Wednesday, July 18, 2012 2012, a difficult year

According to the results as published by the EPO, the pass rate for the C exam was a little lower than in the previous two years. Of 1410 candidates scoring more than 0 marks, only 33.12% passed the exam, and 11.13% scored a compensable fail.

No examiner's report has been published yet. At this moment, we can only guess what problems lead to this disappointing result.

Monday, March 12, 2012 About the five six options for attacking claim 3

Claim 3(1) claims a patch for alleviating pain. Annex 4 (Analgesic dressing) clearly is the most promising starting point for an obviousness attack. It discloses the most similar function and has almost all features in common with the claimed patch. The only feature missing, an adhesive layer, is useful but unimportant for the overall function of the claimed patch. Until here, most candidates seem to agree.

Annex 1 discloses two types of adhesive layers, internal and external ones. The internal adhesive layer is for structural integrity. The external one is for sticking the patch to the skin. Claim 3(1) does not specify any type of adhesive layer. For successfully attacking the claim, it is sufficient to argue that just one of the possible types of adhesive layers is obvious.

For deciding what attack to perform, we now have to look for 54(2) documents lying in a technical field that is relevant for the objective technical problem. For improving structural integrity and skin attachment, the relevant field is skin patches. Unfortunately, all prior art documents (A2, A3, A5, A6) are about skin patches and could be relevant sources of information for the skilled person. Although I would already have a slight preference for A2 because it also deals with covering wounds, the missing effects are equally relevant for cosmetic or deodorizing patches.

Therefore, we have to go through all four 54(2) documents to find the missing feature and the missing effect. The result of this search is as follows:
A2: external adhesive layer (flaps) + to attach to the skin
A3: external adhesive layer (flaps) + to attach to the skin
A3: internal adhesive layer + attach depot layer to fabric carrier
A5: internal adhesive layer + tendency of the layers to separate is reduced
A6: external adhesive layer + to attach to the skin
A6: internal adhesive layer + laminated carrier structure does not fall apart

It looks like there are five six different ways of applying the problem-solution approach to attack the claim. All documents are, more or less, in a relevant field. All documents disclose the missing feature and related effects. Only for the internal adhesive layer of A3 it is not so clear that it solves the problems with the structural integrity.

For the internal adhesive layer, it might not be entirely clear whether the closest prior art actually has a problem to be solved. If no other options would have been available, I would not have had huge problems with accepting such attacks to be the expected ones. However, since we have better options, I'd like to focus on the external adhesive layer that is found in A2, A3 and A6.

Now we have to check what will happen when the skilled person would actually try to combine the features from the different documents with the closest prior art embodiment. And that is where the hydrogel layer comes into play. Any solution to be implemented should be compatible with the hydrogel layer. A skilled person would see the highest chances of success, if the prior art tells him that the adhesive layer can be combined with a hydrogel layer. A2 has such a hydrogel layer which, in my opinion, is a second argument for considering the A4+A2-attack to be a very good choice. However, also A6 [0010] mentions combining the external adhesive layer with a hydrogel layer.

The interesting question is now what the exam committee wanted you to do. Which attack do they prefer? Why? Do they expect multiple attacks? Are there points awarded for ‘incorrect’ attacks?
I do, e.g., see no good reason why adding the sticky flaps of A3 would not be possible and I would like to give almost full marks for A4+A3 (external adhesive) or A4+A6 (external adhesive).

UPDATE: Minor amendments made after reading the first comment. Further option added later.

Friday, March 09, 2012 My solution

Claim 1: Nov A3, Nov A5
Claim 2: A2 (wound healing, storage layer) + A6 (textile) = alternative, flexible and mechanically stable
Claim 3: A4 (analgesic) + A2 (adhesive) = attach to the skin
Claim 4: A3 (anti-wrinkle) + A4 (hydrogel) = enhanced wrinkle reduction (improve transport, hydrophilic bridge)
Claim 5: Nov A3 (masks unpleasant odours, thus suitable), Nov A5 (implicit disclosure of textile with perfume)
Claim 6: Inv A4 (suitable, see claim 4, gelatine is an alternative to starch)
Claim 7: A6 (manufacturing process, all layers) + A5 (curing) = avoid separation of layers

Of course, the inventive step attacks on claims 2 and 3 also take away the inventive step of claim 1. I would make a remark about that, but would not provide them as separate attacks.

Ok. Let the discussion start.

I had some doubts about the A5 novelty attack on claim 1, but decided to do it because A1 discloses more or less the same embodiment in [005].
I also had a problem with A5 and claim 5. A5 does not explicitly disclose a textile layer with a perfume, but it discloses that the outermost polymeric layer prevents the liquid perfume from leaking. In order to leak, the perfume must first traverse the textile layer. That could be interpreted as an implicit disclosure of a textile comprising perfume, which leads to an additional novelty attack.

Claim 3 was very interesting. Also all other documents (A3, A5 and A6) have the missing feature. A6 even discloses the missing feature twice (internally and externally). However, the internal adhesive of A5 and A6 solve a problem (layer separation) that does not seem to exist in the closest prior art. A3 and A6 solve the same problem as A2 (sticking to skin), but do not disclose combining an adhesive with a hydrogel (compatibility).

Friday, March 09, 2012 First and second medical use

After reading the claims and the first page of the description, it is very clear what they wanted to test this year. First and second medical use. Articles 54(4) and 54(5). This is not be confused with second non-medical use.

The description makes clear that wrinkle treatment and deodorisation (claims 4 and 5) are cosmetic and non-therapeutic, while wound healing and pain alleviation (claims 2 and 3) are therapeutic.

When you want to attack a claim on a substance or composition for use in a therapeutic method, it is not enough to attack the structural aspects and the suitability for the claimed use only. You also have to show that the use is already known (novelty) or obvious (inventive step). For the cosmetic products, it is enough to find the structural features and the required suitability only.

UPDATE: This did turn out not to be so important. The medical use claims are attacked with inventive step attacks and the closest prior art documents already disclose the intended use. Furthermore, it is debatable whether a patch can be considered a substance or composition in view of Articles 54(4) and (5).

Friday, March 09, 2012 Intermezzo: famous composers

As usual, the exam committee has put some effort in coming up with a coherent set of names. This year's topic: famous composers and operas. They scrambled some of the names, but I was able to discern the following:

A1 - Claude Debussy (representative/composer), Vincenzo Bellini (street/composer), Scala (city/famous opera house in Milan), Norma (proprietor/famous work of Bellini), Donizetti (inventor/composer)
A2 - Beethoven (inventor/composer), Fidelio (applicant/work of Beethoven)
A3 - Giuseppi Verdi (inventor/composer), Othello (applicant/opera by Verdi/play of Shakespeare)
A4 - Georges Bizet (inventor/composer), La bohème (applicant/famous opera by Puccini)
A5 - Giacomo Puccini (inventor/composer)
A6 - Richard ('Richie' for intimi) Wagner (inventor/composer)

Considering the clear link between Puccini and La bohème, I am expecting an inventive step attack using A4 and A5.

Does anyone know who or what Leon Cavallo, Charly Gouno, Toss KA and Lohen Green refer to?

UPDATE: I see that also D2 included some composers. It is, however, clear that the D paper also aims at the less educated candidate. The composers used there are Wolfgang Amadeus Mozart and Franz and Johann Strauss.
The mechanical A paper had some funny names only to be understood by the Dutch. In a paper about frying food, Mr. Oliebol and Mr. Beignet come into play. Oliebollen en beignets are typical fried foods for New Year's Eve.

Friday, March 09, 2012 The 2012 exam

Today it's my exam day. I have received a copy of it this morning and am going to try to find all the correct attacks. For now, only some first impressions.

• No legal issues in the client's letter. This is not really a surprise. Over the years, the number of marks for legal issues has gone down gradually. Next year the exam will be one hour shorter and the purely legal questions in the client's letter were already expected to disappear.
  
• No prior rights. No added subject matter issues. No priority issues. There is a good chance that there will be some complex inventive step issues then. Or did they decide to make it easier this year?
  
• The claims look medical, but the only method claim of the exam is a clearly patentable manufacturing process.
  I see something that looks like a method step in claim 2. However, no human or animal body is involved. At this moment, I don't know how to interpret this claim yet.
  
• As usual there are some claims with ranges and I see a lot of 'suitable for' constructions. The main topics of this exam seem to be claim interpretation and inventive step.

Ok. That's it for now. I'm going to read the patent and the prior art and will come back to you later today...

Tuesday, August 09, 2011 The answers according to the exam committee

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.