EQE 2010 - Examiners report for DII
The Examiners reports are now available for DI and DII
I have looked at the DII solution, and compared it to my own answers I made in the office immediately after the exam. It was not an easy DII paper.
The first part was concerned with KA (Knowledge for All), who did not want KM (Knowledge is Money) to get a patent for EPKM that referred to EP1. The model solution proposes that KA abandons their earliest application (EP1) for the signal (EPKM not enabled as signal needed for invention), and pursues a later application (EP2) with a later effective date without claiming priority of the earliest application..
The DII exam is supposed to sketch a practical situation - I have never heard of a client who only files applications to block others, so it seems a little strange not to simply get your strongest right (the signal) granted and use it to block exploitation. However, the client has asked a specific question - can we stop KM from getting a a patent on a fishing method? On the exam, even if it seems a little strange, you should always answer the client's question FIRST. Then if you do not think this is the best course of action, you can propose something else BRIEFLY.
The model solution also states that claiming priority of EP1 with EP2 will enable EPKM because EP1 becomes publicly available. Although EP1 does become publicly available (Art.54(2)), this does not automatically mean that EPKM is enabled (Art.83). EPKM refers to EP1 by its number, including it by reference. If EP1 is withdrawn, the file will not be made public, so the skilled person will not be able to find EP1 by following the reference in EPKM.
The public has to be able to find it without undue burden T737/90 - would the public know to look in the file of a later application for a priority claim? There is some case law on this (T341/04), but on the exam, you have no time to look it up and read it. If you get this far, then you will get the points anyway, even if you cannot solve it completely..
This exam had two parts - this is always tricky because you do not know how to balance the time. The parts could be done completely separately, but this is not clear when reading the paper - a clear instruction on this in the paper (case 1 / case 2) would have been nice.
Crucial here was realising that Norway only joined the EPC on 1 Jan 2008. If you got this, you probably got most of the points.
I have looked at the DII solution, and compared it to my own answers I made in the office immediately after the exam. It was not an easy DII paper.
The first part was concerned with KA (Knowledge for All), who did not want KM (Knowledge is Money) to get a patent for EPKM that referred to EP1. The model solution proposes that KA abandons their earliest application (EP1) for the signal (EPKM not enabled as signal needed for invention), and pursues a later application (EP2) with a later effective date without claiming priority of the earliest application..
The DII exam is supposed to sketch a practical situation - I have never heard of a client who only files applications to block others, so it seems a little strange not to simply get your strongest right (the signal) granted and use it to block exploitation. However, the client has asked a specific question - can we stop KM from getting a a patent on a fishing method? On the exam, even if it seems a little strange, you should always answer the client's question FIRST. Then if you do not think this is the best course of action, you can propose something else BRIEFLY.
The model solution also states that claiming priority of EP1 with EP2 will enable EPKM because EP1 becomes publicly available. Although EP1 does become publicly available (Art.54(2)), this does not automatically mean that EPKM is enabled (Art.83). EPKM refers to EP1 by its number, including it by reference. If EP1 is withdrawn, the file will not be made public, so the skilled person will not be able to find EP1 by following the reference in EPKM.
The public has to be able to find it without undue burden T737/90 - would the public know to look in the file of a later application for a priority claim? There is some case law on this (T341/04), but on the exam, you have no time to look it up and read it. If you get this far, then you will get the points anyway, even if you cannot solve it completely..
This exam had two parts - this is always tricky because you do not know how to balance the time. The parts could be done completely separately, but this is not clear when reading the paper - a clear instruction on this in the paper (case 1 / case 2) would have been nice.
Crucial here was realising that Norway only joined the EPC on 1 Jan 2008. If you got this, you probably got most of the points.
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