Friday, 2 March 2018

Paper C 2018 Cleaning and milking cows

The DeltaPatents team has worked throughout the night to give you an impression.
Some/many of you may not have slept so well either and did not feel in the mood for opening the champagne bottle.
This exam definitely had some challenges.

We came to the following attacks:

Claim 1 (ind): Nov A2
Claim 2(1): I.S. A4 + A2
Claim 3(1): I.S. A2 +A4
Claim 4 (ind): Nov. A5
Claim 5(4) teats only: I.S. A3 + A2 + A4
Claim 5(4) teats and udder: added subject-matter
Claim 6: Nov. A6

We welcome your comments.

A brief explanation.

1. Priority issue
All claims are disclosed in the priority application, thus there seem to be no ‘same invention issues’
Based on a time line, usability of A6 is an issue. This PCT application might be useable under Art.54(3), but has not entered. So, prima facie not useable.
The client clearly indicates the A1 is granted to Odysseus and that A6 is a PCT application of Odysseus. A6 is filed before the claimed priority, thus A6 is a potential 1st application for some claims.
Checking A6, A6 is novelty destroying for claim 6. To have a full 1st application problem, A6 should disclose the same invention as claim 6. However, A6 is more specific – does not show a colourant in general but a specific one European Blue. Until recently there would thus not have been a 1st application problem because A6 does not describe the same invention as claim 6. However the recent G1/15, T282/12 decided that we can have partial 1st application problems. Thus, Claim 6 partially loses priority for the disclosure in A6. This makes A6 Art.54(2) for that part and thus novelty destroying.
This will have been a challenge for most candidates.

2. Added subject-matter
Claim 5 was added. Investigation will have shown to most candidates that everything of claim 5 is disclosed in the application as filed, in particular [21], [23], with the exception of the second ‘OR’ “both the teats and the udder”. So, here an attack under Art.100(c), 123(2).

3. Claim 1
Seemed relatively straightforward: novelty attack based on A2 is possible. The use/purpose ‘for … outside a milking robot’ should be assessed under ‘suitable for without modification’. A2 discloses all claim features and would be suitable for the outside the robot use.  

4. Claim 2, depending on 1
Here a bit of extra care is required. Both claim 2 and 3 depend on claim 1. In most exams a swap of closest prior art needs to happen.
First checking A2: A2 basically misses the whole bit of claim 2. Thus no novelty attack. A2 is handheld and the essence of claim 2 is to be autonomously driving. Starting from A2 as the closest prior art is unrealistic.
Autonomous moving: A3 and A4 could be used as a starting point. A4 is closer – four wheels motor.
A4 misses the rotating brush of claim 1. This is disclosed in A2 and in A5 for the same effect. A5 is an odd document (farm) and would not easily be consulted for details on cleaning. A2 is best. This gives an inventive step attack A4 + A2.

5. Claim 3, depending on claim 1   
A2 (novelty claim 1) also discloses the amount of liquid. A2 misses the checking means. A2 so far seems a good candidate for the closest prior art.
The checking means plus effect are mentioned in A4 [12]. The checking means in A4 detect a drop in temperature. The cleaning in A2 also causes a drop in temperature [08]. So, this seems nicely compatible.
The checking means are also disclosed in A3 [10] for the right effect. A3 uses cameras. They only work if the cow is in the milking robot due the precise position of the cow. That is a problem because it should be suitable for use outside a milking robot. Thus an attack based on A2+A3 is not possible.

6. Claim 4 (independent)
Due to claim 4 not being tightly drafted the odd disclosure in A5 is novelty destroying. We leave it at that.

7. Claim 5(4)
A5 does not disclose the additional features of claim 5. It may be possible to get the conditioning composition out of A4 [14], but the heated nozzles are a problem. A3 discloses those but does not mention the effect given in A1 [23]. Problematic. A5 is anyhow not a great closest prior art.
Trying another closest prior art: only A3 is a realistic starting point, also relating to using a milking robot.  A3 misses using 2 liters of soaking liquid; this is disclosed in A2 for the effect mentioned in A1. A3 also misses the conditioning composition, which can be taken out of A4 [14]. This gives a partial-problems attack A3+A2+A4.

The DeltaPatents C team 
Jelle, Joeri, Nico, Sander, Tanja

155 comments:

  1. Thank you very much!

    For the priority problem, it appears that the A6 also discloses a device of claim 1, although only in the description. So A6 could also serve as the basis for a second novelty attack for claim 1.

    For claim 3, checking by the operator using his own eyes is also a checking means.If this understanding is correct, claim 3 lacks novelty over A2 alone.

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    1. You cannot claim the parts of the human body R.29(1) EPC (though that wouldn't matter for killing a claim, I agree.)

      But still: the eyes are hardly part of the device.

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    2. If the eyes can be used to check, then it is implicit that some functioning of the device leaves the teats visibly observable as having been cleaned. I.e. if the device is capable of cleaning teats to a standard observable by the eye, that would imply means for checking. Yes, it does sound ridiculous now that I type it out...

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    3. A6 does not seem to disclose simultaneous using rotating brushes and applying the soaking liquid. It may do it sequentially.
      Since not a lot of details are known from the device of A6 it is also difficult to argue that it can be used outside a milking robot (A6 is used inside).

      A3: the device comprises the checking means. I do not see an operator as a device part.

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    4. Also, you can't use the A6 device outside the milking robot

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    5. Hi, I agree with Anonymous 2 March 2018 at 11:05.

      Claim 1 claims at least one rotating brush. A6 discloses in paragraph [0005] "um eine vollständige Verteilung der Reinigungslösung auf den Zitzen sicherzustellen, befinden sich die im Reinigungngskopf 2 auch zwei rotierende Haarwalzen 3". In my opinion, the claimed functional features in claim 1 are implicitly disclosed by Fig. 1 in combination with paragraph 5. First, the soaking liquid is directly shot to the brush(es) (see angle of the nozzle(s) 1). Secondly, while the brush(es) is/are rotated - and being in an wet state - they are touching the teats. This is implied by paragraph 5. The functional feature in claim 1 does not demand that the soaking fluid is brought up directly to the teats.

      Any comments?

      Thank you in advance. Marc

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  2. Hi guys, I liked this paper a lot, even though I was lacking quite some time in the end. I did not have time to write "the water in the river is safe for human consumption so it is compatible with the purpose of increasing hygienic standards". Maybe I should have saved time by writing "A cow is an animal, see A1[001]" a couple fewer times, but I wanted to milk all the points I could get out of that marking table...

    I had the same attacks as you do, except one more: did you consider that claim 4 also lacks an inventive step over A3 + A2? I know we already killed it with novelty, but you were going to draft the A3+A2 bit anyway because you need it for claim 5(teat).

    Also: some other candidates considered the object of claim 1 to also be disclosed in A6, and did a novelty attack on claim 1 using A6. I didn't, becuase I couldn't find the "simultaneous" bit in A6. Still, such a thing resonates through the marking table... it influences your effective dates, it influences your list of evidence as being different types of art for different claims, and it influences whether you're spending time on an entire attack or not. What's your opinion?

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    1. Milking all the points out of the marking table... pun intended?

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    2. Don't have a cow, I'm not looking for beef.

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  3. Thanks for getting these up so quickly. I largely concur with your attacks, except for claim 3. I took A2 + A3, making the argument that the checking means of A3 is the image processing means that takes input from the cameras and that the image processing means is located within the device in A3.

    With the benefit of hindsight, I think your A2 + A4 attack is probably better but I'm hoping my attack is sufficiently convincing to gather some of the marks at least.

    As to claim 5a, I got in a real mess trying to piece documents together. I also thought partial problems, but ran out of time trying to piece it together. I ended up stringing some half-baked combination together, not expecting high marks on that. Hoping that not too many marks are connected to that claim, given that it's already invalid for added matter.

    Miles

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  4. Slightly dissenting opinion with regards to claim 1. Similar situations have occurred before with first application issues. Because the earlier document is never an exact copy of A1, the subject-matter does never match the claims of A1 perfectly. We were never supposed to make that an issue. I don't expect the recent case law to have changed that.

    so, I don't expect it to be the intention of the exam committee to make this a partial priority issue. Also because they didn't come up with a proper attack for the remaining subject-matter. So for claim 6, I would just say 'priority lost, claim not novel' (in a few more words of course).

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    1. claim 6 that is, of course.

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    2. Yes, but case law has very recently changed. Now the bit sloppy or even wrong (C 2007) first application issues are right and have a correct legal basis. I think it is important to teach candidates this.

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    3. Recent enough to have influenced the design of the paper? I don't know. The correct answer just seems a little bit too difficult for me.

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    4. Silly question perhaps, but could you please explain what you mean re the C 2007 first app issue? I don't follow. (I know the paper and the pan/coffee cup issue there, I just dob't follow your comment.) Thanks. :)

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    5. In 2007, a receptacle for hot liquids was claimed. The earlier document from the same applicant only disclosed a frying pan. The model solution wanted that to be treated as a classic first application problem.

      Similar in 2014. The claim had a skin engaging element with a resilient foam. The earlier document had it in a specific position, used for a specific purpose and was more specific about the actual material. Still straightforward firs application issue.

      There is new case law that allows for partial priority problems, but (to me) it is unclear in what exact circumstances to apply the new case law. Probably in the 2018 and the 2007 case, but also in 2014? In the end, I think this level of legal complexity is not tested in the exam. So my best guess is that the topic is best ignored.

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    6. Thanks. So the discussion is now about 'receptacle for hot liquids' being actually 'either pans or non-pans', with only 'pans' being not entitled to priority and thus not new, G /15? (Just checking if I got it right, because I was puzzled by this sentence in particular: "Now the bit sloppy or even wrong (C 2007) first application issues are right and have a correct legal basis.")
      It is also unclear to me how to apply the recent case law to this. Getting rid of poisonous divisionals is one thing, but this is something else.
      Anyway, very interesting.

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  5. Thanks for the post! I struggled with interpreting the sentence "The at least one hair roller will rotate as soon as liquid is supplied when trigger is actuated." of A2. For me, as non-native English speaker, it could mean that the roller will rotate _after_ the liquid is supplied. But when I read it again and again, I'm totally wrong. I spent too much time struggling with that.

    I considered partial problem in claim 5 but run out of time. Then I just wrote something that at least 3 litres is common general knowledge.. based on A2.

    Then I took a risk with A6 and thought that it discloses more than just claim 6.

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  6. Hi everyone. I hated this paper. I would be interested to see how the Delta Patents team think the marks might roughly be distributed? I got the effective dates etc and the attacks on claims 1, 2, 6 and 5b, but they were the "easy" ones. I.e. mostly nov/added matter - I've seen that there typically aren't as many marks available for novelty and added matter attacks as there are for inventive step. So I'd be interested to see whether this will be enough to at least get me a comp fail!

    As for the other claims: for claim 3 I did as someone mentioned above and argued novelty re A2 in view of the operator checking. I realized there may be an inventive step attack to be had but I was already way behind my timings plan so decided to just get something down and move on. Claim 4 I couldn't find the soaking and at least 2 litres in A5 (half an hour left, realizing I have 3 claims left to attack, forgetting which annex was which and all the words were just jumping around on the pages in front of me - it was a nightmare!) so went for a very dodgy inventive step attack. This meant that my claim 5a inventive step attack was also a complete mess. I went for partial problems but did not have time to write it all out, and I think I had A5 as a CPA, so no wonder it didn't fit together nicely.

    As to my opinion on the paper in general: it started out fun (?) and I was pleased to have spotted early on that A2 clearly destroyed A1's novelty and that A4 was clearly useful for claim 2. But occasionally, the thought of dirty cow udders made my stomach turn! Really, I could have done with another 30-40 minutes.

    Stan

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  7. I had trouble deriving the feature in claim 5 of "marking the animal outside the milking robot" from A3. Tough paper.

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  8. What about claim 4 lacks novelty over Annex 3 in addition to over Annex 5?

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    1. A3 does not seem to disclose 'at least two liters per animal'; it takes for all cows the liquid for a central reservoir of 50 liters.

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    2. Thank you Jelle for your response. I hope that it is contemplated the possibility of not being more than 25 animals... jjjjj

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    3. Litres of it, we practically soak the stuff in it2 March 2018 at 11:51

      I beleive A3 did not mention the at least two liters per application, only a reservoir of 50 without a per-animal-application. That's why you need A3+A2(+A4) to kill claim 5. A3+A2 kills claim 4.

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    4. I am not sure, but in A.5 'at least two liters per animal' were indicated or it was the document referred to the river...? If yes, it cannot be considered as the large capacity reservoir of Annex 3?

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    5. that is what i wrote: Since A5 is completely silent regarding claim 4, feature "2 Liters" i took A5 in combination with A3, where a tankvolume 50 liters is disclosed...
      A5 + A3 also kills claim 4. Subsequently A5+A3+A4 kills claim 5

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  9. in my view, for claim 2, the closest prior art is A3 because it relates to automation. although A4 discloses the features of claim 2 (btw the last feature of claim 2 is not disclosed in A4) it has another purpose of monitoring it is not mentioned that is for automation purpose.
    That is why for claim 3, A4 would be a good starting point as it has the purpose of claim 3 i.e. checking or monitoring.

    For claim 5, A2 can be the closedt prior art and misses the marking step whcih is in A5.

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  10. I have the same attacks, but spent forever deciding on those for claims 4 and 5 (the 2L completely threw me off track), finally just started writing the other attacks without having fully decided (which I hated, because usually when you list all the attacks you can see if they are nicely "exam style" - all documents used, switching closest prior art at least once, etc.). Decided on claims 4 and 5 with just 45min time left and wrote a novelty attack on 4 basically from memory only, without citing much, and a completely messy and incomplete partial problems attack on 5a.

    It was just way too long, too much text, too many attacks, too much misleading information. Would have needed at least another hour probably to get everything written down that I wanted to.

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    1. That annoying guy from your class2 March 2018 at 12:22

      Ha! I wrote the claim 5 inventive step attack in the last nine minutes... So stressy! First do the bare bones of the nine steps with many empty lines remaining, then add more remarks per step as time permits, looking at the clock after each sentence to not get the -5 from writing too long... My hands are really happy that these exams are over now, I really got a blister developing.

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  11. Both options for claim 5 did not envolve added subject-matter? They did not suppose to relation last paragraph of Annex 1 with a paragraph making reference to a preferred embodiment in which "teats, or teats and udder" with no link between said paragraphs?

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  12. For claim 3 i did the novelty attack basend on A2...

    For claim 4 i did a i.S. attack based on A5 and A3

    Thus for claim 5 id did a i.S. attack based on A5, A3 and A4 (with partail problems but with a synergetic effect, because A4 mentions both problems in one sentence)....

    Hopefully this will also gain marks...

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  13. I thought that claim 4 was novel over the journal article as the ordering of steps was different, since the marking and soaking were in a different order and the claim required the steps in the specific order?

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    1. Litres of it, we practically soak the stuff in it2 March 2018 at 12:25

      My last hurdle to "are we really going to use this wack story as novelty?" was "finding the actual step of milking the cow." While it's implicit and super obvious, this is a C exam, so you'd better show where a step is disclosed...

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    2. Method of milking it2 March 2018 at 12:36

      I agree totally with finding the step of milking the cow. I couldn't find that step explicitly stated in any of the documents. Also, trying to find basis in any of the cited docs for asserting that a river has at least 2 litres of water was a real low point.

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    3. I quickly concluded that the milking was implicit; that is what a milking robot does.

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    4. Working from memory, is there issue with the ordering of when the cows are marked by the roller and when they are soaked in the river?

      And yes, I would agree that milking as a final step is implicit.

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    5. i think that A2 is a good candidate! it discloses in the first paragraph "cleaning before milking in the robot" i.e. it is implicit that you let the cow into the robot... This covers almost all feeatures of claim 4 except the two liters feature and the marking. The "2 liters" feature is further disclosed in A2. Thus A2 has only the marking step missing whcih is in A5.

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    6. so... the soaking step is disclosed in A5 by the crossing of the river!??? Are you serious? I mean: is the person that designed the exam really serious!?? This is border-line sick (evil) in my opinion...

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    7. Claim 4 requires "soaking the teats of the animal". Where is in A5 written that the river has enough water to arrive at the teats?

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    8. page 2 paragraph 3 states the river is deep enough to reach half way up the belly taking away the substance on the skin, and mentions the teats were still wet by time it was in the milking robot. And its a river so >2 litres is implied, especially when its considered to be useable for all the farms needs!

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    9. This is really pushing the exam to the limit of being something completely ridiculous...

      In last year's pre-exam: a loud speaker (in a toothbrush) was novelty detroying for a toothbrush with a vibrator.

      This year: a cow crossing a river is novelty destroying for soaking the teats...

      I really believe this is testing the creative reading of the candidate more than testing whether is capable of doing the job of european patent attorney... Non-sense.

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    10. Claim 4 requires to soak with a soaking fluid. According to A1, a soaking fulid softens the dirt, thus making it possible to remove the dirst moreeasiliy. From were can we infer that the water of the river is a soaking fluid?

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    11. I believe A1 said that soaking is to be taken as applying a fluid to the skin.

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    12. Method of milking it2 March 2018 at 16:03

      But then you had to find the definition that a fluid was an aqueous solution (can't remember where exactly now) and that and aqueous solution is water-based (again, can't remember exactly where now). In my opinion, there were too many instances of having very obvious implicit features, but in true EQE style you can't use your own knowledge....so I come back to the issue again of it's ridiculous that you can't use your own knowledge that a river has at least two litres of water and you need to find basis to back this up. Honestly, they are scraping the barrel here with coming up with weirder and weirder situations just to test abstract thinking.

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    13. method claims normally list ACTIVE steps. The step of "soaking" is an active step that is performed in claim 4 using a fluid. The passage of the cow in the river cannot implicitly disclose the active soaking of claim 4; it is a passive soaking.

      It is like saying that "the raining" anticipates the feature of "watering".

      it is hard to accept A5 as novelty destorying for claim 4, as you also question in the solution proposal.

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    14. Method of milking it2 March 2018 at 17:09

      That's a brilliant point (anonymous 16:23)...so thinking about it, if the river in A5 did not exist, but all other steps of milking did, would this document be novelty destroying if the cow stood in the rain for long enough for two litres of water to wet its teats and then proceed to milking?

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    15. only if the cow is able to stay on its back so that rain can soak the teats... :)

      Personally, I did not consider the soaking step to be disclosed by the river in A5. So I did an IS A5+A2... but this did not work out very well either...

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    16. I really think that the cows crossing the river constitutes soaking their teats, given the definition in A1 that soaking is applying fluid to a surface, and given Figure 1 of A1 that shows (and has accompanying explanation in the description) where the teats of the cow are in relation to the belly and that shows that the teats are completely submerged (i.e. fluid is applied to their whole surface) because the water of the river is said to reach to "half way up their belly". I thought that was an obvious hint, and it gave a useful reason to the existence of Figure 1 of A1.

      Ruben

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    17. It is not about the arbirary meaning of words. It is about what the skilled person understands. Does the skilled person really understand that crossing the river upto the belly is soaking the teats? Not skilled in a technicial art in my view... skilled in the art of painting of Paulus Potter (https://en.wikipedia.org/wiki/Paulus_Potter)?

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  14. Not quite easy paper...harder than the years before ...

    First of all thanks to the Delta Patents Team for drafting a solution that quick.

    How many points could i lose for selecting the wrong CPA?

    I can fully agree with the novelty attacks.

    However, A3appears to be a better closest prior art to me for attacking claim 2. A3 is the only document which has the same purpose, namely providing a device for cleaning teats outside of the milking roboter. A4 explicitly states that further cleaning steps are necessary prior to entering and the cleaning of A4 ist not sufficient for milking. However i made a partial approach using A3+A2 for the brushes which do not need to be out of a polymer. For the wheels i used A3+A4.

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    1. I agree; for claim 2 A3+A2+A4 is the right one. A3 is closer than A4 for the subject of claim 2. The automation is explicitly mentioned in A3, while in A4 another purpose is mentioned (the one of claim 3) and you have to DEDUCE the automate purpose from part of disclosure of A4, whcih is in my opinion not allowed. The purpose should concern to the document as a whole...

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    2. I agree, had exactly the same approach and same attack. Hopefully this gains at least some marks.

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  15. Although, I agree that in most exams a swap of closest prior art needs to happen. I made an inventive step attack A4 + A2 for both claims 2 and 3 because part of its purpose is ‘for … outside a milking robot’ due to their dependency on claim 1. And, in my opinion, A2 comprises a teaching away: 'outside less prefered'.

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    1. Ah, I did this as well! I really hope that provides a good amount of points as well...

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    2. Same here!

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    3. I thought that his should not be a teaching away since it is clearly stated the
      A2, [0010] „Fast coupling connecting points are standard equipment on a modern farm. They allow the use of devices such as our portable cleaner at any location of the farm."
      I assumed that the following statement is merely directed to a preferred embodiment, which does not teach away:
      "However, using a portable cleaner outside the milking robot is less preferred, since cows tend to get dirty again before accessing the milking robot.“

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    4. I really struggled with this paper and especially the attack on Claim 2. I understand that the features are disclosed in A4 and A2, but I just can't see a "clean" lack of inventive step attack using these in combination. As Anon (22:31) said, A2 states that using the portable cleaner outside the milking robot is not preferred. A4 also states that after disinfection the teats must be further cleaned IN the milking robot. Now I know that the device of A2 is "suitable for" use outside of the milking robot. However, I can't see the usual EQE logic for linking these two documents together to come up with a device for use OUTSIDE of a milking robot as both documents point away for cleaning outside of the milking robot so the skilled person wouldn't even contemplate A4 in the first place. In fact, if this was the other way round I would just rebut such an attack with the usual "could would" argument. I have a feeling I got myself wound up in the exam and should have just gone with it, but because it was such a messy attack I spent way to much time trying to find the "proper" attack only to realise that there wasn't one!

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  16. Thanks for this, looks like I chose the right attacks so I can put my mind at rest. However even as a native English speaker I felt there was nowhere near enough time to read and analyse the documents, then choose and write out fully reasoned attacks. Especially with the different (and often misleading) wording used in the documents. For claim 4 in particular I couldn't quite believe what I was writing, since most of the justification seemed implied from A5. I really feel for those who don't speak fluent English/French/German.

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  17. On the whole this paper was just odd!! It wasn't particularly technically challenging in anyway, with generally less complex priority issues and added matter etc. However, I found the amount of information far too much to make your way through.

    On the face of it I seem to have arrived at the same solutions - but I only had two hours remaining before putting the answer together so was under pressure then from the start to put good arguments down. Also, didnt have time to complete IS for claim 5a (skipped it at first to tackle added matter 5b and novelty A6) and so went back to get only have way through. Took the tactic of rather than writing a rushed answer, wrote a half good one and just wrote "RAN OUT OF TIME" at the end!

    Did a reasonable job of assimilating everything but feel the rush will have meant easy marks lost

    Also, did anyone else feel some of it was a bit far fetched and abstract (take A5 for example and the significance of the river!!)

    For claim 2, I took A4 as CPA - reason being it was the only document that had an electronic indication means that could supply info about the positions of both the device and animal. The only feature missing was rotatable brushes, which could easily be used to replace the Ultrasonic cleaner of A4 with brushes of A2 especially as A2 disclosed that the brushes effectively removed dirt and uniformly spread soaking solution (taught as desirable in A1).

    For claim 5, I took A3 as CPA as only doc with heated nozzles. You wouldnt use A4 and make them heated as it relied upon an IR sensor to look for a temp drop inicative of application of solution. A5 had a river and no need for nozzles! So A3 needed marking and conditioning medium to kill claim 5 - but like I said ran out of time to take that further!!

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    1. I felt exactly the same way as you! I completely ran out of time because I really struggled with the inventive step attacks. In the end I didn't have time to attack 5a and 4 :-(

      In my view, the prior art combinations were completely ridiculous!

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  18. the closest prior art has to be defined in accordance with the Guidelines i.e. 1) field, 2) purpose and only then 3) struture. A3 has the same puporse as claim 2, while A4 is not. "4-wheels" argument comes only once the purpose of A4 is similar to the one of A3 whcih is not the case. The purpose of A4 is stated in par. [01] and has nothing to do with automation e.g. A brochure of a milk product, descrbing among other things the structure of the milking device does not have the purpose related to the structure of the device. I hope that someone can convince us of the purpose of A4.

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    1. As we know it is very subjective, but guidelines state n practice, the closest prior art is generally that which corresponds to a similar use and requires the minimum of structural and functional modifications to arrive at the claimed invention. Similar use and minimial modification is key.

      To use A3 you would have to modify to include the brushing arrangement which is not anyway taught desirable. Also, whilst I agree that the brushes dont have to be polymeric, our only possible combination documents were A2 which called them rollers and A5 which also called them rollers with polymer bristles (significance, the detergent used in A3 is taught to degrade polymers and so should be used in structure of the A3 cleaner. Also, you would have to modify the wheel arrangement to have independent motors for each wheel (A3s just moves backwards and forwards) and its is explicitly taught that a single motor is wanted to reduce power consumption. And you would need control indication means regarding cow and device, which is not needed in A3 because it moves backwards and forwards until it finds the cow.

      As for field, whilst A4 is more disinfecting/treatment, claim 1 is a device suitable for soaking and cleaning teats outside a milking robot. It isnt limited to context of pre-milking, automation or the like and so is of a broader scope that allows more obscure art to be cited. A4 has all the features suitable for thus purpose and still relates to dirty cows and milking! The fact A4 teaches there is still a need to clean after disinfecting lends to a inducement to modify to achieve this and the fact that multiple reservoirs can be accommodated for different solutions would be no barrier to this.

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    2. @Anonymous of 14:24: Good argumentation. If you sat the exam this year and answered like this, I expect you passed this part :)

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    3. the control indication means and related info are anticipated by the "operator" of A3. and the positions of BOTH are needed regardless of the type of movement. The only difference between A3 and claim 1 is the roller and the use of 4 motors instead of one motor.

      Minimial modification requires the pre-knowledge of the solution of the invention which is in my opinion introduces a bias in the whole IS argumentation. It should not be used at all or if it is used should have the lowest weight (i guess that is why they put it as a last criterion in the GL).

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    4. Thanks @Joeri although my only concern is taking forever to trawl through it all That the fruits of my interpretation weren't put forward as well on paper....certainly didn't have time to check!

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    5. I would say, the main purpose of A1 is to clean the teats for obtaining a clean milk (outside the robot).

      [9] of A4 explicitly teaches that the cleaning by this A4-device is not sufficient before milking.

      Furthermore, neither A2 nor A4 state that polymeric materials are the only materials for brushes. Also the patent does not teach this, otherwise, claim 1-3 would be insufficiently disclosed which is not the case. I think, A3 teaches away from polymeric materials but not from a different material of a brush. In my opinion, modifying this would not be an undoable burden for the skilled person.

      Usually, it is indeed the case that "purpose" overrules structural or functional modifications. Therefore A3 for claim 3 as CPA also seems better to me than A4 or A2.

      Furthermore, the wheel modification can be obtained by A3+A4 and the brush modification can be obtained by A3+A2 in the partial psa manner.

      However, I am not quite sure about A3 as CPA for claim 3.

      Novelty attacks and the attack on claim 5a seem all to be reasonable.

      Delete
    6. @anonymous at 14:56 the user is not part of the device. And it moves along the runners and uses it's lasers to position beneath the cow. No mention of any indication of its own position

      Delete
    7. do you mean that operator is user? how a human being can "notify" an (electronic) control unit?
      "whenever a cow reached X" this means that the operator has the position of the cow. "must be displaced to the occupied..." this means that the notification has info about the (future) position of the cleaner.

      Delete
    8. Paragraph 7 of a3 says if the operator notices this behaviour...he can manually order. Operator is a he, the person or user supervising the milking. The setup of a3 is this. Cows walk towards the milking area through the corridors at which point the user activates the device for it to drive along the runners until it's sensors detect the teats. Crude and not necessarily workable but that's not to be contested. But the operator is a person and so not part of the device. This aspect about the cows wandering too is why you perhaps would apply the conditioning medium aspect to a3 for the inventive step of claim 5

      Delete
    9. but it is pargaraph 5 which is relevant "operator notifies control unit". This is not a human being; sorry. yes, the operator of par 7 may be a user; and it must be different from operator of par 5 otherwise it introduces inconsistency in the description of A3!

      Delete
    10. Par 5 says an Operator and so introduces the feature for the first time. part 7 says the operator therefore referring to the feature already introduced. Ignoring that, para 2 mentions operator being equipped with cloths to clean the teats. It's fairly clear that operator in a3 is a person. Interpreting para 5 in any other way would be inconsistent

      Delete
  19. I have to agree that the CPA for claim 2 is A3 not A4. The purpose of claim 2, and of A3 is to clean the teats in advance of entering the milking robot.

    The purpose of A4 is to trundle around a field and find and treat infected cows. The incidental cleaning that occurs is unrelated to the purpose of milking cleanliness. The cow would get dirty again before going to be milked.

    The arguments put forward that A4 is CPA rely on number of features in common, not purpose, and thus are of secondary importance.

    ReplyDelete
    Replies
    1. Didn't A3 say something like "one central motor for actuating all the wheels is sufficient", I.e. a clear teaching away from the subject matter of claim 2? From what I recall from my past paper attempts, if a document teaches away from a claim, it cannot be considered the closest prior art, no matter how close the field/purpose...

      Delete
    2. "sufficient"for what purpose? if it says sufficient for achieving the effect of the "4 motors" feature then it may teache away. However, if it simply says suffcient e.g. for moving in one direction, this does not teach away from using multiple ones to have a flexible movement.

      Delete
    3. Teaches away because one motor is preferred to reduce power consumption

      Delete
    4. but this (teaching away) argument cannot be used for choosing the closest prior art document. It needs access to the solution of the invention as input. I see your point that this sometimes has been used for CPA selection but it is simply wrong because it can only be discussed when trying to start from CPA to find the solution.

      Delete
    5. A3 as cpa does not exclude using 4 Wheels with separate motors. The problem providing a better availability can be recognized by [7] of A3 since there is a risk that teats can get dirty again after cleaning them outside of the Robot. A better availability of the mobile device as taught in A4 will reduce this risk. Furthermore, the fact that no rails are needed is beneficial since no extra space is required for the device.

      Delete
    6. The issue with A3 CPA is that you then have to find a reason to modify it to have an individual motor for each wheel, the effect of which is to allow the robot to steer. However, in A3, there is no need for this, because in A3 it moves along rails. You therefore don't need multiple motors.

      I thought it would be difficult to put together convincing argumentation as to why the skilled person would make this modification - I therefore went for A4, on the basis it was in the same field and on this occasion required the fewest modifications.

      A4 does also say at [0007] that the disinfectant cleans the bactera from the skin of the teats, so one can make the (admittedly tenuous) connection that disinfecting = cleaning.

      Looking back, I suppose one could start from A3, with the problem being how allow the robot to steer, the solution being getting rid of rails and putting a motor on each wheel, but that is starting to feel a little like use of hindsight.

      Delete
    7. Claim 2 doesn't say that the cleaning is in advance of entering a milking robot, so the scope is actually pretty broad and you can destroy it with any cleaning outside of the milking robot. General purpose from the description is something about hygiene (don't remember exactly), which you can argue easily with A4.

      Add to that the teaching away of A3 (which maybe shouldn't be considered in real life, but should absolutely be considered in the exam, because it traditionally kills a document as cpa) and the fact that (if I remember correctly) you'd need to combine three documents to get to claim 2 starting from A3 - don't do that if you can get all the features from two documents.

      Admittedly, I would never do it like this in real life, so I hesitated. But this is examland, not real life, and the purpose is not finding good cpa, it's finding the cpa that those who drafted the exam had in mind. It's often completely ridiculous (for example the novelty attack on claim 4 - what the heck?) but that's the game.

      Delete
    8. A3 could not be regarded as CPA since it is directed to the automatization of the diary farm ( Field of the invention of a3. (Title is not Part of the disclosure and would not determine the Field of the invention.

      Delete
  20. Did anyone else notice the second novelty attack on claim 1 based on A5?

    A1[5] says that "soaking must be understood as applying a fluid" and A5 p2 20 indicates that when the cows arrive at the hair rollers their teats are wet, so no 'additional' fluid is needed.

    Since hair rollers spread the fluid uniformly, they move and reapply the fluid, and thus provide the 'soaking means' (as well as obviously the rotating and contacting means).

    ReplyDelete
    Replies
    1. Claim 1 requires the brushes rotate and simultaneously contact teats during application of soaking fluid. In a5 river happens first

      Delete
  21. I attacked claim 6 using A6 as a 54(3) instead of (2) document, will this lead to marks?

    ReplyDelete
  22. Regarding the question of added matter in claim 5, I did also at first think there was a problem with 2nd option “or to both the teats and udder”. However, I deleted my objection since I found it a bit ridiculous to think that you could apply a conditioning composition to the teats of a cow with the fluid applicators #6 and that the udder would not also get some of the composition applied to it in the process. Since the teats are a part of the udder and the skin between the teats is technically udder, and the liquid conditioning composition is splashing around left, right and center, I claim there is no way to apply a conditioning composition only to the cow’s teats. Thus, the step “applying a conditioning composition to the teats” automatically includes applying a conditioning composition to the udder, since the fluid applicators #6 function by spraying (see A1[7])!!!! Thus, quite frankly the s.-m. of claim 5 is not extended as such by the expression “or to both the teats and the udder”!!!

    ReplyDelete
    Replies
    1. So close no matter how far - and nothing adds matter2 March 2018 at 17:27

      I agree that added matter in paper C is always super sucky. In various previous exams I refused to make added matter attacks because I didn't consider the "stuff added during examination" to be added. What I learned from this is the following:

      • If you decide it's not added matter, you lose marks for not making an added matter attack because the marking table thinks it IS one. And you only get marks from the marking table, not from the €20 bill you slipped into the envelope.
      • If you decide it's not added matter, you lose additional points in the "effective dates of claimed embodiments" section, because you accord the wrong date (viz. any date).

      So I learned to not think, and just accept it's added if it's in the letter. They try to trick you with generic OR claims being added. It hurts arguing that it's added, but hey: I'm all about them marks.

      Delete
    2. wrong. if you claim udder, the stuff can be applied anywhere at the udder. but only application at teats was disclosed. added matter in its simplest form.

      Delete
    3. @OppoBoard it´s me again Anonymous 2.3.2018 at 16:35

      Due to the presence of the word “both” in claim 5, the situation you
      mention does not arise. Claim 5 defines two options -
      Option 1: applying a conditioning composition to the teats
      Option 2: applying a conditioning composition to BOTH the teats and the udder

      Thus, there cannot be an issue of added subject-matter bearing in mind
      that the teats form part of the udder and the udder will, whether
      directly or indirectly, have conditioning composition applied to it
      due to the spraying action of the fluid applicators #6 i.e. the step
      “applying a conditioning composition to the teats” automatically
      includes applying a conditioning composition to the udder, since the
      fluid applicators #6 function by spraying (see A1[7])!!!!

      Delete
    4. The argument would be possible if we were considering novelty or IS, but for amendments (and so added matter) you need consider whether there is/was clear and unambiguous basis derivable from the application for such a claim limitation. You cannot rely on what might happen and imply that. There is zero legal certainty if that is the case. The application gave zero basis for udders and teats

      Delete
  23. Skilled Person2 March 2018 at 17:54

    Do you have ans thoughts, how the marks will be distributed?

    Effective dates and prior art are usually 10 pts

    Added subject matter about 6

    Novelty about 8 per attack

    This would mean 20 per inventive step attack??

    Do you think starting from the wrong cpa is always 0 points per attack? Would be a hard punishment but i Heard about it. or will it be held like in b?

    ReplyDelete
    Replies
    1. I sat last year's paper C and mainly failed because they awarded 0 marks (of 20) for a well-founded and plausible IS attack on claim 2. Said IS attack was 1000x more plausible than each of the 3 far-fetched IS attacks of this year's paper!! I guess depending on the difficulty of the paper they are more or less lenient...

      Delete
  24. If you don't want to read a rant, then look away now!

    I found this to be a really ridiculous paper. Certainly not because I found it difficult myself - I think it is important that these papers challenge the takers and their skills - but rather because after all the time, effort and money spent in preparing for it, you perform poorly because of sheer information overload and time pressure.

    We all know that these papers do not reflect real life, yet it seems unfair that they are SO far removed from real life practice. They pack so much analysis into such a short space of time. The examining board professes that it is "all about the argumentation", yet they put blocks in our way that prevent us from even getting to that stage - e.g. in the form of volume of information, unclear claim features that force us to spent ages thinking about whether something is actually disclosed or not (looking at you, claim five and the river crossing) or making us waste time on defining terms by reference one or two other documents that simply need no definition in real life - I believe one example given by someone earlier is that an aqueous solution is a fluid.

    These are all perfectly valid aspects to test, but either the exam needs to be longer, or the information content reduced.

    What makes me laugh most is reading the snarky comments in the examiner's report each year - "a surprising number of candidates missed such and such a feature...". No **** Sherlock - it's like trying to find a needle in a haystack!

    Regardless, to all those who are annoyed at this paper, I hope you perform better than you think. And there will always be next year!

    Just my two cents...

    ReplyDelete
    Replies
    1. Agree also. As patent examiner I found A5 very nice as thinking out-of-the-box document but not adapted for an EQE exam because to find or not the right attack implies a bit of luck. In my curent "patent" life, such a document will appear every 100th application and does not represent the "normal" patent life.

      Delete
    2. Totally agree! Thanks for that. To the best of my knowledge, this was the 1st paper C where in the IS attacks, the CPA had to be modified in a non-obvious way (i.e. the IS attacks were basically useless). I mean who would take IR sensors from an electronic device (A4) and put them on a device that is merely connected to a water hose (A2). And where would the SP put those sensors? Etc. As the patent proprietor I would have a good lough about such ridiculous IS attacks! And last year they awarded 0 pts for a well-founded IS attack (Deltapatents had it in their 1st model answer after the exam)!

      Delete
    3. The last year claim 2 will be re-marked in at least one case as a result of appeal. The decision is being finalized.

      However, from the Tutor's Report it is clear that they awarded 0 points only for a specific variation of the attack starting from A6, popular among candidates, but different from the DeltaPatent's.

      Apparently, one of the reasons for such a harsh grading was that the Examiners didn't realize that the spring didn't have to be removed in the attack starting from A6 because the engagement between toothed arms and the ridges can be in the chamber, rather than outside the chamber where the spring was.

      NN

      Delete
    4. Hello Anonymous4 March 2018 at 00:56,
      where does one get the information about such appeals from and does an successful appeal only effect the individual who appealed in terms of re-marking or effect everyone who sat the paper?

      Delete
    5. Hello C2018, I have info regarding only one appeal, through personal experience. There were others, but I do not know what was discussed in them. It is clear from the well-known C-2007 case that only papers of those candidates, who appealed, will be re-marked. Although, the appeals sometimes have a positive influence on the EQE even if lost. For example, the examiners for Paper C now give marks on a claim-by-claim basis (before it was novelty, inventive step, etc). This is apparently a consequence of the Disciplinary Board comments in one of the recently published appeals.

      NN

      Delete
  25. Anyone who agrees with A5, A3, A4 concerning claim 5(a) ??

    ReplyDelete
  26. For claim 2 I had the “rule” (from Delta?) in mind that if a new claim adds functionally independent matter to the subject of the claim where it dependents on, the closest prior art of the parent claim is also the closest prior art of the combined claim (see also C/2017, where the flower shaped handle is an additional unrelated feature). Thus, for the subject matter of claim 1 A2 (next to being novelty destroying) was also the closest prior art as it is from the same field (teat cleaners) and has the common purpose to provide fast and easy cleaning of teats. Furthermore, D2 teaches that there portable teat cleaner can be used at any location on the farm. Then the subject matter of claim 2 is all about automatization and independent use. A4 is from a neighbouring field and deals as well with problem of cleaning the teats of a dairy animal. Thus, the expert would find und use A4 to solve his automatization problem. Thus, for me it was clearly A2+A4. What do you think about that?

    ReplyDelete
    Replies
    1. That "rule" surely does not originate from Delta. I had a C course from Delta too: they donot tell you that the closest prior art of the parent claim is necessarily also the closest prior art of the combined claim. On the contrary, they tell you it is usually a different closest prior art. Any added feature, an extra limiting feature, a further detailing feature, technical, even non-technical, or suitable-for type can change the closest prior art.

      Delete
  27. I agree that the amount of info. and the 1.5 page of claims render the 5.5 H not sufficient at all.

    I hope that they don't use A5 as novelty destroying for claim 5. it is IMPOSSIBLE that the traversal of the river (implicitly) discloses an ACTIVE feature of soaking. The soaking by the river is natural (like raining) we cannot use for a method step of "soaking".

    ReplyDelete
    Replies
    1. I disagree. If a hypothetical method would claim 'heating a substance', and if instead of putting it in a man-made oven you would simply leave it out in the (summer) sun to heat (so just a natural way of heating) and that would arrive at the technical effect, then that operation would i.m.o. still be covered by the claim. So a river can do the claimed soaking, I believe.

      Ruben

      Delete
    2. following your example: if the prior art says "LEAVING the substance under sun" then this is of course covers heating... However, if prior art (like A5) says that "the substance is outside under the sun", this does not anticipate "heating".

      that is the tricky point with method steps.

      Delete
  28. Agree! On top i think a2 duscloses a General control means (operator) thus a2 is novelty destroying. As Long as a2 is constructed as it was, it has to get points.

    ReplyDelete
    Replies
    1. Sorry, regarding claim 3

      Delete
    2. The operator is a person, so not a means included in the device. From the comments I guess this wasn't very clear from the english version, I used the german.

      Delete
    3. So A2 at least implicitly discloses control means...?!

      Delete
  29. what about claim 3?
    the selection of CPA is not really justified here.
    A4 is the right CPA having the same pourpose of claim 3.
    So A4+A2 instead of A2+A4.

    ReplyDelete
  30. Claim 2
    It is convincing with respect to A3, since it discloses that a electro motor is enough, in order to reduce power consumption.
    But the delta patents team argue that A4 is CPA, since A2 does not disclose any additional feature of claim 2. But we are already on the structural/functional level. What is about the purpose of claim 2: "the use of a brush 7 is that the soaking fluid will be spread by the brush in a uniform manner over the teat" (A1, (08)), since the purpose of claim is also part of claim 2.
    and "reaching the cows outside said milking robot" (A1, (13)).

    A2 teaches the purpose "ensuring uniform wetting of the animal part concerned" (A2, (7)).

    A4 teaches "The invention allows to reach the animals wherever they can be found" (A4, (4)).

    Both A2 and A4 teach at least one of the said purposes, so that we have to consider the number of structural and functional features which A2 or A4 has in common with A1?



    ReplyDelete
    Replies
    1. In addition to the last comment:
      A4 lies in the field of a device(4) for soaking (A4, ((0004)) and cleaning the teats of a dairy animal (A4, (0001) & (0008) outside a milking robot (10) (A, (0003) implicitly disclosed). The title "Mobile treatment device using a soaking solution" (A4) does not determine the field of the invention, as it is not part of the disclosure (only description, claims, and drawings; the title is not part of the description).

      A2 lies in the filed of device for cleaning the teats of the dairy animal (A2, (0001)) outside a milking robot (A2, (0010), S.2: "They allow the use of devices such as our portable cleaner at any location of the farm").

      Delete
  31. André The Giant

    Thanks to the DP Team for providing your first impression.

    About the priority issue for the object of claim 6:

    Guidelines EPC F-IV-2.2 provides that for the assessment of the "same invention" criteria, the skilled person should also take into account any features implicit (G2/98) in what is expressly mentioned in the document. Example is:

    A claim to an apparatus including "releasable fastening means" would be entitled to the priority date of a disclosure of that apparatus in which different embodiments of releasablefastening elements such as a nut and bolt, a spring catch and a toggle-operated latch are shown.

    Analogy with R6 case is somehow tempting: A6 describes the use of a dye called European Blue (a specific embodiment of a colourant), which is know from the prior art A2 (§12); i.e. well before A6 was filed; as a colourant that can disappear after applied. The skilled person at the reading of A6 and with the knowledge of A2 could easily derivates the implicit role of the European Blue in A6 as a colourant. A6 discloses then the composition of R6. I passed the paper in French; §3 of A6 says: Pour détecter de telles erreurs, la présente invnetion propose d'ajouter un colorant appelé European Blue à une solution de nettoyage, laquelle peut être composée d'une solution aqueuse de savon et d'éthanol. §6 of A6 describes the content of EB. Since R6 claims a functional feature (colourant for colouring); and provided that A6 provides a specific embodiment of a colourant; G2/98 and GL F-VI-2.2 apply for the test related to the same invention.

    Applying G1/15 would have provided two different priority dates for the subject-matter of R6:

    R6 (European Blue) : Priority of A6

    R6 (Colourant - EB): Priority of A1

    R6(EB); because of the priority issue; has a fictive date the filing date of A1: not novel ofver A6

    R6(Colourant - EB): should we then develop an Inventive Step Attack wrt A2 - A5 (excluding A6 which is published after the priority of A1)?

    About the Inventive step attacks for R2 and R3; would it not be preferable to use A4 as Closest prior art provided that it is the sole document explicitly describing a device for cleaning out of the robot ?

    A2 says that it is not preferable to use the portable cleaner in the inside of the robot area (see §10 in A2).

    About R4, I do not see all the features (use of at least 2 l. of fluid; and clean at the ouside of a robot) in A5. In A5, the cleaning takes place in the inside of the robot (see Fig. 1 and 2nd § in A5: Le robot de traite comprend ... et un nettoyeur intégré ...).

    For R4, I use A4 as closest prior art and made an IS attack based on Partial Problems.

    For R5, A4 was also the most suitable CPA; provided the cleaning at the outside of the robot.

    I would be grateful if DP could provide a reply on my comments;

    Cheers,

    ReplyDelete
    Replies
    1. I would also like to know what should have been done about the colourant not EB portion of claim 6 when viewed as a G1/15 generic OR claim.

      My understanding of paper C is that the entirety of all of the claims have valid grounds of opposition under A100(a) or (c). However, as far as I could see, the other annexes were of no assistance, and thus for the colourant, not EB portion of claim 6, valid subject matter remained.

      It is interesting because this for me reveals a tension between the G1/15 conceptual claim splitting, and how G2/98 is applied as stated in the Guidelines you referred to, in particular the extent of "same" in terms of the invention.

      Either that or the committee missed the fact that on application of G1/15, the outcome would be different for claim 6 versus application of just GL F-IV, 2.2.

      Delete
    2. André The Giant

      Exactly!

      A total opposition (all claims killed) cannot be achieved with G1/15; and the novelty destroying of the "full" subject-matter of R6 would require an open reading of G2/98.

      Delete
    3. yes, but G2/98 (and G1/15) requires that the (broad) feature should have a limited number of clearly defined alternative subject-matters. In this case I don't known at all (as EM) whether the colorant has limited alternatives or not. If these alternatives would have been indicated in the Exam, indeed, we may argue that other alternatives have a valid priority; but this was not the case.

      Delete
    4. André THe Giant

      G2/98 refers to alternative when generalizing from a scope covering A or B (section 6.7 of the Decision) - with in this case different priorities claimed for features and B. In G1/15; I do not see this requirement of limited number of alternatives to be covered by the broader claim.

      Delete
    5. This topic is also discussed somewhere above. As you can see there, also the tutors have slightly different opinions here about what the exam committee is most probably expecting. A classic paper C approach (before G1/15) would result in 1 priority date and an easy novelty attack. There has been a lot of discussion about whether this approach was correct or not, but it has always been clear what the exam committee wanted to hear.

      Note that G1/15 is not about first application issues. It is about getting the right to priority for part of your claim, not for losing it. However, the result may be similar: 1 claim, 2 effective dates. That leaves you with exactly the same novelty attack for European Blue and no attack for the remainder of the claim. Claim 6 is not valid and there is no basis for a useful amendment.

      In the end, no matter what legal route you follow, you end up with the same novelty attack and the same arguments about A6 having the same applicant and being filed before the priority date of A1. In a worst case scenario you lose one or two marks for (not) applying G1/15. In situations like this, it is more important not to waste too much time than to have your answer 100% 'correct'.

      Delete
    6. André The Giant

      Dear Joeri,

      Indeed, the patentee cannot disclaim EB (123(2) issue) or change the general scope into a selection that would discard EB.

      I have also a concern about the selction of the Closets Prior Art for Cl 2 and Cl3; A2 is specifying that the device it describes should not be used in the are of the milking robot - doesn't it sound like a Teach Away for the skilled person that would achieve a cleaning out of the milking robot ? I would then choose A4 as CPA for both IS attacks of Cl 2 and cl 3.

      About Cl4; although A5 seems to cover all the steps of this claim; it seems difficult to derive from the prior art document that the water (although having the cleaing effect) is applied with specifically at least 2 l of fluid per cow and application, provided that there is a specific technical effect related to this feature.

      Finally, for claim 5 (teats only), A4 can be considered as the clsets prior art provided that it also relates to the same purpose: cleaning out of the milking robot because of the risk of loss of milk if contaminated (by infection); like in A1 (loss of milk due to the dirt).




      Delete
  32. regarding claim 5. The cleaning in A5 comes AFTER marking! and thus it is not in the order of claim 4! in addition as also mentioned above the river crossing is a passive act that cannot be used for anticipating a method step.


    Have you noted that C paper this year has SEVEN pages more than any previous paper! I thought that we were "granted" 10% more time for the same amount of content, but this year we got 20% more pages for the granted 10% more time; cool!

    ReplyDelete
    Replies
    1. No technical knowledge3 March 2018 at 11:25

      Yes, the paper was far too long. The paper B length also went up by 40% compared to 2017.

      The EQE survey that the EPO sent round yesterday has a question about whether the extra time was 'helpful'...! Given the choice, I'd rather go back to 5 hours with a shorter paper.

      Delete
    2. These arguments about A5 keep coming back here. It may be useful to say something about it.

      Claim 4 does not talk about 'cleaning' and there is no legal basis to distinguish 'active' and 'passive' method steps (unless explicitly claimed of course), whatever that may mean.

      The claim only requires a step of 'soaking the teats'. A5 discloses cows walking through a deep river before marking and milking. Going through the river results in soaking of the teats.

      Delete
    3. Dear Joeri, thanks yor your reponse.

      I understand your points and also the fact that we should adpat to the exam context/world etc. however there must be limits.

      As you also referred to in the solution there is something with this claim 4! I see that the feature map or puzzle detects A5 as a potential prior art for claim 4. However, we are also bound by patent law and practice.

      a method is a list of acts performed by X (user or device). "soaking" is an act. crossing the river and getting as a result soaked is not an act. Who is soacking the teats in A5?

      those are basic method claim definitions in every juridiction.


      as to the order of the features, I repectfully disagree with you. Here what A5 discloses:

      "applies a green stripe on the back of the cow before it enters the milking robot" page 1. This step is the "marking"

      "a camera sends an image of the back of the cow to an app on the mobile phone of Mrs Pazos, who can assess if the cow has been re
      cently prompted to go to the milking". page 2, 1st par. This passage indictaes that we use the marking of page 1.

      "If it needs milking urgently, Mrs Pazos only has to activate an option in her app to order a spray 7 to be actuated." page 2 1st par. This indicates that the spray is used after marking.

      "Mrs Pazos was surprised by this behaviour since she expected that the feeling on the teats would disappear while the cow crosses the flowing river 9, which is deep enough to reach almost half way up the belly of the animal". This passage comes after the spray has been actuated. it says that the effect of the spray is not affected by crossing the river. This means that crossing is performed after spray is used. Thus marking comes before crossing the river.

      however claim 4, discloses first soacking and then marking.

      Delete
    4. There are aspects anon @16:24 that I agree with you. But didn't a5 (speaking from memory) disclose that the paint marking faded over time...possibly 8 hours? This was the indication that the cow hadn't been to milk recently. If the cow was still marked, it would not be sprayed/conditioned to send it for milking. It was only sprayed when no marking was present. So the method starts with the cows on the east of the river, unmarked and goes from there. The marking comes following crossing the river upon entering the robot prior to milking . That was my reading.

      Also, I was not aware of any legal basis for this active step approach. I work in the life sciences where there are many instances of method steps which in a biological sense, following some initial stimulus or start point proceed passively as a consequence often of biological processing that do not require active participation

      Delete
    5. You will agree that the cow enters the milking robot after crossing the river, yes?

      Before it enters the milking robot it is marked, as per page 1.

      Thus, the steps are in the correct order. It's not really clear what your argument is here.

      Delete
    6. My point being the steps have to be in a certain order and depending on where you start the sequence of a5 is what is relevant. The claims specify a series of steps in a specific order. If we take your starting point then yes the method is not in the correct order (and if still marked then the go won't go for milking). But if you start with an unmarked cow, the steps of the claim are all present and in order- would you agree?

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    7. I kind of understand your point and that is what was meant by the writer of A5. However, what is explicitly disclosed is not that. And the order is not implict from the disclosure...

      The term "river" is mentioned three times in A5.

      The feature to which you refer as involving soacking is first disclosed in page 2, lines 16-21.

      this feature appears in a context/process where it is applied after spraying, wherein the spraying is perfomed based on a check of the mark on the back of the cow.

      in the other 2 places where the river is mentioned there is no reference at all to "crossing" and thus are irrelevant.

      for novelty analysis of claim 4, we have to show with reference to A5 that a step x was before step y and before Z and that those steps in that order anticipate steps 1-3 of claim 4....

      that is what A5 discloses. As to what you refer to as starting point although I agree that this is waht was meant; however, it is not disclosed.

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    8. About passive steps or active steps: I've been known to draft method claims that say "allowing a substance to passively enter a cell".

      Requiring that a method step be an act by a person sounds weird to me. What about a step of "waiting a bit" or "incubating a reaction mixture for at least five minutes"? Who's doing which active thing in such a step? What about when it's automated and a robot does it?

      What about an agricultural method where you need to water a field at a specific moment, but then it rains so you didn't need to personally spray water during that step? Wouldn't you still be performing the method, even if the spirit in the sky took care of the watering step for you?

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    9. Going through the river results in soaking of the teats - yes; but no indications are provided in A5 that it is with at least 2 liters of water per animal.

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    10. It's a river which is taught to be so fast flowing that it meets all the farms water needs. I think it is fair to say that in this far fetched scenario at least 2 litres per animal is implicit when a cow crosses such a river. The requirement in a1 is that the surface is coated sufficiently - fact that a5 taught the teats were still wet by time the cows reached the robot would imply they had had more than 2 litres!

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    11. i think i was planned to have claim 4 destroyed via a5 by the commitee, however a5 was not properly constructed, implicit features seem to weak to me for paper c...
      for that reason i think one can also combine a5 with documents where amount of litres are disclosed which is in fact A2 and A3 (50 litres tank); so in my opinion beside a weak novelty attack using a5 it must also be allowed to make an i.s. attack combining a5 and a3 (or a2).

      so much discussion unless everyone should have the same answer, god. seems they want to make fun of us.

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    12. Actually I had a lot of issues with A5 as described above (active aspect and the order of features whcih is not there).

      On one hand I saw no chance for using A5 as novlety destorying but on the other hand A5 must be used for claim 4 (otherwise it will not be used at all which has never hapened in a C paper).

      The only reasonable way I found to attack claim 4 using A5 is to combine it with A2. A2 is the closest prior art for claim 4 and the step of marking was missing in A2.

      However, it took me a LOT of time to find out how to deal with claim 4. At the end I had only few minutes left to write attacks for claims 4 and 5. The problem that this also influences the work on the other claims as you are unsure about the attacks of 40% of the claims.

      I found it really not fair having a document such as A5 and having 20% more pages in the paper compared to previous papers.

      we spend at least 70% of time in managing/cross-referencing information and the rest for arguing and further collecting the information from papers while writing.

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    13. I totally agree. Normally in a paper C the pieces of the puzzle fall into place nicely and you know that you are on the right track. This year, you had to use a sledge hammer to fit the pieces together. Usually that is a sign of being on the wrong track and potentially getting 0 marks. Consequently, you had to spend a lot of time considering and re-considering attacks, so that in the end there was not enough time to complete the paper. In addition to that there was more to write than in previous years due to the lengthy claims and numerous synonyms used. All in all just a badly drafter paper C. In my view the worst ever (I have done 2010-2016 as preparation and sat 2017 last year).

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  33. Does anyone know if a "wrong" attack does not gain any points or are the correctores normaly kind of "tolerant"?

    i guess (and hope) claim 1 novelty atatck must bring more points than any usual novelty attack since the definitions were rather long, right?

    e.g. i discussed a partial problem case for claim 5 using A4 but other
    cpa document

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    1. Last year there was a plausible IS attack on claim 2 (Deltapatents also had it in their model answer) for which they awarded 0 marks. I guess it depends on the difficulty of the paper whether they award points for "wrong" answers or not. In my view all of this year's IS attacks were less plausible than the IS attack of 2017 for which they gave no marks!!

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    2. In 2016, claim 1 was killed by a novelty attack, but the Examiners required an addtional attack on inventive basis as it was plausible.

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  34. In the tutors‘ reports 2016 and 2017 it is said that marks may also be awarded for alternative attacks.

    In particular for 2017 and claim 2. However, they might have handled adressing the spring issue very strictly.

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    1. My adivse is: if you have time and in case of doubt, just do the additional/alternative attack.

      I know tutors advise against the additional attacks and to some extent they are right as apart from taking precious times it plainly demonstrates a candidate cannot make the right choice and thus he is not well prepared.

      However, the choice of CPA is often matter of speculation and discussion days and sometimes years after the exam. Indeed, you have to choose the most promising starting point taking into account (purpose and/or filed or strucutural similarities). This is not straightforward.

      EQE rules doe not penalise wrong attacks, thus you there is nothing to lose in doing them.

      An additional attack could grant you a couple of marks which may be essential to pass the exam.



      Delete
  35. Dear Joeri,

    could you comment on this question with respect to Claim 2:

    A4 lies in the field of a device(4) for soaking (A4, ((0004)) and cleaning the teats of a dairy animal (A4, (0001) & (0008) outside a milking robot (10) (A, (0003) implicitly disclosed). The title "Mobile treatment device using a soaking solution" (A4) does not determine the field of the invention, as it is not part of the disclosure (only description, claims, and drawings; the title is not part of the description).

    A2 lies in the field of device for cleaning the teats of the dairy animal (A2, (0001)) outside a milking robot (A2, (0010), S.2: "They allow the use of devices such as our portable cleaner at any location of the farm").


    The technical field of A3 is the automatization of a dairy farm.

    In A1, the automatization is neither the field of the invention nor a purpose of the subject-matter according to claim 2.

    A2 does not disclose any additional feature of claim 2. But we are already on the structural/functional level. What is about the purpose of claim 2: "the use of a brush 7 is that the soaking fluid will be spread by the brush in a uniform manner over the teat" (A1, (08)), since the purpose of claim is also part of claim 2.
    and "reaching the cows outside said milking robot" (A1, (13)).

    A2 teaches the purpose "ensuring uniform wetting of the animal part concerned" (A2, (7)).

    A4 teaches "The invention allows to reach the animals wherever they can be found" (A4, (4)).

    Both A2 and A4 teach at least one of the said purposes, so that we have to consider the number of structural and functional features which A2 or A4 has in common with A1?

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    1. It seems to me that some confusion lies in how to approach a dependent claim. in the exam, and in my view correct, a dependent claim should be attacked in the assumption that the independent claim fell. In the attack style, claim 2 should thus now be seen as an independent claim being the combination of claims 1 and 2. In this exam claim 2 is long and thus will naturally impact such a combined claim a lot. A main purpose of the additional features of claim 2 is to provide an autonomous cleaning device (see [15]). This makes it very difficult to start an attack from devices which are not intended/unsuitable for autonomous behavior.
      So, when looking at claim 2 we are not yet at a structural/functional level, we have to assess the closest prior art anew, looking at the combined claim and should not be biassed by our considerations for claim 1.

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    2. I can comment, but I must warn you that inventive step and CPA selection are best dealt with in a course, not in a blog discussion. But I answer it, because your question shares some misconceptions I've also noticed in quite a few of the comments above.

      CPA selection is about what the embodiment does and have. Titles and general topics of documents are not very relevant. The description of documents can explain the function of claim features and are useful for argumentation, but the embodiments and their features determine structure and function.

      The main functionality of the claim 2 device is A:teat cleaning and B:positioning the device for that. For both functions, quite a lot of features are included in the claim. You then look for a CPA that preferably already has both functions and a lot of the required features and can relatively easily be turned into the claimed embodiment. The device in A4 has both main functions, does B with the claimed features and only misses the brush for A. The brush can be added rather easily. A2 does not yet have any positioning feature and also misses the reservoir. Adding all missing features to the handheld device of A2 seems improbable to me. Of course, you can add the complete device of A4, but then why not start with that?

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    3. I agree with Jelle that the purpose of claim 2 is clearly autnomization or automation of the cleaning. In my view, the "positioning of the device" is not a purpose it is the solution itself or what is performed by claim 2.

      The only prior art document that explicitly deals with automation is A3, which must be used as CPA for claim 2 following exam and GL rules. It also fits nicely because the missing features are present in A2 and A4.

      the statement "a single motor is sufficient..." does not teach away from replacing the single motor by multiple ones because one motor is sufficient for the movement as defined in A3 but it is NOT sufficient to solve the partial problem of doing movement of the device as in A4. If I would stick to the same mouvement defined in A3 then yes the single motor is sufficient; however, my aim is to move the device like in A4 and thus the single motor is not sufficient.

      Delete
    4. With 'positioning', I was referring to the fully automated process of positioning the device for proper cleaning as claimed in claim 2. A good example of how in person discussions work a lot better for these topics :)

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    5. The device of claim 2 is for A: teat cleaning and b: full automated process, so it is not merely directed to the purpose of claim 2 but also claim 1. @ Joeri and Jelle: Could you confirm this?

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    6. Yes, it is a combined claim and clearly claim 2 influences the purpose. The better the closest prior art is targeted at these purposes the closer it is. But this also holds for 'structurally close' -structurally close to both (i.e. not many modifications required looking at the combined claim).

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  36. This comment has been removed by the author.

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  37. Thanks to Jelle and Joeri.

    ReplyDelete
  38. T 282/12 (Coated tablets /JOHNSON & JOHNSON) is of 9.11.2017, so after 31.10.2017, the exam cutoff date. How does this affect the answer?

    PF

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    1. It obviously does not. As Joeri already indicated the committee will most likely not have wanted this discussion. However, in C2007 it went rather wrong. If the claim of A1 is very generic and a potentiial 1st application is very specific, you could not claim priority from it (not the same invention) and according to the then ruling case law it was thus also not a 1st application for that invention. The C committee in 2007 made an error and believed that if the potential 1st application was novelty destroying for the claim (a species is novelty destroying) then it could be used. This was wrong. Ever since the committee made sure to be a bit closer to the claim. We can have a debate about if they were close enough in light of the than valid case law. In this exam, they were reasonably close. Just like Joeri I am sure that they believed it to be correct.
      Now with the new decisions, a species is already doing the trick. I do not think you had to argue this in this exam. In the future it is wise to do so.

      Delete
  39. Hi,

    What is your guess on how the marks will be distributed among different attacks?

    Thanks!

    ReplyDelete
  40. i have claim 1, claim 2 as DP (claims 3 and 4 different) and in clim 5 i have partial problem theme, further i have 123(2) problem found and claim 6 novelty but arguing 54(3)...

    hopefully a lot of marks are given for different attacks...

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  41. I missed out the partial problem attack. Basically run out of time and didn't get to do claim 5a. Worried that the partial problem will be worth a lot of marks, so even though the rest of my attacks same as DP, including claim 5b and claim 6, this might not be enough to get 50%. Oh well.

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    1. Same here. All attacks as above and same planned attack for 5a just zero time to do it - started it and left half answered (hoping they will see it was just time issue and give some credit). Only concern is that, knowing I was under time pressure, I rushed the other attacks....

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  42. It doesnot happen often in view of Art. 24(1) REE ("An appeal shall lie from decisions of the Examination Board and the Secretariat which adversely affect the appellant, but only on the grounds that this Regulation or any provision relating to its application has been infringed.") and established case law of the DBA, but: a main exam appeal was successful!

    D 14/17 was successful based on an A6 attack on claim 2, that attracked 0 marks.

    See here (in German):
    http://www.epo.org/law-practice/case-law-appeals/recent/d170014du1.html

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    1. I bet that was an often used attack. Would other people that failed for the reason that it was not accepted but that did not appeal also be upgraded, as happened in the Pre-Exam of 2015 (see the Addendum on the Pre-Exam 2015 Compendium: " In addition, also candidates who did not file an appeal on this issue but in the light of these considerations would have passed, were upgraded and were informed accordingly.")?

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  43. Furthermore, in case D 25/17 also claim 5 and the general part have been adjudged as incorrectly marked in Paper C of 2017.

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