Tuesday, 25 February 2014

D2014: First impressions?

To all who sat the D-paper today:

What are your first impressions to this year's D-paper? Any general or specific comments?

Were the topics well balanced in the DI-part?
Were the DI Questions difficult?
Did you skip any DI-questions?
 
Were the legal issues in the DII-part well doable? Did any error on one of the legal issues not have a big knock-on effect on the rest of the paper (D2013 was very well designed in this respect!)?
 
How much time did you allocate for DI, how much for DII? Which part did you do first, DI or DII?
How many marks do you expect to have scored in the DI-part, in the DII-part, overall?
Was the D-paper more difficult than the first 5-hour D-paper, the D 2013? What is your expectation of the pass rate and the average score?
 
We posted our answers to the DI-questions in a separate blog "Our answer to the DI-part of D 2014" on Thursday Feb 27 around noon.
We posted our answer to the DII-part in a separate blog "Our answer to the DII-part of D 2014" at Feb 26, 17:19.
A copy of the D-paper (English version) is also available: D 2014

We look forward to your comments.
Please do not post your comments anonymously - it is allowed, but it makes responding more difficult and rather clumsy ("Dear Mr/Mrs/Ms Anonymous of 24-02-2014 17:54"), whereas using your real name or a pseudonym is more personal, more interesting and makes a more attractive conversation.
Please post your comments as to first impressions and general remarks to the D-paper as a whole, and to the two parts (DI and DII) as whole part to this blog.
Please post substantial questions to specific DI questions to the DI blog "Our answer to the DI-part of D 2014", and DII-related questions to the DII-blog "Our answer to the DII-part of D 2014". Thanks!

Roel, Pete, Jelle

28 comments:

  1. My impression about DI:

    I think some of the legal questions were quite difficult, or at least addressed topics that many candidates as well as qualified European patent attonets consider difficult: Art.61 and Protocol of Recognition in Q1, interruption and resumption in Q3, representation under PCT in Q4 and admissibility of appeal in Q5.

    However, some questions were quite typical and/or should not have posed big problems if candidates practised D2013 when preparing for this year's D: Q2 is a standard priority/ prior art/ novelty / validity question, representation under PCT (Q4) was also tested last year, and EP entry (Q6) is in almost every DI.

    I guess many candidates skipped at least one of Q3, Q4 and Q5 to have enough time for the other DI-questions and/or for the DII-part. Is that correct?

    Roel

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  2. Some first impressions about DII:

    Last year's DII (2013) had explicit questions as to the patent situation with respect to explicitly listed variants in QI, and in QIII, the candidates was explicitly asked whether the client had freedom to operate with products mentioned in the paragraph just before the question in its two markets, as well as whether the client could prevent his competitor to be active on his market.
    This year, the questions were less directive as to which topics to discuss exactly, and were similarlt phrased as earlier DII questions. I expect this has a negative effect on the pass rate compared to last year (when the pass rate for paper D was surprisingly high) - I expect the pass rate to be back to pre-2013 levels.

    What do you think?

    Roel

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    1. As in D 2013, the big knock-on effect of an incorrect conclusion about one issue on other issues was very limited. E.g., where a prior art document was an Art.54(3) that did not destroy novelty such that the patent was valid, you would also have concluded so if you wrongly used the same document as Art.54(2) in view of enhanced/ improved/ even better stability.
      The complexity of the patentability situation is in this DII-part very similar to many recent papers. However, the legal topics were not so difficult and/or rather usual topics (EP entry using Further processing).
      As in almost any DII, a valid broad right (generic claim to K + X) is owned by one party and commercially very interesting narrower or related rights are owned or can be obtained by another party (A/B/C/D + X + Y; process to manufacture A/B/C/D without Z). The discussion on how this affects each other's business and how to deal with that will attract a significant number of marks if done well.
      The exploitation discussion (which can stop who from doing what where based on which patent / claim) is quite interesting in this DII: import and protection conferred extending to the products directly obtained from the process have not been topics in DIIs recently - although in some technical fields / some industries very important.
      The DII-part should have been well doable within the 3 hours that you are expected to spend on it, if you are well-prepared and know what rights a granted patent and patent applications bring you. Maybe the Exam Committee will, for the first time ever, subtract marks if you base your advice on the wrong believe that a patent would grant you a right to produce - the Exam Committee as well as us tutors are every year unpleasantly 'surprised' by the large number of candidates that does not know that a patent 'only' gives a right to "prevent third parties not having the owner’s consent from the acts of: making, using, offering for sale, selling, or importing for these purposes that product" (e.g., Art.28(1) TRIPS or any national law).
      As a last general remark: your client GD is only involved in the development and production of cosmetic products [001], whereas his competitor CLC is also involved in the production of checical products [003]. It will be interesting to see how many candidates actually addressed this second field of business in answering, in particular, Q.4 / in discussing cross-licensing options.

      Roel

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  3. Hi
    It took me half of the time for the questions.
    Then I did part II and had time left to review part I.
    Useful review since I missed one holiday (R134) and some argument about the protocol on recognition.
    I lost time on the waiver of power of attorney. Hopefully the second part of that question helped me correct the first part.
    I found hard question b) of part II (whether we can keep on using A imported from India, since CLC has right for Z).

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    Replies
    1. dear Anonymous, what is your name, or nickname? Makes a better and easier conversation...

      Delete
    2. Hi,
      Sorry I didn't find 'Name'. At first I thought it was automatically done for registered people only ;-)
      My name's Emmanuel.

      Delete
    3. Dear Emmanuel,

      If you used 2 1/2 hours for the DI-part, I would expect you to run in severe time problems with the DII-part, but you indicated that you actually had time left to review part I after you finished the DII-part. To me that suggests that you were either very-well prepared in legal knowledge, knowing how to apply the legal knowledge in DI and DII, and experienced in giving legal advice to clients, and may have gotten a score above 75 (which every year only about at most 5% of the candidates do), .... or you overlooked a lot of things at got a score below 35 (which every year more than 25% of the candidates do)... I hope it is the first! Please let us know once you got your results - and/or send us a copy of the paper once you have received it in May for checking (or after you got the result) to satisfy my curiosity, and to be able to share the outcome of the two statement below with the other reader of this blog.

      For each of the statements E.1-E.4, indicate whether the statements is True or False:

      E.1 Emmanuel got a total score for D2014 of 75 or more
      E.2 Emmanual got a score for the DI-part of 30 marks or more
      E.3 Emmanuel got a score for the DII-part of 45 marks or more
      E.4 Emmenual got a compensable fail

      Without having seen your answer, I will go for: T, T, T, F! Please let me know in due time whether that gets me 0, 1, 3 or 5 marks.

      Kind regards,
      Roel

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  4. Roel,
    I answered all DI and DII questions without fighting the clock. I found DI reasonable, but DII a bit trickier than earlier papers, in patricular question 2 (protection extended to compound A?) and question 3 (revival in EP phase).
    Nikos

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    Replies
    1. Hi Nikos,

      very good that you did not need to fight the clock - that gives confidence in getting a pass (unless you overlooked too many issues...;-))

      Indeed Q.2, addressing Art.64(2) EPC, has not been a topic of the D paper that often. But if you did it wrongly, you should have concluded anyhow that the client has a workaround (his new process that does not use Z): so, the effect on the overall business situation is not too severe.

      As to Q.3: remedying a missed EP-entry is in about 1/4-1/3 of all D-papers, either in DI or in DII. In this D, the main difference was that the entry deadline expired already many months ago, so you may have concluded that it is now too late to do FP, whereas it will be possible as you did not yet get a loss-of-rights - so you can do FP today or somewhere in the next few months. Also, in remedying the entry in this case, the cutoff due to the requirement to pay the renewal fee with additional fee had to be taken into account!

      Roel

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  5. I started with the DII questions, and was hoping to spend 2.5h max. on this part, but it turned out to be a trickier than expected. I managed to get an answer to parts a) b) and d), but when I was working on c), I noticed I already spent 3 h on DII, so I decided to go to the DI part. Unfortunately, also the DI part was harder than I expected. I had to rush questions 5 and 6 in the last half hour, which probably means I will have missed quite a few points which shouldn't have been hard to catch ...

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    1. Hi anonycat,
      in our methodology courses, I strongly recommend candidates to allocate enough time for DII, if needed more than the expected 3 hours, because it would be a shame not to score the marks by drawing your conclusions in the last 30-60 minutes if you have spend more than 2, maybe even 3, hours in analyzing the DII part. Moreover, DII is more fun than DI, with DII only you can get a compensable fail and not with DI alone, and DII has quite some "easy marks" in patentability assessment as well as exploitation discussion which you will only consider writing on your answer paper if you take sufficient time...

      Roel

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  6. DI: was not too bad, but some questions did need a lot of time to answer

    DII: Q2 (strange question), CLC holds patent for the production of Z, hence by A64(2) [A.5quarter Paris Convention] Z is protected, but only Z as it is directly obtained (According to Singer/Stauder RN 12 the end-product A is not encompassed by the protection conferred by Art. 64(2)]. A is imported without a trace of Z, so why not import it? It can not be proven in court that the imported A was made via the protected Z, in particular if there may be other ways to produce it, so how shall a judge be convinced that imported A is infringing the patent when it has nothing to do with Z anymore?

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    Replies
    1. That's about what I answered. But I concluded that if you want to keep good relationship with CLC, you might want to stop importing and produce it yourself without compound Z.

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    2. Dear P.D. and Emmanuel,

      We will post our answer to DII later today - we want to review the individual results of multiple tutors before posting our answer ;-)

      I agree with both of you: par [014] emphasizes that A is obtained using a multi-step process that uses Z as a starting material, and EPFR3 only claims a process for the production of compound Z. EPFR3 thus only gives protection via Art.64(2) EPC / Art.28(2) TRIPS for the directly obtained product from the process, which is Z. A is not directly obtained but via the multi-step process.
      So, GD can keep importing A from BC India, and -in view of the far higher efficiency- switch to A produced via their own new process that does not use Z (par.017]) as soon as they have that industrially operational in EP or in IN.

      You need of course also to explicitly check whether one of the other CLC rights would prevent you from obtaining compound A, but also whether one of the other CLC rights would prevent you from using compound A - i.e., whether you are free to use compound A for your planned product launch of the cream composition comprising A + X + Y into the EP market in the near future (par[009]).

      Let's continue the discussion after we posted our answer in the corresponding thread.

      Roel

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  7. Hi,

    I agree, DI had some tricky topics, but as I felt I had at least something to say about each I kept to 3 min/mark and did DI in 2 hours (yes, not what I planned, Roel!).

    DII: I spent most of my time on Q1 to lay the playing field for the other questions. Nice that they added the impact of new Rule 53.

    However, Q2 confused me also, why would buying the product from the Indian supplier be a problem in view if CLC's process patent? On the other hand, as one could revive PCTCZ2 in the EP phase, the better solution would be to stop importing and produce it oneself? (Unfortunately I spent some uneccessary time not realising that as no notice of loss of rights had been sent, there was still time to use further processing, I should have got that one quicker.)

    And as usual, I could probably have said more about the business impact, but by then my time was up...

    At the end I felt like I had answered a lot, but for DII probably didn't really tie up the lose ends properly. Hopefully I got the major issues though.

    /Sofia

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    Replies
    1. Hi Sofia,

      Even if you would not revive PCTCZ2 (e.g, in case you -wrongly- concluded that it would not be possible anymore) in the EP phase, a good solution would be to stop importing A and produce it oneself. However, you shall realize that it needs some time to startup production: it is thus not an immediate solution.

      Roel

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  8. Hi,

    In the D1 part I found the 1st question quite difficult while the rest was doable. I managed to finish this part after 1h40min. The D2 part I thought was quite doable. However, I thought it was very hard to do it in the remaining time (even if I had 3h20min to do so). For the PCTCZ2 aspect I seem to have gotten it right (no R160(2) comm from the EPO).

    Wrt EPFR3 I also suggested that the client could indicate to BC the new method for producing A-D and thereby import it while being made with a different method. It's only once the exam was over that I realized that they were probably free to import A (but not Z).

    Fred.

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    1. Hi Fred, it depends of course very much on the person and varies a lot, but during last methodology course and correction paper season, I saw people struggling like crazy with trying to get high scores on DI (to increase their marks from 13-16 marks that they could get in 1h30 to at best 18-20 in 2h30 out of 40), and then running out of time for DII, because 2h30 minutes is difficult to get a reasonably complete answer to DII - most people only start scoring the marks after about 2h to 2h30, as they first need to disentangle the spaghettit to find the facts and be able to understand what the situation actually is (an experienced tutor can do the DII maybe in 2h if he writes it in all detail, and then gets 50-55 marks of 60). In thiose 2h30, the candidates only get 10-15 marks for DII - a clear fail if we add the at most 20 for DI.
      However, when I allow those candidates to work another hour on DII, they can gather the marks that are there for a grasp, and get to 30-45 marks for the DII-part, which together with the DI-score gets them around the compensable fail mark or most likely in the compensable fail or clear pass refgion. Some candidates then even get to 45-50 for just the DII-part - no need for them to do the DI at all ;-)
      So, I advised these type of candidates to make use of their DII-strength, and allocate 3h30-3h45 to DII to score at least 30 marks for DII, and use 1h15-1h30 to do the DI-questions that they consider doable in time to get another 15 marks. You can then also afford to skio e.g. Q1 of DI that took you so long - you really donot have time to use much more than 3minutes * number of marks for a DI-question, and if so, you need to catch up at a later question and not let it eat away from your DII-time.
      I hope you donot need this tip for next time, but kif you do, here it is for free - if you want to practice with it in case you are so unfortunate to need it: why not trying it in our methodology courses or in our correction paper program to see whether that works - we have 5h versions for all D-papers as of 2009.

      Regards, Roel

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    2. Thanks Roel,

      I actually did already use the 5h formats provided by delta patents on this (I bought all 5 of them). They were indeed helpful. I must say however that imho they still need some tweaking and correcting. I will give you some feedback per e-mail as soon as I get around to do it.

      Regards, Fred.

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    3. Thx Fred for your positive remarks. Any feedback as to unclarities, inconsistencies, errors or possible improvements in our material is much appreciated and will be advantageous for future candidates.

      (Unfortunately, when updating and adapting papers and Q&As, no matter how much care we give it, occasionally some dates or subject-matter remains from an earlier version. As these were the first 5h versions that we made, there may have been some more leftovers from the earlier full version...)

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  9. The Notice from the Examination Board dd 18 Juli 2013 emphasized that candidates should only use the EQE Calendars provided at the exam to answer the exam questions.
    Note that you should also be careful not to use the EQE Calendars in real life as you would find the EPO in Munich closed on 1/11/2014, All Saints Day [OJ 2014, A9], and the EPO in The Hague open on April 30 - our newly installed King no longer uses the birthday of his grandmother (his mother continue to use that date as her own birthday is in January, too cold for celebrations in NL!), but his own to celebrate his birthday and letting everybody having a day off by calling it a National Holiday as of 2014: April 27, just a few days different , few enough to have about the same weather, and many enough to confuse the ROW ;-)

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  10. Hi,

    I don't agree with the answer you provide for q8 in D1. I checked the OJ and GL references wrt the page fees. According to all of these references, the page fee is based on the published application and not the English translation. Also, this GL reference does not exist:GL E-VI, 2.1.3.

    Best regards,

    Fred

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    Replies
    1. Hi Fred, I will post your question again in the DI-blog and answer it there, Roel

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  11. Dear DeltaPatents team, first of all - thank you for providing the answers so fast, this is really helpful!

    However, I tend to disagree with your answer for DI, Q4a. Not sure though, so further comments are much appreciated :)

    The EPO as rO may have waived the requirement of submission of a power of attorney. In this case however, it was submitted, but it was not signed. Since it is not likely that the agent has another power of attorney from Mr. Smith which is properly signed, the EPO will be in doubt as to whether the agent is validly entitled to act, see OJ 2010, p. 336, 5th paragraph. So they will consider it necessary to receive a (valid) PoA due to the circumstances in the particular case.

    Then according to R. 90.4 c) PCT, since the PoA is not signed, the PoA is deemed to be not valid.

    Maybe I'm missing something here though.

    Helge

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    1. Interesting point. I am not fully sure whether the EPO would indeed doubt (do you have a reference to, e.g. the PCT Adm.Instructions when they will doubt, or to the EPO GL?). Further, you could argue that a non-siged document is deemed not filed - so a non-signed PoA is an absent PoA, in which case there would not ne any doubt...

      Any more thoughts on this? Anyone having the convincing argument by a explicit legal reference?

      Note: I replished your comment on the DI-thread -- please continue the discussion there.

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  12. Dear DeltaPatents Team, thanks for the quick answers, but I would disagree with your Q5 answer.

    The EPO is driving a very hard course at the moment with the admissibility of Appeals if the only request perused is one which could have been brought forward in the first instance. Therefore, I am not sure whether they would admit it.

    May be I just missed something, but why otherwise stretch on the fact that 2 was seen to be allowable in the first instance.

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  13. because they now use a harsh approach to Article 12(4) RPBA

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  14. Dear PD, Thx for your comment - I will respond in the DI-blog.

    -------------------------------------------------
    To ALL:
    Please only use this blog to give your general impressions to the paper as a whole, to the DI-part as w ahole, or to the DII-part as a whole, as well as to style, difficilty etc of the paper.

    Please post comments to specific DI questions to the DI-blog.

    Please post comments to the DII-part to the DII-blog.

    ------------------------------------------

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