Paper C 2022 (Part 1 and Part 2) - EPO scores with accessible paper

The theme of this year's paper was football. Specifically, the electronic detection of goals.  

This was the second year with the online electronic paper C. Like last year, you were provided with all of the prior art in the first half, but not with all of A1's description. Last year the claims were split down the middle, with 3 claims in each half; this year the first half had 2 claims and the second half had 4 claims. 

Some felt that last year's claim split was not ideal, as most of the analysis is done in the first half. This year with one claim less to do, there was enough time to read everything. 

The application did not claim priority; thus the effective date section was straightforward. But the list of evidence made up for it, and was more challenging, with a lot of admissibility issues: A2 was a newsletter for which you would have to argue that it was available in time. A3 was clearly too late, but contained lots of information about past prior art.  A4 referred to a conference, but with the twist that the slides of the talk were provided to the participants. A5 was regular prior art and A6 a 54(3). 

Claim 1 was a special type of yarn that could be used in a ball. The yarn has a metal wire which makes it electronically detectable. 

1. A hybrid yarn (1) for use under high mechanical stress conditions, such as for a ball (9) for a ball game, wherein the yarn (1) comprises an inner strand of  chemically-resistant organic fibres (2) and a circumferential outer layer consisting of 10-20 thin electrically conductive metal wires (4), the thin electrically conductive metal wires (4) being twisted around the inner strand along the longitudinal axis of the yarn (1), whereby a void is formed between the inner strand and the outer layer by removal of material using a solvent.

All documents are in time and need to be considered. The 54(3) document A6 missed two features (no void, and the wires where the wrong way around). So that one is unlikely. A2 discloses a yarn but misses the void. A3 only discloses metal yarn, so seems even worse. A4 misses a couple of features, e.g., the materials of both the inner and outer strands, and the number of conductive strands. A4 also misses all of the purpose features (high stress, a ball). Seems A4 is a typical D2, but one could keep it on the shortlist if nothing better comes along. 

A5 seems to have everything then, except for the feature 'removal of material using a solvent.' A5 does remove an intermediate layer but uses a thermal method. This feature is a product by process feature, so one needs to ask yourself if novelty is imparted through it--can you tell the difference in the end product without having seen the manufacturing?

This one, unfortunately, led to a split jury here, with some of us arguing one way and some the other.  

One could argue that Claim 1 is novel over A5. That, you can tell the difference, and so the feature does impart novelty. The argument would be that A5 explains that the thermal treatment is not so great, as it leaves material behind, leading to a non-constant void. A1 explains that chemical removal is a more precise method leading to well-defined and constant dimensions. These are things you can see in the final product. In fact, A1 spends two paragraphs on explaining why chemical removal is better. Also A4 seems to imply that chemicals remove all of the intermediate layer. 

On the other hand, one could argue that Claim 1 lacks novelty over A5.  The argument might be, that A4 explains that one particular chemical is great at is leaves no residue of the polyamide at all. From this one could derive a contrario, that other chemicals  apparently do  leave some residue behind. Is that residue of constant width or not? A4 doesn't say. Moreover,  A5 uses the word 'may' to indicate the problems with thermal treatment. Maybe, sometimes, you get a great result with thermal treatment. But if thermal is mostly bad, but sometimes good, and chemicals are mostly good but sometimes not, can you still tell the difference? Maybe not, and this would lead to a novelty attack based on A5.

If you go for Claim 1 being novel over A5, then A5 would make a good closest prior art. 

Once one opts for an inventive step attack, the D2 document can only be A4. A weakness in the inventive step attack is that A1 explains that a constant void is good for mechanical resistance (otherwise you 'rupture even under low mechanical stress conditions'). But A4 does not mention this effect at all. So, here we get the missing feature from A4, and we don't exploit the product by process part. 

Final attack is Novelty A5 or Inventive step A5 + A4.

Claim 2

2. Method for producing the hybrid yarn (1) according to claim 1, comprising the
steps of
a. providing an intermediate layer of polyamide fibres (3) around the inner strand
of chemically-resistant organic fibres (2),
b. twisting the thin electrically conductive metal wires (4) around the intermediate
layer of polyamide fibres,
c. chemically removing the polyamide fibres (3) by a treatment with a solvent
consisting of 40-60 wt% of trifluoroacetic acid in acetone to provide a void
between the inner strand and the thin metal wires.

We need to consider if we have a closest prior art change. Perhaps we need to switch from A5 to A4? But A4 still misses the materials of the inner and outer layers, and the electrically conductivity. Still no purpose features, although these are now perhaps less important as we are not formally dependent on claim 1. None of these seem to be of sufficient importance to tip the scales though. It seems we can stay with A5 as closest prior art. If we do, we get the difference feature of claim 1, but also the particular solvent. Fortunately, both the solvent and range are anticipated by A4. A1 mentions as an additional effect that trifluoroacetic acid is a good cost compromise. A4 does not mention costs, so we fudge this a bit, perhaps cost is not really technical, or implicit, or inherent, pick one. Final attack is A5 + A4. When drafting the attack, you may have to a good chunk of the novelty analysis again, to make sure every nitty-gritty bit is disclosed. 


Part 2

Claim 3: added matter
Claim 3 was introduced during examination, and should therefore have support from the application as filed.
Claim 3 as filed, corresponds to claims 3 and 4 as granted, includes all features of granted claim 3, but also include the features of present claim 4, in particular to use 'antenna yarn', ie., a hybrid yarn consisting of organic fibres (2) and thin metal wires (4). Antenna yarn is essntial. Only through such a
yarn is a stable three-dimensional configuration of the antenna is guaranteed. Moreover, the yarn facilitates stability and ensures a long lifetime. Without the yarn, the effect of the invention is lost. [19].
Thus claim 3 cannot be based on claim 3 as filed.

In addition to the Art.123(2) attack, also two auxiliary novelty attacks were possible.

A first novelty attack over the first model Vuwuseeler introduced in 2010, citing A3 as evidence. If you did not do this attack for claim 3, you would need a lot of this anyhow for the attack on dependent claim 4.

A second novelty attack over A6 (Art.54(3) document). If you did not do this attack for claim 3, you would need this attack anyhow for the dependent claim 4.

Claim 4(3) is not novel over A6 and Claim 4 is not inventive over The first Vuvuseela ball (2010) (described in A3) and A2.

Claim 5. Inventive step: first Vuwuseeler ball + arrangement (as described in A3, page 2) + second Vuwuseeler arrangement (as described in A3, page 3) + A2.

Claim 6 Basically the same attack as for claim 5. A3 does not disclose a computer-implemented method for adapting the odds in live sports betting. The latter feature is not technical, and thus does not contribute to inventive step. Accordingly, claim 6 is not inventive for the same reasons as claim 5.

It is noted in passing that the application of the goal detecting arrangement to odds computing would in any case be not inventive, as betting on goals is well known and a commercial issue, as evidenced by the final remarks in the interview of A3 about ''odds for sports betting"

Comments

  1. Thank you for your analysis! For claim 1, I also couldn't decide between the novelty attack based on A5 and IS attack based on A5 + A4. So I ended up doing both.

    I started from A4 as CPA for claim 2, and did inventive step attack based on A4 + A5. Will I loose all marks for claim 2 because I used the wrong CPA? How many marks does one typically loose for using wrong CPA?

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    1. Same, A5+A4 for claim 1 then A4+A5 for claim 2. I felt A4 was the more logical starting point as it had the dissolving step which seemed more important in claim 2 than claim 1. :/ Now I'm unsure.

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    2. I went for novelty against claim 1 because claim 1 (at least in the French version) does not specify elimination of all the polyamide material, it just specifies that there is a void, which is the case even when thermal treatment is conducted

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    3. Me too, as Blink said. (I did it French)

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  2. For claim 2, I went with A4+A5, but I think your combination also works. It is a close call, and I am sure with more time, I could have decided the other way. Hopefully, there are some points for A4+A5 (as I have good argumentation and reasoning). A4 literally followed the steps of claim in the slides (if I remember), which seems like a good place to start.

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    1. I think purpose is the issue and I understand that you would get 0 marks for incorrect cpa (im in the same boat). DeltaPatents, please correct me or confirm.

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    2. I think in cases such as these, there are often marks for the "wrong" attack if it is well reasoned - I think A5+A4 is clearly the better attack, but A4+A5 also seems like a decent enough attack to attract marks. It would be harsh if there were no marks at all.

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    3. 123, thanks for the kind comments! I hope so too.

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    4. Same story with C5 - I think if you start at A3 2nd embodiment as CPA, it seems very reasonable to do so and should attract marks. They need to take different attacks into account as long as there are reasons to back it up.

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  3. I scratched my head about the product-by-process feature of claim 1 too, and then decided to cite the guidelines, argue that this may be the case here, and hope that they will not deduct points.
    Alternative, claim 1 being new over A5 but me arguing novelty, would probably have lost more points.
    I wonder if we should have written something along the lines of "if the proprietor can provide experimental data showing that the product of A5 is discernable from that of claim 1, we submit the following inventive step attack as an auxiliary request..."

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    1. AV, you made a good point. In my opinion, because the claim also cited "by a solvent" this was also a hint to do an IS attack as compared to novelty. They definitely made us think about. Also, the slides for A4 specifically said all the polyamide (or whatever) is removed and A5 already had polyamide (so there is no hinderance, when going for A5+A4). In my opinion, under time pressure, you make a decision and move on. Both attacks should get points, but one more than the other (For whatever reasons that is, I don't know).

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    2. I thought about doing a novelty attack and an inventive step attack (because that is what you would do in a real opposition), but I did not have time.

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    3. I did novelty attack using A5; I then attacked claim 2 using A5+A4; I then went back to claim 1 and provided a short IS attack being able to use what I has put down for the method because it would result in the feature, but this meant I didn't need to spend a lot of time also providing a full IS attack for claim 1 - hopefully pick up some marks

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    4. Doing a novelty attack using A5 and then an inventive step with A5 + A4 for the same claim is a guaranteed 0 points, because if you argue that it is novel over A5, then you have contradicted yourself. This was one of the biggest take home messages from the deltapatent courses.

      Not what some want to hear, so I'm sorry for being the bearer of bad news, but that is a guaranteed 0 points... :(

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    5. Hi James, I don't agree. I have not heard that at the deltapatent course and I remember from previous exams in the candidate's answer having both novelty and IS if the novelty is a weak attack. This is also something you would do i real life. @deltapatents - can you please confirm?

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    6. Charlie, you are right. According to my Delta patent course, there is no "penalty" in paper C for doing the wrong attack. Rather, you just lose time. Time is valuable though. And, in past examiner reports they have said "alternative attacks were awarded points if well-argued", maybe this refers to not choosing the main attack, but the same reasoning applies here.

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    7. Hi Charlie. I completely agree that you may provide an IS attack if the novelty attack is weak (usually the case for Art54(3) attacks), but you just shouldn't use the document that you used for the novelty attack as the closest prior art.

      It obviously IS what you would do in real life, but the exam has its peculiarities...

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    8. Hi Gregory, the penalty is not for carrying out the wrong attack, but rather that you have contradicted yourself. For the novelty attack you say all features are disclosed, then for the IS step you have to say they aren't disclosed

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    9. well, A4 does not teach taht everey solvent removes it completely..

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    10. I see, well, I did not do it. So, I'll live with the weaker (according to Joeri) IS attack, which helpful gets me some points (instead of none). Just want to get to 45.

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    11. James, you made me panic and I check both the DP slides and DP book but did not find anything that supports what you said. Could you please tell me where you found that? Also, I don't think it makes any sense because then you could argue if you attack a claim on e.g. an added subject-matter and complement the attack with an aux. novelty attack (as is the case for claim 3 in this exam). First you argue that there is added subject-matter, and then you contradict yourself by doing a novelty attack on subject-matter that you considered not part of application. Anyway, if I fail because of this, I will certainly consider an appeal.

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    12. ...argue that attack on added SM and complement with novelty attack should also give zero points.

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    13. Hi Charlie, I'm sorry to make you panic, I don't mean to cause unnecessary alarm, but I am 99.9% percent sure that I am correct on this issue, whether it makes sense or not. My course material is on my desk at work, so I can't check right now. I'll look in the morning.

      I have had a quick google search, and have found a comment from Roel (deltapatents tutor) explaining this in a previous blog. Link is:

      http://eqe-deltapatents.blogspot.com/2021/06/e-eqe-2022-examiners-reports-available.html

      Comment at 23 June 2021 at 10:20

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    14. it is possible that this only applies to paper D, in which case I may be wrong

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    15. Thanks James, I appreciate you looking into this. Not sure about the comment from Roel...it seems to applies to paper D only. It is very common in paper C that there are multiple attacks. Also, I checked my own materials and the candidate's answer in 2013 had a weak novelty attack for a suitable for claim complemented with an IS attack using the novelty-destroying document as CPA. This is exactly what I did. The Examiner's report for 2013 did not say that 0 zero points were awarded. Hope Sander or Joeri can comment on this and put me out of my mysery :-)

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    16. It only applies to Paper D

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    17. Thanks anonymous, so happy to hear that!

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    18. In C,you can do as many attacks as you want. No megative marking whatsoever.

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  4. For me, the point that made me fairly confident that claim 1 isnnot novel over A5 is that A4 explicitly says that other solvents than trifluoroacetate do also leave residue behind. So the product as claimed is not different from A5 (because claim 1 says solvent, not trifluoroacetate). And also inventive step was kinda awkward.

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    1. A1[15] says that "This method of dissolving an intermediate layer has proven to be the most precise way of controlling the dimension of the void." and A1[16] that "For any hybrid yarn to be used in high mechanical stress situations it is important to have a void with well-defined dimensions which are constant along the yarn's length." - To me, this was the hint that, even if not all residue is removed, dissolving still leaves to better controlled dimensions, meaning there is a difference between A5 and C1. I think this wasn't particularly well signposted, and would hope that the Examiners take that into account when marking, whichever way they decide to go.

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    2. I like this argument!

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    3. 123, I did not notice that during the exam. But this is a good point.

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    4. PK647's argument I meant.

      A1 only used the best solvent, but the claim covers other other solvents too and sets no boundary on the amount of residue that may be left. The claim only requires some void appearing.

      It's impossible to compare 'non-complete removal' in one document with 'more than no residue' in another document. So not clearly and unambiguously distinguishable in my opinion.

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    5. I agree. A4 says that other solvents leaves residue and the claim only says by using solvent. It can be a solvent which will leave some residue

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    6. I noticed that it taught that the thermal method "at least partially removes" the polyamide layers. My understanding is that this covers removing all, therefore could use novelty attack; and the claim did not define that the void was constant along its length (if this was the case then I think IS attack would have been needed), but it only claimed a void. Thus I think novelty attack was sufficient

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    7. I see your point Joeri, but the papers did not provide us with how to tell the difference or with the fact there could even be a difference. It seems you are making a judgment call based on scientific knowledge (or lack there off) from the references. But, I am probably wrong. It just seems that paper C but this on a cliff, and one small step either way makes a big drop in one direction.

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    8. @Joeri To me A1[15] and A1[16] seemed like general disclosure, whereas A1[17] then specifically mentions the trifluoroacetic acid as a preferred solvent - A1 isn't explicit in how you would tell the difference, but it suggests there is a difference ("more precise way of controlling the dimensions"), so it would seem odd for the Examiner's to include this without any reason. If they wanted a novelty attack from A5, they could've simply left out parts of A1[15] without making it ambiguous.

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    9. I see the issue people have with whether "suitable for" is fulfilled or not. I had to discuss this at length, by arguing that A5 in fact demonstrates that it is suitable, but I wasn't super happy about it.

      On the other hand, if you conclude that claim 1 is novel over A5, I don't see how to construct a PSA inventive step argumentation based on A5+A4. A4 certainly explains how to get rid of all polyamide, but it doesn't teach that this leads to improved tensile strength, which is the technical effect/objective technical problem.

      Given that I thought such a IS attack would be very weak (mostly formalistic, rather than technically driven), I felt that the novelty attack was the only option (with some convoluted argument as to why "suitable for" did not restrict, given that A1 was in the context of sewing yarn, whereas the "suitable for use" didn't necessarily say "suitable for use as a sewing yarn". Other uses at high mechanical stress may not need the same requirements as discussed in A1.

      A bit convoluted, but that was the best I had...

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    10. @PK647 @Joeri - I agree.

      I disagree with DP's argument that the product by process claim is limiting -- complete removal or a specific solvent is not recited in claim 1, but this would be required to argue that the product by process feature confers distinguishable properties on the void.

      I think the product by process feature is not limiting in this case.

      A5 discloses a void with residues ([10]) that is obtained by the process of A5.

      A4 confirms that the use of solvents (except for polyamide) create a void with residues.

      The process of using solvents thus results in the same structure -- a void with residues -- as the process of A5.

      Thus the product by process feature is not limiting.

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  5. For claim 2, I went for novelty attack as it is " a method for". A bold choice but I thought that there is no novelty attack for me and I don't want to do A5+A4 again.

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    1. Novelty based on A4? Where did you get the metal from?
      Or, based on A5, the solvent having TFA?

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    2. I did the same, attacking claim 2 for novelty, but I think it is not correct actually. I have also chosen to attack claim 1 for IS while I see that novelty seemed preferable. I hope that both options will still attract some marks...

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  6. I have a Clairity attack for Claim 1 as, well.

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    1. Clarity can sometimes be argued indirectly, based on Art. 83 and the argument that the invention is unworkable over the whole claimed (unclear) range... However, Art. 100(b) is not to be cited in C according to the implementing regulations...

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    2. clarity is not a ground of opposition...

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    3. 100(b)
      the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art

      I did not see how the gap is providet with no middel Layer

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    4. ooh shot with claim too it is... hope I wont loose to many points because of this

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    5. Clarity and Art.84 in general is not a ground of opposition.

      Insufficiency/enablement is not to be used in C (EQE Rules)

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  7. at least in the german documents.... there was an error in the letter of the client. It stated to oppose patent "6" 474 901 B1. But that was not the number of A1.. which was "4" 474 901 B1.

    So in principle, one was not able to carry out party 2! What do you think?

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    1. Only a German would notice such detail! So, Germans should pass. And for the German who wrote the exam, he/she must not be very German. Hi Dirk (from Delta Patent courses).

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    2. ;-) well I continiued to write the exam. But I was confussed... Thanks for the compliments ;-)

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    3. I would apply a Rule 139 correction :-)

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    4. But was it the same case in the other languages?

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  8. For claim 3, was Art. 123(2) enough? it seems you could have also used the IS for (from claim 4) in addition the art. 123(2) attack. Normally, EPO does not require an additional attack, but I am just curious how it is treated.

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    1. I felt like I need at least one novelty attack, so I did one for claim 3 based on A3, 1st embodiment. I think we should discuss this in the post about to be published by Deltapatens for part 2 though.

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    2. How can the C committee require a novelty attack if the claim does not have an effective date?

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    3. But it's a weak 123(2) that can easily be overcome
      Therefore I think C3 needs to have novelty attack too and that's a3 1st emb.

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    4. @Anonymous17 March 2022 at 19:26
      I agree + would also add a second A. 54(3) novelty attack over A6

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  9. I have a feeling there will be a lot of pointers for arguing the admissability of A2 and A3, i.e., you need to explain what additional evidence you will bring. A2 did not have the traditional "last modified" date. A3 had a bunch of prior use stuff, but the date of the document was too late, so you need to invite Rachel, a referee, or player to provide a affidavit or be a witness. I can already see the EPO writing "candidates did not provide enough evidence to explain why A2 and A3 could be used as prior art."

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    1. A2 came from archive.org, which has case law. Cited something from visser, there also appears to be something in the Guidelines.

      A3 was evidence for public prior use; so I just took it, assuming that products with "huge success" would be proveable.

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    2. evidence for public prior use was my argument as well.

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  10. With respect to claim 1, I went with novelty because the GL state that the burden off proof lies with the applicant. The general statement that solvent removal leads to a better structure is no "proof" and A4 indicates that only one solvent of many tested solvent leads to full removal.
    Furthermore, the paper wouldnt have one single 54(29 attack otherwise and part 1 would only have one pretty identical attack for both claims 1 and 2.

    For claim 2 I started out with the obvious A5+A4 combi, but I couldnt make the problem work. Full removal with the TFA/acetone combi leads to better elasticity and tensile strength according to A1, but a solution to That problem is not obvious from A4. To make this work, one would have to limit the technical effect and problem to full removal (like that was a desirable problem to be solved itself) which I felt is a bit of cheating.
    Therefore I re-wrote everything with A4 as cpa, but I ended up having to combine with A2(because the technical effect of metal wire is turning the yarn into an antenna) and then I ran out of time thinking about the other difference (ORGANIC core fibers). So probably thats a whack attack.
    I still cant fully see how A5+A4 is supposed to work.

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    1. I agree. And as soon as there is one solvent-based yarn/void that cannot be distinguished from the one from A5, novelty is gone. It nowhere says that with solvents they are always perfect, on the contrary. So product-by-process attack must succeed.

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    2. I meant that I agree with your claim 1 arguments.

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  11. For C5 - what do Delta patents reckon A3 2nd embodiment as CPA as this is the purpose of C5

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    1. It's arguable that this is the CPA. I spent a long time considering this. It is definitely very close so I wouldn't be surprised if C committee took this into account and award marks for it.

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    2. In practice, I would probably add that attack.

      But I think they put a teaching away in the paper to make you not do it. Since your OTP will have something to do with making the system work for longer (because the antennae don't move), a solution (the old ball) that tells you it doesn't last very long is not ideal. Of course, we've already solved that problem at C4, but it's not an ideal attack.

      Starting from the first embodiment it looks more straightforward. Two clearly separate problems.

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    3. I did this too. I think the arguments as CPA are quite convincing. It is a portable device and A3 1st embodiment is basically an integrated system.

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    4. I agree with this, also the 2nd embodiment was moveable/attachable for the receivers that create the EM field--same as the claim. SO, I thought it has same/similar tech field, purpose, and many features (including a key attachable feature) in common. I think there must be some credit awarded for this attack.

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    5. I too used a3 2nd embodiment as CPA for C5 along with A2. I did use A5 for rubber bladder. My reason for CPA is the same as others here
      It does seems to hint that A3 2nd embodiment is CPA for C5. But I see that it is easier to stick with A3 1st embodiment.

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    6. Me too. A3 2nd embodiment as CPA for C5.

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    7. I think at the end of the day, both embodiments are potentially suitable closest prior art choices. Case Law is pretty consistent that so long as one document is a suitable choice of closest prior art, then the proprietor cannot argue that another choice is slightly closer and thus the inventive step attack falls. So long as it is not inventive over a suitable choice of closest prior art, this is usually sufficient to kill the claim (in real life, certainly)

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    8. I think it seems that A3 1st and 2nd embodiments are very suitable CPA for C5. They certainly share alot of the same features and there are pros and cons for each one as CPA.

      I would think that the Examiners would consider this as both are valid CPA (in my view). You could combine A3 1st embodiment with A2 and the A3 2nd embodiment with A2 with no problems.

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  12. Thabks Delta patent. There were too many attacks for this exam. It is quite unrealistic to get all these attacks.

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  13. I don't fully agree with the 54(3) novelty attack.

    I don't think A6 discloses an electronically detectable ball with a bladder.

    It discloses a yarn suitable for stitching a traditional ball. There is no teaching that the yarn of A6 would form an antenna essential for making the ball electronically detectable, or that a traditional ball is a ball with a bladder.

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    1. A6 doesn't disclose a rubber bladder. Please tell me where it says this.

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    2. I didn't see this in the exam, but I have since been persuaded after reading everything again. A1 (I think paragraph 18, but I'm not sure - I left the paper at work), explains that all balls with joined segments necessarily have rubber bladders, so a football as mentioned in A6 would necessarily have this feature.

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    3. As for electronically detectable, A1 also says that you need at least a certain number of stainless steel wires for it to be electrically detectable. A6 fulfils this requirement, thus it would be electrically detectable

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    4. Bladder follows from A1[18]
      electronically detectable also follows from A1[18]

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    5. A6 discloses yarn with 90 steel fibres with 25um diameter each and that the yarn may be for knitting segments of ball together; A1 states that yarn where the metal is steel (less good than Cu) requires at least 40 fibres to be suitable as passive antenna. Therefore, A6 discloses a ball with yarn which may be usable as such an antenna..

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    6. Thanks James and SLJ,
      I always have trouble with such time-traveling definitions, application putting words into prior art's mouth. But at least I now understand the argument :)

      I still maintain that a stitching per se does not result in an antenna, particularly since A3 defines "antenna coils". Is all stitching coil shaped? Who knows.

      C-World is weird.

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    7. I'm not so sure. There is a lot of interpretation required here to include A6.

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    8. @AV - I agree. C is quite artificial and very different from "real" oppositions/arguments

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    9. I also agree with @AV, though I can also follow the argumentation re A6 for novelty attack. BUT:
      A6 just mentions in [0011] "...such that it can even be used.."
      A6 does not show unambigously and directly an Electronically detectable ball which is required for Novelty attack

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    10. A6 discloses a traditional football and it is a common general knowledge as supported in A3 (there is a discussion about the traditional football having rubber bladder adn external covering with hexagon segments on page, I guess), that ball has a bladder.

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  14. I also read claim 6 "computer-implemented method for adapting the odds in live sports betting" as a means to cheat (e.g. just before the goal is registered the computer program changes something, as the expression "for adapting the odds" can mean so many things (eg. placing the bet just after the goal is scored but the result has not yet registered in system etc). For non English speaker the term "odds" is very odd and confusing... Hence I thought to cite Art 53(a)EPC as it is exempted to patent an invention the commercial exploitation would be contrary to "ordre public" or morality.

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  15. Do you get novelty marks in C1 when you basically written novelty attack using A5 in C2. I see sometimes Examiners have awarded marks to the previous claims.

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    1. Official guidance was that nothing written in C2 will affect the marking for C1, so if you missed something in C1, you can't correct this during C2

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    2. I've written this in first part. Basically I did wrong attack to claim 1

      And did a5 with a4 for c2 but obviously i did alot of the novelty attacks in C2..I just ran out of time to add C5 as novelty

      Would I still get some marks for c1 as basically it is still the same attack on C1 but written in C2 which is dependent on claim 1.

      Delete
    3. I've seen in the past examiners comments that novelty points in dependent claim will apply to the previous claim so you may well get some points for C1.

      Delete
  16. I had added matter on C4 because it didn't contain antenna yarn. Would I lose any marks for this. It is dependent on C3 and split too.

    ReplyDelete
    Replies
    1. C4 is C3 as filed due to the dependency...
      On a positive note, I don't think you lost any marks. But I don't think you gained any either.

      Delete
  17. I still don't understand how A6 is novelty attack for C3 and C4 when there is no rubber bladder.

    ReplyDelete
    Replies
    1. Bladder follows from A1[18] which provides a general definition that balls stitched from segments have a rubber bladder. A6 discloses such a ball, and thus has a rubber bladder

      Delete
  18. Well, I got a 42 in 2021 with no correct attacks. This time, I have 4 correct attacks, and my incorrect attacks are highly debated (here on this blog). So, I am hoping that is enough for a 45.

    ReplyDelete
    Replies
    1. that is re-assuring to hear!

      Delete
    2. I really hope so to. I didn't get all attacks for C3 and C4 but there were too many. I had A3 novelty attack already Art 54(2) EPC with A3 1st embodiment so it a strong attack and it seems time wasting to go hunting for more, especially I ran out of time in the end. I hope they take this into account.

      According to Delta patents - I got
      C1 - IS A2+A4
      C2 - IS A5+A4
      C3 (novelty attack using A3 1st embodiment)
      C4 - IS attack A3 1st embodiment with A2
      C5 - IS attack A3 2nd embodiment with A2 and A5
      C6 - IS attack based on C5. I did do Art 52(2)(c) but I don't do computer implemented invention. However, I realized that it was based on non technical matter at the end but didn't had time to change the "heading of Art 52(2)(c).

      Enough to get sufficient marks for a pass?

      Delete
    3. you should claw some novelty marks for C1 from your analysis of A5 in your C2... (in line and consistent with marks awarded from previous years where examiner gave novelty marks on novelty analysis done on dependent claim to the independent claim) so may get some marks in C1 also.

      Delete
  19. I think it's quite realistic to have A3 2nd embodiment as CPA for C5. Yes there is more work but it is definitely possible given that it is only system that is portable. What do you think.

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    Replies
    1. I think A3 1st emb. is ultimately the "most promising springboard" and thus CPA; also the exam was designed that starting from A3 1st emb., a nice psa was possible - the other way round it seemed way more difficult. Anyhow, usually marks are also awarded for different solutions if they are argued well (in case A3 1st emb. turns out to be the expected CPA)


      Delete
    2. lets hope so - Its certainly not unreasonable to start from A3 2nd embodiment as it is very very close to A3 1st embodiment.

      Delete
  20. I somehow disagree that A5 is the CPA for claim 2. A1[14] explains that "hybrid yarn comprising at least "40" thin stainless wires of 25 um is needed (emphasized), to have a ball that produces detectable signals".

    A5 claim 1 discloses that "the outer layer consisting of 15-30 stainless steel wires of 25 um diameter wound around the core"....

    Is'nt that shows incompatibility of using A5 as CPA? What do I miss here?

    ReplyDelete
    Replies
    1. Hard paper. Quite different to what has gone before.

      Delete
    2. Neither claim 2 nor claim 1 are limited to "electrically detectable" - claim 1 only recites "preferably a ball".

      Delete
    3. Claim 1 of A1 only requires 10-20 wires.
      Further claim 1 does not specify the use of the hybrid yarn to produce detectable signals.

      Delete
  21. What does everyone think of A3 2nd embodiment as CPa for C5. It seems like this is possible based on the portable device purpose and many features being in common too

    ReplyDelete
    Replies
    1. I agree. I think it is very credible starting point.

      Delete
    2. I too looked at this alot in the exam. It is definitely a good CPA to start with for C5 using A3 2nd embodiment and I don't see why the EPO should not take it into account.

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    3. I would completely agree. I think this is a very realistic and reasonable CPA document.

      Delete
    4. I started with A3, 2nd embodiment as cpa, but I felt that the problem of longevity and replacing the whole ball by a completely different one made the argumentation a bit awkward.
      Starting from A3, 2nd embodiment made life much easier because you only need to change one feature of the ball which is not inventive for same reasons as for claim 4 and then you have the separate problem of replacing the goal post internal transceivers by mobile ones which is also easy to argue.
      Therefore, I switched around my argumentation and used the first embodiment as cpa.

      Delete
    5. I tend to disagree - the 2nd embodiment was released with a ball having no bladder.

      Product claim 5 relates to the detection system + the ball of claim 4.

      A3 emb. 1 has a detection system and the ball of claim 4, but the system is not portable.

      A3 emb. 2 has a portable detection system and a ball without a bladder.

      So both embodiment had pros/cons, but ultimately A3 emb. 1 is the more promising springboard. The distinguishing feature vs. A3 emb 1 is portable, which allows a nice psa attack, unlike A3 emb2.

      Delete
    6. It seems you can take version 1 of the ball in A3 and use it with second embodiment of A3 (Smart Referee?). I was low on time and just went with it.

      Delete
    7. CDF and SLJ - I started with A3 2nd embodiment as CPA for claim 5 but it was a bit more difficult with arguments however, there are arguments to be given and it is still combinable with A2. I didn't had time to change it in the end but I hope I have some marks for starting C5 CPA with A3 2nd embodiment (enough to pass anyway). I think it is very reasonable to have this as CPA for claim 5 based on the fact that it is a portal detection system.

      Delete
    8. It seems that A3 2nd embodiment is a good alternative for CPA for C5 albeit it seems a bit easier starting from A3 1st embodiment. Hopefully, they won't give zero marks but some decent marks for anyone started from A3 2nd embodiment for C5.

      Delete
    9. For C5 - I did A3 2nd embodiment with A2 and A3 2nd embodiment with A5

      Delete
    10. I think it is also very reasonable to start from A3 2nd embodiment as CPA for C5. I don't think you will be heavily penalised if you do this.

      Delete
    11. I think it is agreed that A3 2nd embodiment can be a valid CPA for C5. Provided with reasons + arguments, the Examiner should definitely take it into account.

      Delete
    12. I also used A3, 2nd embodiment as the cpa. What led me to this conclusion is that the document clearly stated that despite for the fact that the transceivers could be attached to the goal 8and not integrated) the two arrangements were technically identical

      Delete
  22. Thank you for your analysis! For claim 3 I done an A100(c) attack and then an A100(a) attack as well. However I was concerned afterwards that this would result in me gaining no marks for not coming down on one side. Do you know if this has been the case in previous years?

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    Replies
    1. I think having both the A.100(c)+A.100(a) attacks is great -- the 100c attack is a weak attack since it can be easily overcome. Thus the A.100(a) attack is even expected I guess.

      I only did the novelty attacks over A6 and A3 - should have included the A. 100c) attack as well, but thought I would contradict myself.

      Delete
    2. @SLJ How exactly is the A.100(c) attack on claim 3 easily overcome? If it's by amending to incorporate claim 4, then you have your attack for that claim as your attack for amended claim 3. What am I missing?

      Delete
    3. thinking the same. I made a novelty attack and thought that novelty attack is stronger and I shouldn't make both added subject matter and novelty attack at the same time. That's why I only made a novelty attack for claim 3

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    4. @Jjj
      I would say by incorporating claim 4 into claim 3 to return the claim into its originally disclosed form, this immediately removes the A. 123(2) attack.

      I would only look at claim 3 here to judge whether the argument is weak/strong against the specific claim (and not consider any patentability attacks on claim 4)

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    5. @Jjj I keep asking myself the same question. If you can overcome it by incorporation claim 4, so it is not anymore claim 3, it becomes claim 4 and only claim 4 have to be attacked for novelty.

      Delete
    6. @Sarah
      In many old exams an independent claim (say claim 1) had to be attacked with A.54(3) and (2) novelty attacks while dependent claim 2 required an IS attack.

      The A.54(3) attack is weak and could be overcome by, e.g. including dependent claim 2.
      Thus an additional novelty attack against claim 1 was usually required.

      By logical extension, additional attacks would be needed against claim 3 too, since the added matter attack is weak here.

      Delete
    7. The added subject matter is not weak as the only way to overcome it is to add features of claim 4; resulting of actually claim 4 (C3+C4) which is already attacked. There is in my opinion no point to attack Claim 3 except for added subject matter.

      Delete
    8. I'm not convinced by your arguments Sarah - I think it is a weak Art 123(2) attack as it can easily be amended during opposition to overcome the 123(2) objection and hence, they have provided a clear novelty attack document for C3.

      Delete
    9. it is not weak, it is just easy to overcome by adding features of claim 4...which results in combination of features of claim 3 and features of claim 4 which is actially granted claim 4; and thus only claim 4 (including features of claim 3) needs additional attacks...

      Delete
  23. What does "Claim 4(3)" mean?

    ReplyDelete
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    1. Claim 4 depending on claim 3 - I guess

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    2. Was there an alternative dependency for claim 4? I thought it was only dependent on claim 3.

      Delete
  24. Why is claim 4(3) not novel over A6, A6 does not disclose a rubber bladder?

    ReplyDelete
    Replies
    1. I would agree with this! Also no teaching of the wires forming an antenna; given that it was arranged differently, I wasn't sure (as I'm not familiar with the tech) that it would still perform this function. I don't think a novelty objection is clear cut.

      Delete
  25. The novelty of claim 4(3): The stainless steel yarn has two properties, durable + electrically detectable. To be electrically detectable, A1 [0014] we found that a hybrid yarn comprising at least 40 thin stainless steel wires of 25 um diameter is needed to have a ball that produces detectable signals. A6 [008] discloses the stainless steel wires have a diameter 2-25um, note here it is a range, not the exact 25um as in A1. Thus, whether all the diameters in this range guarantee sufficient signal strength to make a traditional football electronically detectable, is not given. Thus, A6 doesnot disclose an electrically detectable ball, it only discloses a traditional football sewn with stainless steel wires which may or may not be electronically detectable.

    A6[0011] apparently uses the property of being durable, as the texts reads "it can be thereby resist beding stresses quite well and is remarkabley durable, such that it can even be used for applications such as stitching gother the panels of traditional football.

    Because stainless steel yarn does not necessarily make a ball electronically detectable, A6 requires an inventive step of skilled person to adjust the parameters, such as the diameters of the wires to achieve a techncial effect : to make the ball electronically detectable.

    ReplyDelete
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    1. exactly Day after Day. I feel that to use A6 for C3 and C4 is really stretching the claim intrepretation. A3 1st embodiment is a clear novelty attack for C3 and there is also clear inventive step for C4. These are strong enough attacks on their own.

      A6 requires too much interpretation and subjective reasoning for novelty attack.

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    2. A6 discloses in [12](while referring to Fig.1) that the wires have a diameter of "exactly" 25um (no range)

      Delete
    3. I think A6 discloses an electrically detectable ball, though in a convoluted manner:

      A6 discloses a yarn that meets the definition of the A1[18], last two sentences.

      The last sentence of A1[18] makes clear that this makes the ball electrically detectable.

      NB: no contradiction to A1[14] -- A6 discloses 90 stainless steel wires with 25 um. 25um is explicitly mentioned and disclosed in A6. One novelty destroying embodiment suffices; it doesn't matter if the other embodiments with 2 up to, but not including, 25 um are not novelty destroying.

      Delete
    4. Yes. A6 also discloses a diameter of exact 25um. However, it is not an disclosure of the precise combination of 25 um + >40 + a football, it is a disclosure of stainless yarn (of all possible parameters in A6) + a football. In GL, the disclosure of two lists, does not necessarily means the disclosure of the combination of two specific features selected from the two lists, because the combination or the selection requires inventive step to reach a technical effect. Skilled person does not involve inventive step.
      And in the case of Claim 4(3), skilled person really needs to make some inventive efforts to make the ball electronically detectable.

      Delete
  26. Also, it was annoying that the A2 and A3 used page and line versus paragraph numbering. I wish they would just use paragraph number for all references (I understand that the real world is not like that, but for the EQE at least, it would make things easy).

    ReplyDelete
    Replies
    1. You're sooo right, it took a lot of extra time to always check page numbers and lines for making a precise reference. I don't understand why they did not just just use paragraphs throughout every prior art doc...

      Delete
  27. Anyone know how Part I and part II will be split? It seems last year (2021), there were more points available in P2, but there were also more attacks. This year, P1 has two claims, and P2 has more than that (with more attacks too). But the difficulty of attacks in P1 was high (in my opinion). I imagine people do better on P2 as they settle in more, but who knows.

    ReplyDelete
    Replies
    1. C1 was very difficult so I should think they will take that into account.
      C2 was very long so should attract quite a bit of marks.

      C3 - too many attacks. I don't think its realistic to expect 2 novelty attacks + ASM in the time-frame. I hope you would get full novelty marks if you had one or the other.

      C4 - IS - same here. hoping it attract decent marks

      C5 - IS - partial problems but there are some debate about whether A3 1st embodiment or A3 2nd embodiment is CPA - Both seem equally valid starting points

      C6 - IS based on C5 so expecting the least marks here.

      Delete
    2. For C3, I'd like to point out that it is by no means sure that three attacks are expected. It would be a first in paper C if an attack is expected in addition to the 123(2). I can see reasons why they might expect it this exam, but that doesn't mean that they will.

      Anyway, the additional attacks needed to be available to make it possible to attack the dependent claims. If you attacked those dependent claims, you will have used most of the arguments that are needed for the additional C3 attacks. I doubt that many (if any) marks are lost by doing 123(2) only.

      Delete
    3. By way of your logic Joeri - if you used A5+A4 for claim 2, then we should also expect some marks recuperated also for claim 1 (if they indeed want A5 novelty or A5 + A4 IS for claim 1).

      Delete
    4. I also think 3 attacks on C3 is too much - most candidates would have definitely ran out of time. A strong novelty attack on C3 using A2 1st embodiment OR A6 should pick up all the marks for novelty + Art 123(2) attack.

      Delete
    5. correct - I meant A3 1st embodiment
      Bani

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    6. Hmmm, I did not catch any unallowable amendment. The letter from the client specified that "The subject matter of claim 3 as originally filed was split into claims 3 and 4 as granted". How can this represent added subject matter when claim 3 was present in the application as filed?

      Delete
    7. @Bani: C2/C1 is a slightly different situation. They have subject-matter in common and you use A5 for both, but C2 is an independent claim. Also, the core part of the C1 attack is the product-by-process feature. Those arguments are not used for C2.

      Personally, I would want to award some marks for arguing specific C1 features that are not really part of the expected C2 attack (e.g. regarding the suitability for high stress and ball games or the number of metal wires). But I don't know what the exam committee will do.

      C3/C4 is different. You cannot attack C4 without first attacking all features of C3.

      Delete
    8. I would still expect some marks for C1 features if you use A5 for novelty analysis when discussing CPA and show the disclosed features of C2/C1. You may not get marks for argumentations but novelty analysis of features - I don't see why you can't get them for C1 if it is analysed in C2 (as dependent on C1). Maybe not all the marks but certainly some marks clawed back for C1 would be justifiable and there is precedent as Examiners have done this in the past - it is written in their examiners comments.

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    9. I think it would be highly unusual for there to be marks for any attacks on C3 other than A123(2) - I've not seen any previous Paper C in which an added-matter attack was to be backed up by an additional attack. In fact, if added-matter attack is successful, C3 does not have an effective date. As such, I would expect any novelty attack to not attract any marks, and be seen in the same way as a novelty attack which is then backed up by a IS attack using the same document.

      Delete
    10. A123(2) is a very weak attack on C3. The essential feature is already disclosed in the AAF and it can easily be inserted into C3 during opposition. C4 can be combined with C3 again. Therefore, you will probably need another attack - like novelty attack on C3. I would expect more marks for novelty than A123 attack.

      Delete
  28. Can someone confirm for me that if I have a 63 on A, 50 on B, and a 62 on D (from 2021), that all I need for this paper C (2022) is a 45 to pass the EQE? I think the answer is yes because 200 total is required, but I can't confirm that easily.

    ReplyDelete
    Replies
    1. Yes that is my understanding. 45 would be a compensable fail and you have passed rest three papers already, all you need is 45

      Delete
    2. Thank you!

      Delete
  29. Do you think the Examiner would consider A3 second embodiment + A2 as a valid attack for claim 5. Based on the reasoning that A3 second embodiment is CPA because it is the only document that relates to portal system.

    Is it a valid reason for them to consider this combination.

    ReplyDelete
    Replies
    1. In my view. Absolutely yes. It is a good reason for selecting CPA and should be taken into account. You might not get all the available marks but this certainly seems like a valid reason for CPA selection.

      Delete
    2. I would agree wirh JD here. They do take into account other combinations and this one does seems like a good valid reason.

      Delete
    3. As I've shortly explained somewhere above, an attack from A3-2 may not be impossible. Objectively, it may even be a closer prior art than A3-1. But the A3-2 attack becomes less straightforward after that. The two partial problems are not as independent as when starting from A3-1.

      The problem with the detection system of A3-2 (doesn't work long enough) is not really solved by the ball of A3-1 that has the same problem. It may not be impossible to argue your way out of that with the help of A2, but it appears less convincing than when you start from A3-1.

      Starting from A3-1, there is 1) a problem with the strength of the yarn and 2) a problem with the portability of the system. Two nice independent problems that can be solved in any order you like.

      Delete
    4. I would expect a reasonable portion of marks to be awarded (probably not full marks) if you start from A3-2 as CPA for C5 (provided with reasons off course). I don't think it would be fair to award 0 marks if your CPA for claim 5 is A3-2.

      Delete
    5. For A3 2nd embodiment with A2 - this solves the first problem of strength of yarn - I would say it is reasonable and valid.

      It becomes a bit more difficult with a second problem but I would suspect you will still get marks for the first problem.

      Delete
    6. It does seem perfectly reasonable to have A3 2nd embodiment as your CPA in combination with A2 for claim 5. I really like the "portal system" argument as a reason for selecting this as CPA. Indeed, claim 5 does appear to suggest that this is the main purpose of the claim. They will probably take this into account.

      Delete
    7. Yes but how do you use partial problems then ? You need A2 and A3(1st) to be combined with A3(2nd) ? Starting from A3(2nd) I could not develop a proper partial problems approach

      Delete
    8. I did
      C5 - A3 (2nd embodiment) + A2 - CPA reason is portable system. The other non-disclosed feature is the rubber bladder. A5 discloses the rubber bladder material so I did A3 (2nd embodiment) + A5.

      There is a piece in A2 somewhere that mentions materials can incorporate synthetic made material so it does seem relatively reasonable to use A3 (2nd embodiment) + A5.

      Delete
    9. @JS - I've looked at the paper again and I think it is possible to do the combinations for C5 albeit a little more extra work required. Does seem possible with these attack.

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  30. Yep. A3 2nd embodiment is a credible starting point for C5. It's been discussed quite extensively here. I also looked at this too and seriously considered it so I suspect some marks will be awarded for this.

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    Replies
    1. This does indeed seems a very plausible argument. Both embodiments of A3 can be used to combine with A2 for C5 so it will probably be taken into account.

      What's a bit tricky is the second missing feature - which seems a bit harder but if arguments are provided, hopefully some marks are awarded here.

      But in terms of CPA - i agree that A3 2nd embodiment is a suitable CPA for claim 5.

      Delete
    2. In my mind - A3 2nd embodiment with A2 would work well for claim 5. It is certainly a reasonable combination to have and therefore, likely to attract alot of the available marks.

      Delete
    3. agree with folks here. A3 2nd embodiment as CPA in combination with A2 for claim 5 doesn't seem unreasonable at all. It is probably the better CPA in the sense that it is the only document that has the purpose of a portable device.

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    4. I still think that the A3(1st) + A3 (2nd) + A2 combination is a much better IS attack, but I would also expect there to be a reasonable portion of marks available for a good attack starting from A3 (2nd)

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    5. @123 - maybe you are correct but I don't think starting from A3 2nd embodiment + A2 and then with A5 is unreasonable either, as the reasons given here do seem to work. I agree with you that I would expect a reasonable amount of marks for this alternative attack.

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    6. My view is that it is highly likely and credible that A3 2nd embodiment would be considered as CPA for C5. The combination of this especially with A2 and A5 could work so marks should be awarded.

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  31. Just a question. People, including tutors, are saying that A6 (which is an Art 54(3) document, so usable against novelty only) discloses all the features of claim 4, which relates to a ball. It is true that the yarn of A6 can be used in a ball (see [0011 of A6]). But in my interpretation, it is only a use of the yarn of A6 that is disclosed. I mean, in my everyday work, when I draft claim on a chemical composition, I have for example 13 claims related to the chemical composition as such, 1 claim related to a process for manufacturing said chemical composition, and 1 claim (or more) for one (or more) use, such as "use of the chemical composition according to any of claims 1 to 13 for a paint". Then I can have a second use claims, drafted as "Use of the chemical composition according to any of claims 1 to 13 for a cosmetic blend". In any case, in my opinion, I describe the paint or the cosmetic blend in my patent application. I mean, the paint or the cosmetic blend can have and have other components than those of the chemical composition I have described and claimed in any of the claims 1-13. Only that is described. So similarly, in A6, the yarn is described, and possible use of the yarn are described, such as use for a ball or in bike tire. But the ball or the bike tire are not described in A6. In the exam, I only use A6 for the definition given in its [0006] to help the interpretation of other documents.

    ReplyDelete
    Replies
    1. sorry, I wanted to say "In any case, in my opinion, I DO NOT describe the paint or the cosmetic blend in my patent application".

      Delete
    2. Same here. I did not see a novelty attack based on A6 as actually no ball was directly disclosed, but only the suitability of the yarn to sew a ball. Maybe I am wrong, but I did the same reasoning. As the situation was not always so apparent, I hope the committee will show some extent of flexibility.

      Delete
    3. I dont see A6 as Art 54(3) against claim 3 or 4 either. There is alot of claim extrapolation required and I think there are more straight forward attacks like A3 1st embodiment Art 54(2) EPC for claim 3 and A3 1st embodiment with A2 for claim 4.

      Delete
    4. Same. I have used A6 only for the definition of the term "thin metal wire".

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    5. A6 said something like "the hybrid yarn may be used to sow together the segments of a traditional football".
      Saying that this does not disclose a traditional football sewn with the hybrid is really a pointless play on words.
      Use of a composition X for a paint also discloses a paint comprising X.
      in real-life this is of course not of too much relevance because such a use claim is typically totally generic wherein a claim to a product would usually define more than just "paint including X".
      In the exam however, the information in A6 is short but not fully generic, so its enough to make a novelty attack based on explaining the term "traditional football" and the implicit presence of a "detectable" antenna.

      Delete
  32. A123(2) attacks are usually the strongest and it has never in the past papers C been required to supplement it with an additional novelty/IS attack. Hence, I believe it would be unreasonable not to gain full marks based on the A123(2) attack.

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    1. I honestly don't understand why it would be seen as a "weak" attack, as the only solution would be to combine C4+C3 and this combination is already attacked after.

      Delete
    2. In all Paper C that have gone by, they normally give you a hint for A123(2) attacks. I don't know why they haven't done it this year.

      But - you can still do Novelty attacks for C3 so that should knock it out anyhow.

      Delete
    3. A hint was given also this year. The claim was split into two during examination and claim dependencies were changed.

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    4. either way - it wasn't that obvious this year. A123(2) attacks are normally quite clear. Having said that, there are other attacks available for the same claim so not all is lost.

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    5. I thought the A123(2) attack was hinted at very strongly. Original claim 3 was split into granted claims 3 and 4 -> is there basis for granted claim 3, without the features of granted claim 4? Clearly not. As such, it is as strong a 123(2) attack as any other I've previously seen in Paper C.

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    6. @123 I totally agree with you!

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    7. I fail to see it being a strong A123(2) attack. It is a very weak attack. The proprietor can easily amend the granted claims to combine them again. So, it definitely needed another strong attack.

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    8. Sure he can combine them, which will result in claim 4 and that's why only claim 4 needs additional attacks.

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    9. The aim of the game is to knock out the claims. The weak A123(2) or novelty attacks on C3 should do the trick and therefore, I don't see a problem in these attacks. Both should attract marks as they are reasonable attacks to make.

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    10. I agree with Anon 14.44 - you need to knock it out and if there are valid attacks then this should be awarded marks. Its clear that A2 1st embodiment can do this with Art 54(2) so marks should be awarded. Equally, Art123(2) would also work. All you need to say is that in the event the Proprietor amends during Opposition, novelty attack is also possible and there is no contradiction - but I doubt you need to put this in anyway.

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    11. I do not understand the idea that it is a weak 123(2) attack - it is very strong as a clearly essential feature was deleted. I think it is beyond the scope of the exam to start guessing how the patentee might amend based on the description - clearly they would have to put claim 4 back into claim 3, and we have an attack for that...

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    12. @Anonymous18 March 2022 at 15:26
      I agree, 123(2) attack is very strong!

      Delete
  33. What if one makes two different attacks for a claim, and one of the two is the correct one? Will any points be deducted for the second wrong attack?

    I attacked claim 5 based on A3 + A2 and then I wrote an alternative attack for the same claim based on A3 + A5. Would that cost me any marks?

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    1. did you do A3 2nd embodiment + A2.

      i also did this. A3 2nd embodiment + A2
      and then A3 2nd embodiment + A5.

      I think you would obtain sufficient marks especially for A3 (2nd embodiment or 1st embodiment) + A2. Who knows but it is clear Examiners will take alternative solutions into account and it seems that A3 2nd embodiment + A2 for C5 is a very valid one - as discussed very extensively already here on the blog.

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    2. I suspect you will certainly pick up most of the marks for the first problem A3 + A2.
      A3 (from second embodiment) + A5 seems ok too as A5 discloses the rubber bladder material. May lose a few marks but I think it is a good alternative for consideration.

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  34. A6 just mentions in [0011] "...such that it can even be used.."
    A6 does not show unambigously and directly an Electronically detectable ball which is required for Novelty attack (T511/92)

    I also dont see A6 as Art 54(3) against claim 3 or 4.

    I guess A6 was there to be used as source for information (e.g. "thin" < 100µm)
    and maybe as a trap, to misdirect A6 for use incorrectly as IS document

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    Replies
    1. I agree - I don't see A6 being reasonably used without extensive interpretation against claims 3 and 4, which should not be the case for paper C.

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    2. But A6[11] continues: "The yarn forms a long-life structural
      component of the ball's outer covering." As such, a ball having an outer covering with the yarn forming a structural component of the outer covering. From context, the ball is a traditional football. A1 makes clear that the number and size of SS wires is sufficient to create an electronically detectable ball => A6 discloses all features of C4.

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    3. But A6 does not disclose that the ball comprises a rubber bladder as required by A1, claim 4, and as A3 teaches in 2nd embodiment that not all balls have rubber bladders, this feature is not disclosed in A6 in my opinion.

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    4. The 2nd bladderless ball in A3 has a SEAMLESS casing,
      but I agree, the feature "rubber" is missing.
      "bladder" might be implicitly given, but I do not find the source that all "bladders" are made out of "rubber"
      A3, page 2, Line 4 refers only to a "bladder" in classical constructions.
      Thus, in my opinion, A6 does not disclose all features as required by cl.4 or cl.3... Exciting to see the Examiners Report on this ;-)

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