Friday, 17 July 2015

Examiner's Report Paper D EQE 2015 available

The Examiner's Report for Paper D of EQE 2015 is available on the EQE Paper D Compendium webpage.

At this moment (17 July; still on 25 Aug), it is only available in English, and the webpages indicate that translations into French and German are in preparation.
Candidate's Answers are available in all three languages (25 August).

The Examiner's report gives "possible answers" for all legal questions (DI) as well as the questions of the legal advice part (DII). We refer to the Examiner's Report for the possible answers. Discussion on this blog is appreciated. 
Our answers, posted in the first few days after the EQE on this blog, can be found as "Our answer to the DI-part of D 2015"  and  "Our answer to the DII-part of D 2015", as well as "D2015: First impressions?" and "D 2015 results for various types of candidates".

The Examiner's report also makes some general and specific remarks, which we repeat below. We invite all candidates and tutors to post their comments.

Selection from Examiner's  Report Paper D 2015


General comments 

Some candidates do not follow the Implementing Provisions to the Regulation on the
European Qualifying Examination by putting their names or initial in their paper or by
using outdated version of the legal provisions.
It is reminded that not following the rules of the IPR can only have negative
consequences.
A complete answer requires a detailed analysis and a clear conclusion without
contradictory statements. Simple repetition of the facts does not bring any marks.
Candidates are reminded that it is essential that their answers can be read and are
encouraged to write legibly.

Examiners’ Report Paper D – Part I 

Question 1 (9 marks) 

Most candidates recognized that it is important to avoid the re-dating of EP1 and
EP2. However, not all candidates pointed out that for EP1 the applicant has to
request that the date of filing remains 17 February 2015 and that for EP2 the
drawings have to be withdrawn.

Question 2 (8 marks) 

Many candidates correctly established that the right to priority for EP1 is lost. Some
candidates wrongly referred to Article 90(5) EPC as a legal basis. Fewer candidates
noticed that the loss of priority occurred after the publication of EP1 and therefore
EP1 is prior art under Article 54(3) EPC for EP2.

Question 3 (9 marks) 

Parts a) and b) of the question were very well answered. Many candidates referred to
both the Paris Convention and the WTO. Full marks were given to candidates
referring to either of them. However, not all candidates are familiar with the Rules of
the PCT and EPC governing which Office can act as a receiving Office. Very few
candidates considered the requirements of the GPTO regarding the language in
which international applications may be filed.

Question 4 (7 marks) 

Almost all candidates correctly answered that for EP-D1 the English translation may
be brought into conformity with the original Japanese text and that EP-D2 cannot be
corrected on the basis of Rule 139 EPC. Only some candidates suggested filing a
new application within the priority year.

Question 5 (7 marks) 

Candidates gained points by referring to Rule 30(3) EPC but few candidates went
into the details of the Decision of the President and the Notice of the EPO. For
instance, few candidates recognised the requirement to file the sequence listing in
electronic form and the requisite statement. Some candidates failed to point out that
two fees for further processing are to be paid.

Examiners’ Report Paper D – Part II 

The second part of the D paper requires candidates to analyse a situation concerning
various existing patent rights and suggest specific actions that are usually to be
carried out within a time limit. Care should be taken to correctly calculate the time
limits.

This year the main aspects of the paper were:

- A patent for the subject-matter M+A would provide the broadest protection but there
is currently no pending patent application validly claiming it. A new application based
on EP-Z can be filed by TIPOGRAF-X claiming M+A.

- EP-X3 is not an enabling disclosure for M+A+B+C+D but the problem can be solved
by filing a new application, preferably a PCT application in order to extend protection
worldwide.

- TIPOGRAF-X will not be free to use M+A+B+C+D because IPCR-G has rights to
M+A+B (via EP-G) and PRINT-L has rights to M+A+C (via PCT-L).

Regarding the specific questions

Question 1 (30 marks) 

This part was generally well answered by candidates.
Any analysis of the current situation must be conducted without considering potential
actions which may come later. Candidates pointing directly to actions may be unable
to earn all points for analysing the current situation
This year, question 1 specifically requested an analysis structured around the
subject-matters. In spite of this, many candidates structured their analysis around the
patent applications which can lead to points being missed.
Candidates cannot earn full marks by merely identifying documents belonging to the
state of the art without identifying whether they are novelty destroying. For example,
identifying an Art. 54(3) document does not necessary imply that it is novelty
destroying.

Comments on inventive step were occasioned by the information given in the paper
and therefore expected. Some candidates discussed only novelty and did not
address inventive step.

Question 2 (4 marks) 

This question required an appreciation that patent ownership does not relate to
freedom of action. This fundamental concept is still not always understood.

Many candidates did not realise that machine M+A+B+C+D falls within the scope of
protection of broader claims M+A+B and M+A+C.

Question 3 (26 marks) 

A large number of candidates saw the possibility of using Art. 61(1) to file a new
application based on EP-Z, although very few discussed the consequences that it will
have on the negotiation with ICPR-G.
Few candidates saw that old EP-Z can be used to block the grant of M+A in EP-G.

Some candidates saw the possibility to redate EP-X3 by adding the missing parts but
very few saw the optimal solution consisting in filing a new PCT application claiming
priority of EP-X2 and EP-X3. Most of those candidates realised that by filing a PCT
application rights may be obtained in the competitor`s market, which would be
beneficial for a cross-licensing agreement with PRINT-L.

1 comment:

  1. With regard to Part II, apparently, I did not know the Board's interpretation of the expression "the current situation concerning the following printing machines" and thus included recommendations, which normally would be in answer to question 3, into the answer to question 1. I meant that, for example, the fact that Art. 61(1) can be used to file a new application based on EP-Z seemed like a
    matter definitely relating to the current situation. And for question 3 I did not have much time, so did not mention that I had already given some advices in response to question 1.

    However, Part 2 is 60 points altogether, and the Board later split these points in proportion 30/4/26, hence I got almost no points from the set of 26 which were available for question 3.

    Should I appeal based on the lack of clarity of question 1?

    ReplyDelete