a spiral spring to a spiral extraction element.

      Delete
    6. and you believe that that your cited problem " to adapt the cork extraction element of A5 so that the likelihood of breaking is reduced" is not solved by A6? as you mentioned above.

      so you have chosen A5 as CPA for claim 1. At least we agree on this important point!

      In my view (and also of the solution providers) there are two solutions, one in A2 and in the other in A6. You have chosen A2 because you think it is clear and it completes the puzzle.

      I have chosen A6 because I thought that A2 was ambiguous and an IS (A5+A2) attack based on it would be weaker than what I argued above (IS: A5+A6) with A6.

      Delete
    7. Maybe I was a bit confused about which claim we were talking about, claim 1 or claim 2. Anyway, for the disclosed features it does not matter.

      For claim 1 I have A6+A2 (A6 CPA).
      For claim 2 I have A5+A6+A2 (A5 CPA). The second solution provided by the "solution providers" is A6+A5+A2 (A6 CPA).

      Delete
    8. BTW, it does not matter what I believe. I will be happy to believe that the "A6"-solution proposed by you also reduces likelihood of cork breaking. The point is, A6 does not indicate that specific effect as being associated with the different-pitch-sizes feature that is the missing feature in A5. However, A2 DOES indicate such a feature. This is the main difference in a COULD vs WOULD approach. It may well be that your A6-solution works. And a skilled person COULD take that approach. Without an explicit hint or suggestion to the desired effect of reduced cork breaking in A6 however, it is not certain that he WOULD.

      Delete
    9. in fact A6 [009] states: "Once the spring 5 is completely compressed, the user will pull the handle 4. This action together with the spring extension will result in an easier and more stable removal of the cork". so reduced cork breaking WOULD be achieved

      Delete
    10. Dear "Anonymous14 March 2017 at 09:42";
      yes that was my point for using A6 as suggesting the solution of A1 in combination with A5.

      the ambiguity of A2 gave me a lot of doubt at the Exam and thought it is safer using A6 in combination of A5. Although it may appear at the first place difficult; howver as I explained above it leads right the way to the solution of A1.

      in addition, the solution of A2 is the same solution as A6. It is not an alterrnative. Thus, starting from A6 we would have a bog problem formulating the objective problem. In other terms, the solution is already in A6 why the skilled person would search as another implenetation in A2.

      I hope that I would not be penalized in marks for my (different) thinking approach.

      Delete
    11. Your discussion is difficult to follow.

      For me the inventive step attack on claim 1 was rather straight forward. A6 is very close. It only misses the varying pitch, but it already has a completely different feature with exactly the same effect (stable cork removal). Only A2 discloses the missing feature and it does so in combination with the desired effect.

      So start with A6 and find an alternative solution for obtaining stable cork removal. Add the varying pitch from A2. You can either choose to remove the spring (not needed anymore) or keep it in. Doesn't matter for claim 1.

      Delete
    12. why do you think that the solution of A6 is COMPLETELY different from solution of A1?

      I don't think that starting from A6, we have a straight forward IS attack. The solution of A6 is not completly different from the solution of A1/A2.

      A2 uses the same solution PRINCIPLE as A6 i.e. applying different extraction forces on the cork while extracting, right? A1 [10] explains this as well, right?

      The only difference is that A2 implements that solution by having different pitch sizes on the secrew itself, while A6 implements that solution by enabling a spring that can have also different pitch sizes while expanding.

      Thus, in my vew A2 is a mere different implementation for the same solution. An alternatove solution would be using completely different priciple.

      In addition, in the guidelines (in analogy with our case) in the context of R 43(2)the term "alternative solutions" is interpreted as "mutually exclusive possibilities". Do you see any mutual exclusion between the solutions of A6 and A1?

      Delete
    13. For attacking a claim, ALL features of the claim have to be found in one document (novelty), or in a combination of documents (inventive step).
      Claim 1 has the feature of A CORK EXTRACTION ELEMENT HAVING DIFFERENT PITCH SIZES.
      A6 may disclose a spring, and the spring may obtain different pitch sizes, but A SPRING IS NOT A CORK EXTRACTION ELEMENT.
      So, the missing feature of "A CORK EXTRACTION ELEMENT having different pitch sizes" can ONLY be found in A2.
      So, only a combination with A2 will be able to attack claim 1.
      This is straight forward as can be. If not, I definitely recommend you to do one of the Deltapatents courses.

      "To provide an alternative solution" is the OBJECTIVE TECHNICAL PROBLEM. It does NOT mean that any other document than A2 can be considered as an alternative to A2 for attacking claim 1.

      Delete
    14. I see your point and also I understand why do you see it straight forward. I also have built a nice matrix (the DeltaPatent one which is a nice method BTW). I also see that missing pieces of the puzzle of A5 and A6 wrt to claim 1 can be found in A2 (if unambiguous). In this aspect, it is of course straight forward to complete the puzzle by just looking into the matrix cells...

      However, my point is that I had the following issues: why not using A5 as closest prior art? and the second issue (which I would not had to think about it and just admit it since it completes the puzzle) is that I have found that A2 was not automatically suggesting different pitch sizes (see above); and I had to use A6 instead...

      Delete
  28. In a very weak moment, I decided that the claims are not entitled to claim priority because of the withdrawal, however, all my attacks are quite similar to Joeri and Jelle's model solution. Does anyone know whether the Examiners will punish the attacks because of the wrong time rank?

    ReplyDelete
    Replies
    1. I also considered this lack of entitlement as the letter does not explicity state the priority documents were published/open to the public, raising the possibility that the client gained unauthorised access to the priority docs......at least this did not affect your attacks.

      Delete
  29. question regarding claim 3

    paragraph [06] of A5 gives a clear disclosure of the opener made of plastic. This means that any component of the opener of A5 is made of plastic including the supporting element which is the housing of claim 1 (as explained above the feature of housing of claim 1 is unclear and thus covers supporting element 5 of A5).The polyethylene is given as an example of plastic.

    Thus for claim 3, A5 can be the closest prior art and dicloses all features of claim 3.

    I don't see A6 closer thant A5 to claim 1 and claim 3...

    ReplyDelete
    Replies
    1. In my opinion, a reasonably broad interpretation of 'enclosed chamber' will not include the open support structure of A5.

      Like A6, also A5 misses the varying pitch. Plus, the polyethylene is only disclosed for the handle. The preferred material for the support element is metal. Possibly, also an unpreferred plastic support is disclosed, but no polyethylene support. A6 has both the enclosed chamber and the polyethylene. A5 has nothing from claim 3 that is not also disclosed in A6 (only the arms and ridges of claim 2).

      Delete
    2. I don't think that we have to "reasonably broadly interpret" the enclosed chamber. It is unclear, and thus that feature cannot even be considered.

      correct, polyethylene is disclosed as example for the handle in [06]. However the handle of [06] is either part of what you called "unpreferred embodi" or part of the "prefered embodi", right?
      if it is part of "unpreferred embodi", it logically follows that the whole opener is polyethylene.

      Delete
    3. So any desk having a wooden top logically also has wooden legs?

      Delete
    4. yes, if it says in addition (like in A5) that the whole desck is made of wooden.

      Delete
  30. "I don't think that we have to "reasonably broadly interpret" the enclosed chamber. It is unclear, and thus that feature cannot even be considered."

    That is one way of looking at it. Now also please provide arguments as to the other way of looking at it, meaning that the enclosed chamber IS clear, or why at least the exam committee could think it is clear. Then assign probabilities to the correctness of each interpretation, and choose which one is more probable to be correct. And some free advice: sticking to the wrong interpretation does not help you pass the exam.

    ReplyDelete
  31. As I understood the case law (please correct me if I am wrong), there are two possibilities for this case.

    1) if you can argue that the term had no specific meaning, the term would lose entirely its effect of delimiting the claimed subject-matter from the relevant prior art.

    2) novelty and inventive step had to be assessed in the light of the prior art identified on the basis of ALL its technically meaningful possible interpretations.

    in both cases 1) and 2), the supporting element of A5 falls in the unclear feature of claim 1.

    If you agree with me that the housing of claim 1 is covered by supporting element of A5, would it make sense to better use A5 as the closest prior art for claim 1?

    ReplyDelete
    Replies
    1. In the real world, the attack on claim 2 would be A5 + A2, taking the broadest reasonable meaning of the claim and highlighting the relative and undefined term "enclosed chamber" and the equally vague term "generally cyclindrical"; in the contrived and formulaic world of paper C, A5 + A6 + A2 is likely required even though the amalgamation of necessary component parts of the devices described in A5/A6/A2 has a pick n' mix quality that could undermine the whole inventive step concept - akin to unleashing a tornado in an airplane junkyard and finishing up with a fully functioning 747 (yes I did do an A5 + A2 attack !).

      Delete
    2. ok, thank you. You also see that the screw of A2 has (for sure) different pitch sizes!

      I still didn't see any argument here in the forum against using A5 as the closest prior art document for claim 1 (taking into account the unclarity of the housing feature).

      For me, starting from A5 for claim 1 would be the easiest way. Satring from A6, it would be really an issue for finding the right objective problem.

      Delete
    3. Words have meaning, also unclear words. A cube is not 'generally cylindrical'. A wire frame is not an 'enclosed chamber'. The not fully cylindrical support of A5 is cylindrical enough for an attack. Also because it will fit nicely over a bottle neck, which is why it needs to be cylindrical. But the support is not enclosed. It is very open and misses the finger protection function that you do find in A1 and A6. That makes A6 closer for all claims except claim 2.

      I don't understand your problem with finding a technical problem for A6 as CPA. In many exams the problem is to find a different way of achieving effects that are already present in the CPA. Same here. See above.

      A5 misses everything that is missing in A6, and more. How could A5 ever be closer?

      Delete
    4. "Taking into account THE unclarity of the housing feature". This is not a matter of fact, but a matter of opinion.
      An argument against the use HAS been given: A5 does not disclose a housing PROVIDING AN ENCLOSED SPACE SO THAT FINGERS DONT GET TRAPPED.
      You may find the argument not convincing, you are totally free in that respect. But please understand why (at least some, if not most) other people DO find it convincing: in the device of A5 fingers can get entrapped! Whereas in the one of A6, they cannot.
      Again, very straight forward.
      You may have overlooked this at the exam. That is human. That however does not make the right answer less correct.
      And YES, arguments can be given for A5 to be the closest prior art. Those arguments however are (most probably) less likely to succeed.

      Delete
    5. In addition, although unclarity may play a role in practical situations, I think it is safe to assume that in the exam, one should not expect unclarities to play a major role. As will also be clear from the above conversations, unclarity is open for too much discussion. And that is not what the exam is about; the exam is merely a puzzle of features, to be glued together by effects. So the best way to approach the exam is to turn on your mind "willing to understand", and take the wordings in the way that they are given. Nitpicking does not get you very far, if by doing so, you neglect essential "puzzle solving" information.

      Delete
    6. Dear Joeri, thank you for your comments and answers. I also appreciate this forum giving us a great opportunity to discuss.

      regarding your point on the finger protection:
      1) as mentioned by our colleagues above the "Enclosed chamber" is undefined and the support of A5 can be seen as enclosing a chamber as well (see other comments above).

      2)the finger protection is not claimed. As you know, a claim cannot be interpreted in light of the description. The claim is just disclosing a housing. Protecting the fingers or not, this should not have impact on the CPA. The 3 criteria for CPA selection are clear.

      regarding CPA:
      1) A5 has all features of claim 1 except the pitch size feature; same purpose and same field as claim 1. A6 is also fulfilling the same 3 requirements. Thus, we have to find another criterion to decide which CPA to use.

      2) My point is that since we have the choice of starting from A5 why choosing the problematic one! A6 as CPA is problematic, because it already comprises a solution and thus the problem can be defined in multiple ways:
      a) how to find an alternative solution for A6
      b) how to improve the solution of A6
      c) NO problem at all, because the solution is there i.e. why I should look at for a solution somewhere else!

      because of a)-c) arguing the PSA starting from A6 is disatvantageous compared to arguing a normal PSA starting from A5.

      Delete
  32. Please complete your argumentation:
    "As you know, a claim cannot be interpreted in light of the description." -> Why not?
    "Protecting the fingers or not, this should not have impact on the CPA. The 3 criteria for CPA selection are clear." So why should it not have an impact? And what are those three criteria then? (I hope you will see that PURPOSE is a KEY ELEMENT in the cpa, despite it not being mentioned in the claim.)

    ReplyDelete
    Replies
    1. Relative to the corkscrew of A4, A5 does offer finger protection and thus discloses an enclosed chamber. As "enclosed chamber is not defined, diagrams are all we have.

      Delete
  33. Dear "Anonymous14 March 2017 at 16:34", thanks for your answers. Of course, I may be wrong and you are correct (which is most propbably the case) but I am just trying to defend my arguements and convince you.

    1) the claim can only be interpreted using its words. Art 69 EPC applies at the national phase only...

    2) the purpose of the claim as I undertood it (also from the DeltaPatent C book) is the purpose of the claim as a whole and not the effect of individual features of the claim.

    2) the 3 criteria for choosing CPA are: field, purpose, number of common features. The purpose of claim 1 is the optimal extraction of the cork. This is the purpose of A5 and A6. In my opinion the "finger protection" purpose is too specefic. I am not inventing a corkscrew to protect the fingers...

    ReplyDelete
    Replies
    1. I really cannot understand why you are trying to convince me, if you think that you yourself may be wrong. And it is really weird that even if you know the elements of the PSA, you decide to invent some additional requirement that a purpose should not be "too specific". (Whatever that means.)
      Please, if you have the Deltapatents book, READ IT.
      I am done with this discussion.

      Delete
    2. If "generally" had not been in the claim we would all be doing the conga.

      Delete

    3. Ok. Last try, but I will probably not convince you.

      1) Art 69 has nothing to do with it. As said before, words have meaning. Three words in the claim (housing, enclosed, chamber) suggest some sort of closed space. For the skilled person that means walls, floors and ceilings. It does not have to be air-tight, but it must be closed. This interpretation is supported (not determined) by the drawings and the description.

      I hope that the enclosed chambers in your own housing are more closed than the support of A5.

      2) The purpose of the claim is a combination of the purposes of all features. The main purpose of claim 1 is removing corks from bottles. That will be essential for CPA. Both A5 and A6 have it.

      3) There are two further purposes. Finger protection (only in A6) and stable cork removal (only in A6). So A6 has more common features (the housing providing an enclosed chamber) and more common purposes. A6 is more suitable as closest prior art.

      A credible attack on claim 1 can start from A5. Of course. It is the starting point for attacking dependent claim 2 (at least, that's what we expect to be the model answer). The result of the attack on claim 2 is also covered by claim 1. But A5 misses two features of claims 1 and 2; the enclosed chamber (taken from A6) and the varying pitch (taken from A2).

      Delete
    4. Similarly, final offereing on claim 2.
      A5 + A2 uses a liberal interpretation of a number of undefined terms but can be reasonably argued based on the definitions and diagrams provided.
      A5+A6 (+A2) fundamentally does not work as it requires a further step beyond what is disclosed in A6, namely the addition of openings in the cylinder to accomodate the cogs of the levered arms - where in A5 or A6 is such information or motivation provided ? So as well as asking the skilled person to combine three documents for the attack you are asking him to adapt the cylinder of A6 and create openings in it. Furthermore, once openings for cogs/levered arms are provided, when added to the openings at the top and bottom of the cylinder, where is the almost air-tight enclosed chamber ? If A5 +A6 + A2 was the required attack the information provision was flawed.

      Delete
    5. addendum to the above and to confirm A5 + A2 attack is the strongest attack on claim 2: it is stated that there must be at LEAST 2 ribs (5c) in the supporting element of the A5 corkscrew - put in 6,8, 10 or more ribs and the chamber is in effect fully enclosed (and no finger nipping).

      Delete
  34. The EQE is a game and not real life.

    The rules on how to interpret claims and prior art can and must only be deduced from past papers. It seems that the deltapatent people have a good grasp of how broad you need to interpret claims and prior art. Listen to them. If you don't agree with them, your arguments may still be sound, but in order to pass, you might need to focus on getting a feeling for the way the exam committee's minds work.

    ReplyDelete
    Replies
    1. Dear coffeekatie,
      Is it a game with undertandable and reproducible rules or is it a lottery

      Delete
    2. Who is best suited to practise patent law and to enrich the patent profession- the person trained to identify "the answer" or the person who constructs an equally valid answer using on the day creative argumentation ?

      Delete
  35. I think so far there have never been negative points in C (and this is also what I was told by colleagues who sat the exam in the past), therefore I decided to run just more than one attack per claim where I considered it might work. For claim 1, I fully argued both A5+A2 (stating that 5a+5b+5c together are roughly cylindrical) and A6+A2. For the dependent claims, I referred to these arguments and extracted the remaining features from the documents I already had. For claim 4 I added A3 (no synergy between the ergo-effect and the rest). For claim 5 I used the fair (novelty) and argued that it can't be a non-prejudicial disclosure because it is not known if it's really the same guy, and they have not apparently filed some fair disclosure statement on time.

    ReplyDelete
  36. The results are in. Seems that this year a whacking 62% passed - however this value seems so high that I think I might have misunderstood excel. I passed with 70 points - hope no error there :)

    ReplyDelete
  37. Jelle , I have gotten all the attacks (with correct arguments except for Claim 2 where I argued Inventive step over A5+A2+A3

    I also said C1 was not novel over A2 (but argued the IS attack correctly for C1)
    and that C7 was not novel over A2 (do these two WRONG Novelty attacks get negative points)?

    I got 39 points, how is this possible? The arguments are correct and written in the 7-step format. All the effective dates and evidence list documents are correctly identified as well.

    ReplyDelete
    Replies
    1. If it is big red and says don't push, I will push it.30 June 2017 at 17:53

      I'm looking forward to the Examiner's comments being issued. I am in a similar situation to you where my attacks and analysis is the same as at the top of this page, but I have consistently started from the opposite document as closest prior art. I scored 12. Ole!

      Delete
    2. You will indeed have to wait for the Examiner's report. Then the expected attacks will be clear and sometimes comments are given on how 'not expected' attacks were marked.

      Delete
    3. If it is big red and says don't push, I will push it.6 July 2017 at 17:52

      In mourning here, I've found the cause of death in my answer. Fudged A2 having a both straight and spiral sections and was inconsistent with construing an "enclosed chamber". I then carried this through the majority of the paper wrecking all the argumentation. Ole!

      Delete
  38. My CPA is correct in all cases (except Claim 2)..

    ReplyDelete
  39. Hi,
    I have also scored very low in C (34 points). In my view claim 1 lacked novelty based on both A6 and A2, so in the exam I performed two novelty attacks for that claim.
    For claim 2 I argued lack of inventive step based on A5 + A2. In the DeltaPatents model answer the combination is A5 + (A6 + A2).
    What feature am I missing from A6 that you consider to be there.

    ReplyDelete
  40. Hi!

    I am also looking forward to the Examiner's report... I scored 40 and had all the correct attacks (except for claim 3(2)) with the delta's steps of argumentation as learned on the course + effective dates + list of evidence. Can't understand why it wasn't enough. And don't know how to do any better next time. This is really frustrating...

    ReplyDelete
  41. Comparing Deltapatent and my copies, I have only claim 3a wrong. I did the weakest attack for claim 2.
    But the rest is correct.
    In total, I got 41. Frustrating!

    Re Sitter

    ReplyDelete
  42. I carefully studied tutor comments above after the exam, and thought that I had almost full correspondence, both in the choice of prior art for attacks and in the argumentation. I used the alternative attack for claim 2. I hoped for 60+, got 46.

    NN

    ReplyDelete
  43. Still don't get it for C...
    As I said three days ago, I got 41. I lost 20 points for claim 2 and let's say 8 points for claim 3 (claim 3a attack is wrong).
    In the introductory part, I discussed the fact that A4 is a post-published document but it's true that for claims 5-7, I turned my argumentation as it was A4 itself and not the corkscrew sold at the wine fair....in total, they withdrew 59 points...hard to understand!

    ReplyDelete
    Replies
    1. You seemed to have lost 28 marks bij not having the right attack.
      Very good candidates who have all attacks right rarely get more than 80 marks. Thus, it is very difficult to get all facts/arguments intended by the committee. If you score 60% of the marks on the intended attacks and you miss two attacks then it is probably over and done. The distribution of the marks as you will soon get may help in getting a better clue where you lost your marks.

      Delete
    2. I assume you say "it is probably over and done" in the sense "it is a failure" then...

      Delete
    3. Indeed, not possible to pass anymore

      Delete
    4. Hello, I collected my results. I got 6/12 (or 5/12 according to the other marker) for the general part of C, while I consider that I wrote everything needed, in comparison with the Examiner's Report. So, I did not understand. I made a colleague patent attorney of mine reading this part and doing the same comparison.

      I wrote:

      Claims 1-4 are disclosed in the priority document P1.
      (I gave the effective date and the legal basis).
      Claims 5-7 are disclosed in the priority doucment P2.
      (I gave the effective date, did not put again the legal basis)
      I discussed that the fact that no fees were paid and that P1 and P2 are deemed withdrawn is of no importance for the right of priority if a filing date has been accorded for those earlier application - Art. 87(3)
      Then, I discussed the two alternatives of claim 3.
      Then, I discussed the usability of A2, A3, A5 and A6 (as Art. 54(2) documents).
      Then, I discussed the usability of A4.

      My friend colleague patent attorney told me that I lose those 6 or 7 points because my first paragraph relates to claims 1-4 (so, claim 3 included) while my fourth paragraph relates to claim 3.
      I tend to agree that it can cause confusion for the reader, but still, if you say something general for claims 1-4 and then, later on (namely on the same page, but two paragraph down), you precise the stuff for claim 3 (and you do it exactly in the term of Examiner's report), why should I lose 50% of the mark there.

      Just because of that, I could transform a "fail" into a "compensable fail". I won't appeal anyway (too expensive)...

      Can someone say something about that ? Thanks in advance!

      Delete
  44. Sitting in the same boat here and still scratching my head if I lost a lot of points due to handling of A4.

    I argued that A4 is post-published written evidence of a prior oral / public disclosure. For me public use is the same as public disclosure. Why does A4 state the feature of the coating (Polyfluorocarbon) if the coating would have only been possible to analyse if buying and analysing the corkscrew. I can interpret A4 that Rolha also publicly/orally disclosed the nature of the coating.

    As per Case law: In accordance with G 1/95 (OJ 1996, 615), alleged public prior use does not constitute a ground for opposition under Art. 100(a) EPC but is a fact cited to substantiate such a ground (T 190/05).

    A4 substantiates the prior use = prior public disclosure.

    A4 substantiates the feature of the coating. I also said that Rolha could be invited to witness (did not cite the caselaw): According to the board, nomination of a witness for subsequent examination is deemed to constitute indication of evidence (see also T 28/93, T 988/93 and T 241/99). If I thus use A4 ("A4 discloses....") in the attacks and state in the Facts&Evidence that A4 is evidence of public disclosure (use) I wonder if this is where I lost points.

    I will have to see where I lost the points once I get the mark/result letter.

    ReplyDelete
    Replies
    1. confused still7 July 2017 at 17:56

      with you, and same marks. All attacks bar second partial problem of claim 2 (I actually jigged my answers around in the exam and then forgot to go back and complete it, so missed the first part of the argumentation for the features of claim 1, although dealt with in claim 1 already). Otherwise, all the same and argumentation along the point of the Examiner. Have referred to my boss for their view (whos reply is likely to be, "well almost, for the efforts of appealing though you might as well resit....")

      Delete
    2. confused still11 July 2017 at 12:34

      Well breakdown in and it did little to explain how I failed!. Claim 2 was 6/20 which is fine I guess (right attack, just in exam haste forgot to tackle a part of it). The remaining marks confuse me though. The general section worth 12 marks I only scored 5, despite being content correct and almost word for word the Examiner report (with more detail!) - that would have been enough to achieve a compensable fail.Similarly for claim 3 (scoring 5 of the 10) and definitely claim 7 (scoring 1 from 9) when attack, closest prior art argumentation, OTP etc were exactly as the Exam answer! Very annoying

      Delete
  45. For who hasn't seen it yet (unlikely when you're here), the examiners' report is out. http://documents.epo.org/projects/babylon/eponot.nsf/0/7C370EF0DC1D496FC1258154004BEAC8/$File/ExRep_2017_C_EN_for_web.pdf

    Happy to see that it has the same attacks as we posted above, including the A5+A2+A6 attack we expected to be preferred for claim 1.

    It will be interesting to hear from the candidates who were able to come up with 'other plausible, well-reasoned attacks' (in the wording of the exam committee), how many marks were awarded for those. I am especially interested in how many marks you could get for an A6+A2+A5 attack on claim 1. Although A6 may not be closer than A5, the attack seems to work perfectly.

    ReplyDelete
    Replies
    1. I got 12 and 13 points from two markers for claim 1 with the A6+A2 attack, and 0 points from both markers for claim 2 for A6+A2+A5 attack.

      NN

      Delete
    2. Interesting. If that wasn't a plausible attack, then I wonder what was.

      Would be nice to hear from more candidates so that we can discuss this with the committee at the tutors meeting.

      Delete
    3. In general the marking was too strict!
      If you miss CPA for claim 1 (and thus miss it for claim 4 and claim 3(1)), you would be penalized similarly 3 times! this costs 35 Marks at least! Knowing that 80% of the marks at most are usually obtained (by 99% of the candidates), if you miss CPA for claim 1 you fail the Exam!!!
      You lose more than half of the marks of claim 5 if you do not mention „The chemical composition of a product is state of the art when the product as such is available to the public…“. So you get less marks for spotting the prior art and all the features that anticipate the claim with their references!! In other terms, we are marking more for very special cases while if you do the “every day” reasoning correctly you get less!!!!
      The marking of claims 1 and 2 should have been less strict and also should have assigned less than 20Marks. Full marks should have been given for candidates that got stuck with the term “generally cylindrical”. This is because the suggested corrections were not “perfect” also!!! For the following reasons
      The report considers “generally cylindrical” is same as “cylindrical”!!! or at least the report is completely silent about the term “generally” cylindrical. A lot of candidates spent time analyzing this term which is now simply dropped from the report!!!
      I understood from DP lecture that every term in a claim has a given purpose and not put by accident. I have spent a lot of time trying to interpret this term “generally” and adapt the attacks accordingly. I only realized that it does not fit with the puzzle (‘game’) after 2,5h!!! too late…
      I have interpreted “generally cylindrical” as the chamber is being partially not cylindrical. This means that our chamber is only e.g. 80% cylindrical.
      With that interpretation (which makes sense) A6 does not anticipate that feature because the chamber in A6 is 100% cylindrical which renders the proposed attacks on claim 1 and claim 2 not correct or at least not complete if we don’t consider the term “generally”.

      On one hand you are penalized for not referring to “chemical composition…” in novelty assessment for claim 5 and on the other hand they drop an important term “generally” from the whole claims for assessing IS/Nov!!!

      For this reason, I would have expected a less strict marking over the whole exam.

      Delete
    4. Hi,
      I did the expected attacks for all claims apart from claim 2 where I did A6+A2+A5 - 0 marks. Still passed overall but I was surprised to see that no marks were picked up even though there would have been a lot of reasonable argumentation that would have more than likely been acceptable before the EPO. This is the nature of the paper though, and I guess it is a bit similar to the 2007 situation where I understand that candidates who started from a different CPA and did a good PSA still failed whereas candidates who started from the correct CPA but did a poor PSA, after being awarded an extra 10 marks, passed (I only have this info second hand from a disgruntled employee who was on the failing end!). Seems like a bit of a failing of the paper and is not a very pragmatic approach.

      Delete
    5. Hi!

      Same here, I got 14 and 13 points from two markers for claim 1 (A6 + A2) and 0 points from both markers for claim 2 (A6+A5+A2). In total 40 marks, whereby even 5 marks from the plausible attack for claim 2 would have been enough. Seems quite strict, although I could have scored better in other attacks as well.

      -FirstTimeSitter-

      Delete
    6. A furhter confirmation, a6+a2+a5 for claim 2 = 0 points. I think however that this strict approach for claim 2 pushed the markers to be more generous on the other claims, as they still let me pass the paper

      FB

      Delete
  46. Look at how inconsistently we are examined.
    Problem and solution approach as seen by the Exam Com.

    C- Exam (claim 2)

    1. “The effect of feature a) is to provide higher cork stability during removal.”
    2. “The effect of feature b) is to protect the user from trapping a finger”
    3. "The two differences do not mutually influence each other and have no synergistic effect. They solve separate partial problems and should therefore be treated separately (see the Guidelines, G-VII, 5.2 or 6). "

    B- Exam
    1. “The effect of a garment as the attaching means is that sensors required for pulse oximetry are attached in a secure, comfortable and reliable”
    2. “the effect of correcting the sensor output signals is to provide high signal quality”
    3. “The objective (SINGLE !) technical problem may therefore be formulated as: Providing a reliable and comfort table system for long-term remote monitoring of the vital signs of a person, including small children and babies, in combination with a high signal quality.”


    The difference between effects of the C-exam has triggered partial problem…However, the SAME level of difference between the effects in Exam-B has led to an artificial combined problem.
    I agree with the C-exam approach (which is in the Guidelines). If you try to follow the same guidelines for the Exam B, you will never come to the idea of amending the claim as suggested by the Exam B, because you would have to use partial problem approach. Using the partial approach for B exam, suggested claim 1 would not be inventive!!!!

    In my view the Exam B for this year was simply not correct or at least not fulfilling the Guidelines rules.

    ReplyDelete
  47. I agree, paper B was a mess because the jigsaw did not work properly. Many candidates I spoke to had different answers that all seemed reasonable.

    ReplyDelete
  48. interpreting the term "Generally circular" in a normal way (see below), you end up choosing another CPA for claim 1, as A6 does not fit as CPA because "generally cylindrical" is not disclosed in A6 and has no effect...However, "generally cylindrical" can be derived from A5. unfortunately, if you correctly followed this direction you lost the Exam.


    -----------------

    “The term generally cylindrical is not meant to limit the shape of the body portion to a strictly cylindrical shape, and it includes other shapes defining an axis such as stepped or conical configurations.” US 5970829 A

    “the term generally cylindrical does not refer necessarily to a right circular cylinder, but rather to a more generic definition of cylinder as embraced in classic geometry.” US 6736229 B1

    “By the term generally cylindrical is meant that a cross-section of the generally cylindrically shaped pleated filter element in a plane perpendicular to the axis of the cylinder is circular or elliptical.” EP 1136112 A1

    “"generally cylindrical" is to be interpreted as encompassing seals having transverse cross- sections which depart from strictly circular in an unconstrained condition.” WO 2013052757 A2

    ReplyDelete
    Replies
    1. Remember that there is no "normal way" for interpreting things in eqe, everything, especially definitions, must be supported in the piece of information given, otherwise it is matter of speculation which brings to "resitting" (and I learned the hard way the value of definition in eqe).

      For example in eqe 2015 the fact that the word "chatter" implied vibrations was explained in one of the annex and this allowed for using a third annex which described a vibration apparatus. Using common general knoweldge was not to avail and lead to the use of the wrong reference.

      It is hard to depart from ourway of thinking or working, but you like it or not, these are the rules of eqe.


      Trust_me

      Delete
    2. I completely agree with you and I trust you as well.
      what you have mentioned is what I have learnt before I do the exam. In the world of EQE you have to rely only on what is in the paper; nothing more. Unfortunaltely this year it seems that this rule is broken by the Exam Comit itself in papers A and C.

      as a candidate the first thing you spot in claim 1 is terms like "generally clylidrical". the first thing that come to question is how you can interpret such a term??? the text does not provide such as defintion and you cannot use general knowledge.

      the report assumes "generally clylidrical"="cylindrical". However, where in the text it is defined that "generally cylindrical" is simply "cylindrical"!!! or there is some extra knowledge used here?

      i also learnt, for EQE, that each term in the claims in partuclar claim 1 has a certain purpose and cannot be added there just for limiting the claims...

      So what is the idea behind adding the term "generally" in claim 1? or why the term "generally" is put in CLAIM 1 if it is not of any use?!

      Surprisingly, this term "generally" has been canceled/ignored in the feature mapping of the report which is not allowed under EPC as well as EQE rules...

      the EQE rule I have learnt for novelty requires that EACH claim FEATURE must be mapped to a corresponding one in the prior art. This may require using definitions in the paper. And references of where the feature (and definitions if any) is disclosed must be mentioned.

      This rule is perfectly followed for claim 5, where EACH feature is mapped e.g. the term "straight" was not be ignored!

      In the report the feature mapping has been based on this feature "chamber having a cylindrical shape", dropping the term "generally"...I don't think this is a EQE practice, in view of the previous exams, and even of the current exam (claim 5's attack is an example)

      Delete
    3. The word "generally" (similarly to substantially, approxinatelly..) is used for dealing with tolerance and implies a certain deviation from the described value.

      See Gui F-IV 4.7 ("Terms like "about" and "approximately"), which curiously has an example related to "substantial cylindrical": "Such a word may be applied, for example, to a particular value (e.g. "about 200°C"), to a range (e.g. "about x to about y") or to a structural unit of an apparatus (e.g. "a tray plate with a substantially circular circumference""

      The choice of A6 over A5 (both describing "cylindrical") is due to the absence of coating in A5.

      A6 explicitely describes a "cylindrical shape": this expression falls of course within the scope of the broader expression "generally cyclindrical". If you miss that point, no offense, there is still some work to be done for your preparation.


      Trust_me

      Delete
    4. the "tolerance/deviation" you are refering which causes the problem, because the "deviation" is not defined/fixed and everyone may have his own interpretation of the "deviation". The prouve is your and my interpretation of "generally"!!!


      The term " gnerally cylindrical sahpe" may or may not be broader than "cylindrical shape"!!!! being broader is your interpretation which is one of the possible interpretations!!

      however, if you consider "generally cylindrical" as 90% cylindrical and 10% other shape which is the common interetation (see references above), the term "generally cylindrical" is not broader than "cylindrical".

      The choice of A6 over A5 is rather based on the fcat that least amount of structural modification is needed (which is discutable). However, when you are faced with a ditinguishing feature like "generally cylindrical shape" you would not choose A6 as CPA because none of the remaining prior art discloses "generally cylindrical shape"+its effect. A5 can be interpreted as disclosing "generally cylindrical shape"...

      in understand that you try to defend the Exam solution, but I don't think that we can rely on a Guidelines section that deals with clarity issues to build a claim for examination!!!

      in any case, I apprecite having this opportunity to discuss these issues with others as this may help us improving things on both sides...




      Delete
    5. I don't defend the solution, I am just trying to point out what the term "generally" means in the patent field.

      I am sure that everyone with expertise in the patent field would have no problem in recognizing that "cylindrical" does fall within the scope of "generally cylindrical". The word was put there on purpose to test candidates preparation, and there is a lot of past papers C full of this kind of expressions.

      Hope someone else can explain and persuade you, however I think this is matter for pre-Exam not paper C.

      If you think to be right, you can lodge an appeal but you are going to waste your time and your money. You did the wrong attack, the sooner you learn that, the better.

      PS: when considering claims, the Opposition Division is bound to Guidelines and you can bet that the word "generally" would be interpreted as the guidelines do require.

      Have a nice day.

      Trust_me

      Delete
    6. I agree with unknown above. If at work you say 'I generally will go home at six [because my wife wants me to walk the dog]' we all understand that you will not have fight with your wife it you go home at exactly 6. There is also a tolerance zone around six, just like the Guidelines indicates for 'substantially cylindrical'. All definitions given above confirm that generally cylindrical includes strictly cylindrical [and some other similar shapes]. Thus, a disclosure of cylindrical clearly anticipates generally cylindrical.

      Delete
    7. lets consider good concrete example of 2007' C paper.

      Claim 6 covers a cup. The cup of claim 6 has a base portion and top portion (what you called other similar shape) of cylindrical shape but the top and bottom parts have different diameters. This is exactly what the term “generally cylindrical” would cover as you also mentioned. The receptacle of A5 has a cylindrical shape.

      Following your logic, the only difference between receptacle of A5 and claim 6 is the sleeve element?

      please note that the report treated each of the two shapes of the cup separately and did not consider them under a single overall shape…in line with the comments above.

      Delete
  49. Usually every tiny detail of the feature mapping is written in the report. I am wondering why the report did not explicitly refer to your comment that "cylindrical" anticipates "generally cylindrical" and to the Guidelines; may be because it is a basic straightforward (pre-exam) issue.

    this a very advanced and complex theme that needs face to face discussions. Unfortunately, I don't have time (and money) to lodge an appeal for that, but I am writing "notes/techniques" based on the issues/experiences I encountered that may help me as well as other future candidates...

    and thanks for your your advice.

    ReplyDelete
  50. here is a BoA decision in line with the comments above. It involves the features "generally dome shaped" vs "dome shaped". The BoA considers under 1.5 that "dome shaped" is not covered by "generally dome shaped"...

    the C report; however, considers "cylindrical shape" as being covered by "generally cylindrical shape"

    http://www.epo.org/law-practice/case-law-appeals/recent/t121799eu1.html

    the appelant comments on the meaning of "generally" is also interesting and confirms the above...

    ReplyDelete
    Replies
    1. - TIM

      Not at all.

      The Board did not question the amendments but merely excercised her discretion for non admitting a lately filed amendment("This concerns the question whether the "true dome shape" resulting from the deletion of "generally" can exist together with the body portion having a rectangular or square base wall").

      Put another way, the Board refused to analyze the "true dome shape" embodiment as it would have implied additional reasoning about the consistency with the remaining claimed features.

      A skilled tutor, the Guidelines, several candidates, several references cited by you including a decision stand against your thesis. What else is necessary to persuade you?


      - Tim

      Delete
    2. regarding "This concerns the question whether the "true dome shape" resulting from the deletion of "generally" can exist together with the body portion having a rectangular or square base wall”

      If “generally dome shaped” covers “true dome shaped”, such a question would not be raised at all because granted claim 1 would have shown/covered that “true dome shaped” can exist with rectangular base wall.

      -The claim of the concerned patent has features (in short): A+B, where B=”generally dome shaped”. The claim has been amended to include A+B’, where B’=”dome shaped”. Following your interpretation of “generally”, there is no reason of not allowing such an amendment because it narrows down the scope from A+B to A+B’. The BoA mentions that they see an allowability issue of such an amendment: “the above-mentioned amendment in these claims 1 raises new issues and is not prima facie allowable”.

      -The term “generally dome shaped” was originally introduced in the application for the purpose of EXLCUDING the “true dome shaped” because the true dome shaped would not fit with the body portion having a base which is rectangular or square ( and I guess that is why there was no A83 objections on granted claims, because “true come” would not technically fit with “rectangular base”).

      -In summary I am only convinced with the following: The term „generally cylindrical“ defines shapes which are geometrically almost cylindrical but excludes those which are exactly cylindrical. Ie. “cylindrical” is not covered by “generally cylindrical”.

      And of course I respect your view.

      PS: most of candidates I discussed with did not even “stop” at this term!

      Delete
    3. It is surprising to see how things can sometimes be interpreted differently, now also for this T decision.
      Looking at it, it states in reason 2.8 From the above the Board concludes that for the skilled person, in the parent application ... there is a clear pointer ... towards base wall shapes without any corners ("generally circular" or "oval").

      Clearly, a real circular base wall does not have any corners and is thus covered. It is not oval, thus fall in 'generally circular'.

      Let's stop this discussion. Maybe good for 'anonymous' to realize that he is obviously wrong and learn from that instead of fighting the obvious. Most candidates will indeed not have stopped at it because it was obvious to them that circular falls into generally circular.

      Delete
  51. TIM -

    Ok, I give up, this is my last comment. It is striking that, time and again, you are still trying to present new arguments which are contradictory and so utterly wrong, because you don't like hearing the truth about your preparation


    Would you advise your client that the client's product is not infringing a competitor patent beacuse the product is "cylindrical" and the competitor claims a "generally cyclindrical" shape?

    Denial's not just a river in Egypt and with the above in mind you are going to fail the Exam again.

    Regards

    - TIM

    ReplyDelete