DeltaPatents EQE Paper C

The answers according to the exam committee

2011-08-09T10:05:00.006+02:00

As usual, a few days after the publication of the results, also the Examiner's report is downloadable from the EPO website. In the Examiner's report, you can find the correct answers and argumentation to the questions of the exam.
I am pleased to see that our provisional answers as we provided them in March are exactly the same as expected by the exam committee. Thanks to the candidates who provided us with the exam paper and helped us finding the right answers back then.

In addition, the exam committee gives some indication of the alternative answers that have been given by many of the candidates. Unfortunately, the report is not very clear about whether any marks have been awarded for these alternative answers. And if so, how many. For example, they say:

Attacks on claim 8 starting from Annex 6 are weaker than the expected one, since they require the combination of three documents.

Does that mean that you could still get some marks for an attack starting from Annex 6? I don't know, but I will surely ask the committee in October when we have the pleasure to meet the committee members in person to discuss last years exam.

The results are in!

2011-08-04T12:45:00.005+02:00

Today, the EQE preparation season officially started again. The results of the EQE 2011 have been published on the EPO website. I'd like to congratulate the 190 first time sitters (38.78%) who were so successful that they are now entitled to put the words 'European Patent Attorney' in their e-mail signature. Many other candidates also passed one or more papers and are therefore also coming closer to this coveted title.

Looking at the statistics, I can see that the difficulty level of the C paper of 2011, as expected, was comparable to that of last year. In 2010, 39% of all candidates passed the C paper and 11% scored a compensable fail. For this year, the respective percentages were 37% and 10%. It is to be noted that first time sitters score significantly higher marks than resitters. 51% of all first time sitters scored more than half of the available marks. 11% scored between 45 and 49.

The D paper of 2011 has turned out to be a very difficult one. The pass rate for all candidates (50 marks or more) dropped from 43% in 2010 to only 30% in 2011.

For everyone who, unfortunately, did not pass this year's C exam, we do of course have some nice methodology courses and exam training. This year also in some very interesting European cities like Rome, Warsaw and Istanbul. Visit our website for more information about these and other courses.

EQE C 2011: a solution

2011-03-04T15:32:00.016+01:00

Ok. This is my solution. Please note that this is just my provisional opinion. I didn't write down any of the attacks, but just went through the annexes to find features and arguments. All the notes I made are in the margins of the exam paper.

If you don't agree with me, please let me know. If you use the comment option of this blog, please choose some identity. It is difficult to discuss with multiple persons having the name Anonymous simultaneously. Of course, you can also send me an e-mail if you don't want to talk about this in public.

Again: This is just a solution provided by some tutor who thinks that he doesn't need to use six hours and empty paper to make the exam. The real solution will not be available until the compendium comes out (August 2011). You can still pass this exam if you do not have the same attacks and you can also fail having the same attacks.

Claim 1:	A6+A2
Claim 2(1):	A6+A2+A3
Claim 3:	~~Nov.A5(54(3))~~, Nov.A6
Claim 4:	Nov.A5(54(3)), Nov.A6
Claim 5(4):	A6+A4
Claim 6(5), 2gr:	Art.123(2), (A6+A4)
Claim 6(5), 4gr:	A6+A4
Claim 7(4):	Nov.A5(54(3)), Nov.A6
Claim 8:	~~A3+A4~~ A4+A3

EQE C 2011: reading the claims

2011-03-04T11:27:00.004+01:00

At DeltaPatents, we always advise our candidates to start the C paper with reading the claims carefully. Of course that's also the first thing I did after printing the paper.

My first observations:

8 claims = a lot of attacks
Many strange words, that are probably explained in the description and/or other annexes. Fin, corrugated, flux, brazing, manganese.
Claim 1: What kind of protrusions? What function? What length is desired? Such features are often attackable using prior art features that are quite different from the preferred embodiments that you find in the description and figures of A1.
Claim 2: Nothing special.
Claim 3: Product by process. The attack on claim 1 will work again (if there are no priority problems). Probably, an additional attack will be expected. I am expecting to find a different manufacturing process in the prior art (known or obvious) leading to the same product (no technical difference).
Claim 4: Product by process again. The process step clearly has a technical effect. The claimed product comprises a joint, brazing alloy and flux (but I still have no idea how and why).
Entirely different claim category. Probably a different closest prior art document.
Claim 5: Sort of product by process ('pre-coated')
Claim 6: Strange claim. Not a range is claimed, but two single points. I just hope not to find a prior art embodiment having 3 g/m² of zinc.
Why do they use the word 'provides' and not 'comprises'?
Claim 7: Why would the heat exchanger of claim 4 not be suitable for use with these fluids? I expect an easy attack.
Claim 8: Different claim category again. I expect some prior art that has nothing to do with heat exchangers.
When does a tube have a planar surface? And for what reason?

Ok. That's a lot of questions and remarks for now. I will now start reading the client's letter and the description of A1. I am not going to give away my full analysis of the paper in this blog, but in the coming weeks some interesting topics will certainly be discussed here.

The day after

2011-03-04T08:31:00.003+01:00

It's almost 24 hours after the start of the exam. Most of the candidates will be exhausted and probably took a day off to get some rest. For those candidates that cannot resist the temptation to search for 'the' solution to the C paper, I have one question: Could any candidate please send me the paper?

Update: I received a copy via mail. Thanks!

Examiner's Report

2010-08-17T16:13:00.004+02:00

And finally, the Examiner's Report is published. Because I'm not longer in the luxurious position to have my answers corrected and marked by the Exam Committee, this is my first chance of checking how good (or bad) my own answers were.

First thing to look at (of course): Did I perform the correct attacks? To my relief, it turns out that I agree with the committee on most attacks. Only for claim 4 (plastics), I had chosen (and would probably still choose) something different.

The exam committee is of the opinion that merely stating that in a certain range an effect is attained to a (not further specified) greater extent than (at an unspecified distance) outside the range is sufficient for being novel, even if the prior art disclosing a broader range also tells you that the effect is attained to a greater extent. They might be correct, but I am very curious what a Board of Appeal would decide in such a situation. I would expect that more evidence, e.g. in the form of concrete values, would be needed for having a selection invention.

That this range was a difficult issue, was of course already known by the regular visitors of this website. The issue was already discussed extensively on this website in the weeks following the exam. Click here for the full discussion. Congratulations to the anonymous poster who bravely defended the exact opinion of the Exam Committee. I hope he or she passed this exam.

Second thing to look at: How did the candidates do? I was surprised by the lack of cynical remarks about 'stupid' candidates. There are also not many remarks about popular attacks that were not worth many marks. It is however clear that selecting the correct closest prior art is still one of the most important things to do, if you want to pass Paper C.

Interesting: Only 5 marks for legal issues.

The results are in!

2010-08-10T12:09:00.010+02:00

As most candidates will already know, the EPO has changed its way of communicating the results of the EQE. Instead of a secure website where every candidate can find his own results after entering a password, they decided to make all results public. On the EPO-website you can find all results of all EQE candidates of 2010. Click here for all results.

And of course, we are exploiting this opportunity to do some statistical analysis. The first results for the C paper:

1490 candidates handed in an answer and scored 1 mark or more

735 candidates (49.3%) scored below 45

167 candidates (11.2%) scored between 45 and 49

588 candidates (39.5%) scored 50 or more. Congratulations to them!

The average number of marks was 45.

(statistics updated on August 4, 2011)

Ranges and purposive selection

2010-04-06T11:02:00.017+02:00

Amongst candidates for the EQE C paper of 2010 a lot of discusion is going on about how to attack the ranges in claims 4 and 5. Is it possible to do a novelty attack or do we need inventive step (workshop modification, equivalent alternative or maybe a second document). Today I will give you some advice about how to deal with ranges in the exam (in your daily patent work, you should do the same).

The situation in the exam was as follows:
- Claim 4: 1 mm - 3 mm
- Claim 5(4): less than 1.8 mm (thus 1 mm - 1.8 mm)
- A3: 0.1 mm - 20 mm, 0.5 mm - 2.5 mm and 1.5 mm - 2 mm
- A4: 0.1 mm - 20 mm
- A6: 0.1 mm - 4 mm, 0.9 mm - 4 mm and 0.1 (and/or 0.9) mm - 2 mm

The relevant part of the Guidelines is GL C-IV 9.8 (ii) which gives three criteria for considering a sub-range selected from a broader numerical range to be novel. A selected sub-range is only novel when it is:
(a) narrow with respect to the known range and
(b) far removed from specifically disclosed examples in and the end points of the known range and
(c) not an arbitrary specimen of the prior art, but another invention (purposive selection, new technical teaching)

The first two criteria are not very clear and are usually only used for additional arguments. When a sub-range provides a new technical teaching, it is also considered narrow and far removed. When there is no new technical effect, the sub-range is too broad and too close. In the exam situation, we thus have to find out whether the claimed ranges provide a previously unknown technical effect.

There is only one way of finding the answer to that question. You have to look into Annex 1 to find the technical effect of the claimed range and you have to read all documents for finding the technical effect of the already known range. The effect of the broader range is not necessarily disclosed in the prior art with this range. It may, e.g., also be described in Annex 1. When you compare these two effects, you know whether the claimed range is another invention or not.

In Annex 1, we find the following:
- [0012]: 1 mm - 3 mm => can be expelled over a greater distance
- [0013]: 1 mm - 1.8 mm => no liquid can percolate through the housing

In the prior art, we find the following:
- Annex 3, [0008]: 0.5 mm - 2.5 mm => the distance reached by the spray is maximized
- Annex 3, [0009]: less than 2.0 mm => impervious to liquids
- Annex 4, [0004]: 0.1 mm - 20 mm => dispensed over a greater distance
- Annex 6, [0005]: 0.9 mm - 4 mm => optimum diffusion (at same pressure as used in Annex 1)
- Annex 6, [0006]: more than 2.0 mm => permeable for liquids
- Annex 6, [0006]: more than 4.0 mm => too much diffusion, poor quality aerosol

When using A4 or A6 for an attack, [0004] of Annex 4 can be used for proving that over the whole range of 0.1 mm - 20 mm, the same effect is obtained as in the sub-range (1-3) claimed in Annex 1. The range claimed in claim 4 does not have a new technical effect or, at least, the inventor did not know about it. The claimed range is not a purposive selection and thus not novel in view of the ranges disclosed by A4 (0.1-20) or A6 (0.1-4).

Similar argumentation can be used for proving that the range in claim 5 is not novel. Here the proof is even provided by two documents, i.e. Annex 3, [0009] and Annex 6 [0006].

Note 1: This posting is only about novelty of claimed sub-ranges and not about novelty or inventiveness of complete claims. The analysis provided above is only part of the analysis you have to make to score full marks for the corresponding attacks.
Note 2: This is just an opinion of a tutor who tried to find and solve the important puzzles in the C exam of 2010. The award winning solution will not be known until it is published by the exam committee.

EQE 2010: claim 1, 54(2)

2010-03-29T09:40:00.008+02:00

With the new DeltaPatents website online we can start working at the content again. As promised, I will say something about the 54(2) attack on claim 1 of last month's EQE exam.

A 54(2) attack may either use novelty or inventive step. Before selecting a closest prior art or novelty destroying embodiment we first determine the claimed object, i.e. a liquid dispenser with a gaseous propellant. Then we try to find this object in the available 54(2) documents (A2, A3, A5). A2 is about a gas dispenser (first line of [0001]), A3 uses an aluminium bottle (first line of [0001]) and in A5 the trapping material is not coated on the wall ([0005] in combination with item 56 in the figure). It is clear that we cannot do a novelty attack and have to select a closest prior art.

A2 is not suitable as closest prior art, because it does not have the claimed object. The apparatus dispenses gas instead of liquid. That's not the type of apparatus the skilled person wants to improve. Starting from A3, the skilled person would have to replace the aluminium bottle by a plastic one. Usually, the exam committee is of the opinion that such a change of material for the main object would require so much effort that the skilled person would not start from such a prior art. Additionally, A3 misses the use of a dip tube and might thus not be the ideal starting point for an inventive step attack. A5 discloses a liquid dispenser and only misses the fact that the trapping material is coated on the wall. A5 clearly is the closest prior art.

Now we know the closest prior art and the missing feature, we have to formulate an objective technical problem. For that we use Annex 1. Annex 1 describes the advantageous effect of the missing feature in [0008]. The coating avoids clogging of the dip tube.

We know that the missing feature must be in A2 or A3. In those documents, we start looking for the feature and for the missing effect. A2, [0003] describes gas-permeable porous material 25 which functions as a trapping material and 'must adhere to the inside of the wall of the can in order to avoid clogging of the inlet by loose parts of it'. Of course A3 does not have anything useful and the attack will thus be A5+A2.

With this information we should be able to complete our inventive step attack. We already have the missing feature and an incentive to combine. Still missing are an argument for reading A2 (neighbouring field and use of trapping material), a description of the combination that the skilled person would actually make and an optional discussion on compatibility. With respect to the latter issue, it might be required to say something about the compatibility of the coating with the plastic container of A5, because there is some interesting information about that in [0004] of A2.

EQE C 2010: claim 1, 54(3)

2010-03-22T10:39:00.008+01:00

Claim 1 claims a liquid dispenser with a gaseous propellant. For finding all required attacks on this claim we first have to find out what documents we are allowed to use. After determining the effective date of claim 1 (filing date LU1) and looking at the relevant dates of the Annexes, we know that there are two 54(3) documents, A4 and A6, and three 54(2) documents.

First we try to find all 54(3) attacks by looking for claim features not disclosed in A4 or A6. For A6 the situation is pretty clear. A6 only discloses a valve and not a dispenser. We can (for now) disregard this document.

A4 seems to come pretty close to the claim. Most claim features are clearly disclosed in A4. You may however have experienced some problems with finding the trapping material in A4. A4 does not disclose such material for the same purpose. However in [0005] some interesting information is provided. There is some foam-like material sticking to the inside wall and some propellant in its liquid or gaseous phase is temporarily incorporated in this foam-like material.

Although this foam-like material is not applied to the wall intentionally for the purpose described in A1, it falls within the literal meaning of the claim wording. Material sticking to a wall is a coating. Temporarily incorporated propellant is releasably trapped.

We should thus write down a prior right novelty attack using A4. Usually, such an attack is not sufficient for destroying a claim in the exam. Especially under the still applicable overlapping-states regime (EPC 1973), such an attack may not work for all designated states. Therefore an additional 54(2) attack is to be expected. You will find more information about that attack in our next posting.

Update 31/3/10: As one of our visitors correctly pointed out, Art.54(4) EPC 1973 is not applicable to Annex 1. See the comments below for more information on this topic.

EQE 2010 - First impressions

2010-03-16T12:50:00.005+01:00

The work is done. Now we only have to wait a few months for the results. Of course, also the DeltaPatents tutors have tried to come up with a complete and correct solution to this year's C paper. Starting from today we will, on a regular basis (twice a week) give some of our thoughts and opinions about some important aspects of this exam.

You are free to discuss our opinions in the comments or to contact us with specific viewpoints or questions via e-mail.

Today my first impressions of the C paper of 2010:

Claims 1 to 3 can be attacked in a relatively straightforward manner. The 54(3) attack on claim 1 may be easy to miss, but the inventive step attacks follow normal problem-solution patterns. It is however important that you know how to deal with partial problem situations
Claims 4 to 6 are more tricky. The exam committee played a lot with effective dates and prior rights. However, when you use a structured approach for determining effective dates and the usability of annexes, finding the right attacks is certainly possible.
Another important issue for claims 4 and 5 is the use of ranges. Different prior art documents describe different ranges. Many prior art ranges are, at least partially, overlapping the claimed ranges. It may be difficult to decide how to attack the ranges in the claims. Novelty? Inventive step?

The front page of Annex 1

2010-02-22T16:09:00.004+01:00

The front page may reveal interesting information:

the proprietor: is there another annex of the same proprietor, be extra alert for 'first application' issues
priority country: WTO state and Annex 1 is a Euro-PCT, check the transitional provisions
priority claimed from a US continuation: invalid, it can never be the first application;
from a US continuation in part - only valid for the later added matter
warning that claims have been added after filing (it must thus be under EPC2000): all claims must be examined also for added subject-matter
a B1 publication: if the client indicates that a central limitation has taken place (and what) be aware that you must attack the limited claims and not the claims of the B1 publication

EQE 2010 - possible topic

2010-02-22T14:51:00.004+01:00

The last couple of years added subject-matter has not been tested in a complex situation; the issue of disclaimers has also not been in the C exam following G1/03 and G2/03. Combining those two can lead to interesting issues in the exam. For example, the client may be upset that the proprietor introduced a disclaimer during examination. Your first assessment of Annex 1 may reveal that the disclaimere was introduced to restore novelty over an Art.54(3) prior right (e.g. Annex 3). So, it looks like this is an allowable disclaimer. Later you may discover that a normal Art.54(2) disclosure, e.g. Annex 4, which is not an accidental disclosure, already discloses the disclaimed subject-matter. The disclaimer is thus not allowable and vioates Art.100(c) (in view of Art.123(2)).

Any other interesting topics?