Tuesday, 1 March 2016

First impressions D 2016?


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?
Was the balance between EPC and PCT right for you? Substantive topics in DI?
Which of the the DI Questions did you consider particularly difficult, and which relatively 'easy'?
Did you skip any DI-questions? if so, why? Too difficult, or allocating the time for another question?

Were the legal issues in the DII-part well doable? Patentability? Difficult priority analysis? Business situation and relevance clear? Exploitation?
Did errors with one of the legal issues or one of the patentability issues in DII have a big knock-on effect on the rest of the paper in your view (the D papers of the last three years were 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, and for the wholeWhat is your expectation of the pass rate and the average score?
How did this year's D-paper compare to the D2013, D2014 and D2015 (assuming your practiced those) - DI and DII-wise?

The paper and our answers

Copies of the D-paper will be provided on this blog as soon as we have received copies of the papers, in all three languages here (English [available]], French and German).

The core of our answers will be given as soon as possible in two separate blog posts: one for the DI-questions and another post for the DII-part.

We look forward to your comments!
Comments are welcome in any official EPO language, not just English. So, comments in German and French are also very welcome!

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 03-03-2015 03:03"), whereas using your real name or a pseudonym is more personal, more interesting and makes a more attractive conversation. You do not need to log in or make an account - it is OK to just put your (nick) name at the end of your post.

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 our DI post and DII-related questions to our DII post. Thanks!


Roel, Pete, Jelle, Gregory, Heide

47 comments:

  1. 4 PCT related DI questions.

    In total: I liked the D 2016 exam.

    A & B tomorrow, C on Thursday.

    GOOD LUCK

    ReplyDelete
  2. It would not let me post before...

    I got a bit surprised at the amount of PCT questions too. But they were not so bad (no representation, yay!).

    Part II fast to read, a bit messy.

    It worries me a bit that I did not identify any traps...

    But all in all, I have a good feeling. Not the easiest, but fair.

    Charlie

    ReplyDelete
    Replies
    1. The poor Pre-Examination candidates did have representation under PCT yesterday...

      Delete
  3. I_did_not_wear_underwear@exam1 March 2016 at 16:39

    I did not like the Art 83 doubts they casted on the BC-patents in DII with regard to Material X...I would have appreciated better hints at what to do with this issue

    I opted for stating that even for the broad claim (cup+rip) there was no Art 83 problem, because the skilled person would have easily found material X for putting this into practice (see e.g. document D used in appeal)

    Still, it was tricky and time consuming to sort this out..in the end i though BC had the best protection for the rip-features

    ReplyDelete
    Replies
    1. This comment has been removed by the author.

      Delete
    2. I think the material X was an essential item and could thus not be claimed in PCT-BC due to 123(2). Remember, it was not disclosed in PCT-BC or CH-BC. In addition, PCT-BC did not constitute an enabled disclosure with regard to this embodiment. That was about my answer to this issue...

      Delete
    3. I agree with Anonymous

      Delete
    4. X is common knowledge as such and in case of coffee-caps (even though without rips). So skilled person can practice PCT-BC without undue effort...no Art. 83 problem

      Delete
    5. This comment has been removed by the author.

      Delete
    6. Yes, X can not be claimed in PCT-BC (not disclosed).
      But what about claiming this feature from PCT-SA in the advantage of San Antonio (same description as FR-SA) ?

      Delete
    7. X is common knowledge yes but only for capsules not for rips. I am serious doubting that skilled person can practice PCT-BC without undue effort for rips.

      Delete
    8. The single fact that X is common general knowledge does not mean that there is no enablement problem.
      It would lift the enablement if is common general knowledge that X is a material usable to make ribs or similar structures.
      There will be many materials in common general knowledge. It can still an undue burden for the skilled person if there is nothing that would let him try exactly X.

      In my view, the sentence "material X is known ny a person skilled in the art" is there to indicate that no special disclosure is needed as to how to make material X itself - thus, that it can be used (to make cups with rubs) without complications.
      Johan

      Delete
  4. Wrt the broad claim of BC in D2, I also went with it as You need one working embodiment, which he clearly had for enablement.

    ReplyDelete
    Replies
    1. You need enablement over the full scope of the claim - see GL (2015) F-III, 1: There are some instances where even a very broad field is sufficiently exemplified by a limited number of examples or even one example (see also F‑IV, 6.3). In these latter cases the application must contain, in addition to the examples, sufficient information to allow the person skilled in the art, using his common general knowledge, to perform the invention over the whole area claimed without undue burden and without needing inventive skill (see T 727/95). In this context, the "whole area claimed" is to be understood as substantially any embodiment falling within the ambit of a claim, even though a limited amount of trial and error may be permissible, e.g. in an unexplored field or when there are many technical difficulties (see T 226/85 and T 409/91).

      Delete
    2. So what does mean in regard to this EQE? The broad claims of PCT-BC were clearly not enabled by its poor disclosure...but would you say that the earlier documents and common knowledge were sufficient to cure this deficiency?

      Delete
    3. On DII, you have to be careful about concluding that something is definitely not enabled by the disclosure -you are only given certain facts to work with. On this paper, you don't have enough facts to decide whether there really is a problem - it depends on how many cross-sections fall under "other cross-sections" - it could be 2, it could be 20. In such a case, it is better to think of whether a fix is possible (amended claims) and whether this impacts the exploitation situation. If the situation can improve your clients's business significantly, it may be worth discussing. But here, the clients application also has the same problem.

      Delete
  5. 50 % refund of appeal fee in one of the D1 questions?

    Is this correct?

    ReplyDelete
    Replies
    1. According to me, full refund in one case (b1) and 50% refund in the other one (b2)

      Delete
    2. Correct. Please refer to the DI-blog for the details,

      Delete
  6. so anyone like me stand on the side that BC cannot have the broad claim by using material X to the rib? I thought the cross section is first time mentioned by sa and thus would not be obvious to skill person by applying X.

    ReplyDelete
    Replies
    1. I recommended:

      Filing appeal in official language because company in France is not entitled t file in Dutch. No new ground. Prima facie relevant document D.

      BC had a better position because of cup & rib claim. Therefore, I recommended asking for a license.

      The matter relating to X made me seriously mad. I decided that claim 1 of PCT-BC is patentable.

      Delete
    2. Agree with this. Publication of FR2-SA before PCT-BC filing : third party observation for coffee + G ?

      Delete
    3. I also said that claim 1 of pct-BC was patentable as pct-BC had at least one working embodiment.

      Delete
    4. for coffee + G you had to add prirority to pct-sa...

      Delete
    5. All claims of pct-bc in ch-bc if i remember. So, no third party observation or opposition in ep phase at a later stage possible.

      Colour of underwear was red today :).

      Delete
    6. No, coffee + G added and described only in PCT-BC ... and yes, adding priority of FR2-SA for PCT-SA

      Delete
  7. appeal in Dutch inadmissible? A new authorization from the SA to file a new appeal?

    ReplyDelete
    Replies
    1. I think you are right. A14(4) does not apply here (French society). According to me, SA has to file a new appeal within the two months (it is possible in the right time limit).

      Delete
    2. Agree, there is about a week still

      Johan

      Delete
  8. I generally think there was way too much PCT in this... Makes me a little unsure whether my answers in DI are sufficient, and for some points I knew the answer, but did not know exactly where to find the legal basis, as my knowledge-by-heart of PCT is clearly not as good as with respect to the EPC.

    For DII I found it anoying that there was no prior art, since none of the applications had entered EP, i.e. the PCT applications were not prior art (yet), they probably would be, but I just think there was too many unknowns, which were influencing the answer.

    And, the point that PCT-BC was filed in German... what was the deal with that?

    All in all, I got very much on paper (40 pages in all), but I am not sure whether those pages contain the points that attracts marks.

    ReplyDelete
    Replies
    1. German may have meant that upon Publication, BC could get preliminary protection (A 67) if they planned to enter EP-phase...

      I agree with PCT in D1, I practiced the 2015 exam and basically laughed at how little legal basis they asked for in regard to PCT (there was some question on priority and filing at EPO/DPMA)...interesting to see that this has apparently shifted within one year now

      Delete
    2. totally agree. I was not sure what to say in DII. Whether the two PCT applications count as prior art seems to depend on their future. I decided to just state that the prior art effect depends on which the national/regional phases will be entered and also on national law. But that doesn't seem too satisfactory ...

      Ochsensepp

      Delete
    3. I answered that ep-bc would be 54(3) for ep-sa after both would have entered ep phase.

      Missed to write that cup & triangular rip is an alternative to rip & elliptical rip, and thus patentable. Nevertheless, it is dependent on cup & rip according to pct-sa.

      Delete
    4. Sorry,

      ... according to pct-bc.

      Too late. Have to stop this and get some sleep.

      Delete
    5. @Ochsensepp: for the EP-phase of both PCTs, you can give the exact conditions under which they will/will not be Art.54(3) EPC prior art, and what to do to get provisional protection.

      Delete
  9. Too much focus on PCT imho.

    Started with D II and allowed 3 hours for it. Remaining 2 hours for D I were very tight. Had no time to re-read and am sure made stupid mistakes because of that.
    First impression after handing in: definitely not passed
    Second impression after looking at it again at home: maybe with some luck I'll get enough in DI and DII.

    ReplyDelete
  10. Much PCT at first impression. But actually most of it was possible to answer via epc as it vas linked mostly to regional phase. DII was straight forward, similar to last year with slightly more legal issues as date issues.
    DDD

    ReplyDelete
  11. as pct-bc was filed in german, bc has to pay the filing fee only in order to create 54(3) for ep-sa. I assume that ep was designated.

    Very hard D2 with a lot of possible answers this year. 4 pct related questions in d1 and also d2 related to pct.

    ReplyDelete
  12. This comment has been removed by the author.

    ReplyDelete
  13. I did the D paper last night and this morning. We have posted our answers to the DI here: http://eqe-d.blogspot.nl/2016/03/d-2016-our-answers-to-di-part.html
    My impressions:
    - a lot of PCT :-), but mainly covering the things you should know like priority, translations and EP-entry
    - the DI questions 1-4 were a slightly different style, directing you to the answers they wanted. There was only one open question - Q.5
    - Q.3 and Q.4 were a little difficult to do in the time, but I think the other questions could be done a little quicker.

    I will try and get our DII posted this afternoon.

    ReplyDelete
    Replies
    1. Hi Pete, will a copy of the D-paper be made available?

      Delete
    2. The D-paper (English version) is now available in the opening paragraphs of the general D, the DI and the DII blogs.

      Delete
  14. Well thats a fail for me - wish i had not come on this site to read how easy people thought the paper was judging by the comments - its frustrating like hell. Working hard, studying and ruining ones health and happiness for these exams. Im now looking forward to failing C tomorrow.

    ReplyDelete
    Replies
    1. You cannot conclude from these answers that you have failed - the examination committees stille need to decide defintiely what they will expect for full points, how accurate the legal basis must be, alternative answers that are also accepted etc.

      Also most people only remember the things that they missed and not the things they actually wrote down.

      Delete
  15. Our answer to DII is now posted here: http://eqe-d.blogspot.nl/2016/03/d-2016-our-answer-to-dii-part.html

    I think that this DII was very do-able.

    Our answer is just limited to the core of the answer - you can go into a lot of other details, so I think you can easily spend 3.5 hours discussing everything.

    The number of applications was manageable, and the priority was relatively straightforward. For example, you could discuss provisional protection.

    I missed a little guidance about the most important territories for each party - obviously CH and FR need to be mentioned, but with the PCT applications it is nice to be able to limit the discussion. Q.3 did ask about the situation in Europe, but even that is quite broad.

    A little strange is that subject matter was not claimed in the PCT applications - this is unfamiliar to most people what you can do. However, even if you don't know what to do in the international phase, you can always amend the claims on entry and deal with it in the national/regional phases.

    I was also not able to find any guidance for how the BoA will deal with new facts and evidence in this case. I am not sure how the representative leaving for the South Pole can be used.

    I saw some comments about possible enablement problems of the Pcc with rib claim (that it is too broad). I am not sure that this was intended, and it doesn't really lead anywhere - to judge it properly you would need more details about "other cross-sections". We would also have to amend our claim as well. It would not change the exploitation situation. I interpreted the use of any plastic as an advantage for the t-rib and e-rib.

    ReplyDelete
    Replies
    1. @Roel, @Pete, 1, how many points subsequently do you think I will lost if I "mistakenly" marked that PCT-BC cannot claim rib because of the broad and non-enabling embodiment? 2, for PCT-SA, couldn't we amend the rib claim into rib made of material X? I believe that the description of FR-SA fully support this amendment, if you apply the same standard to the arguement that skilled person can use material X as commeon general knowledge for the rib. I propose to made the amendment on PCT-SA to amendment the rib claim into rib made of material X.

      Delete
    2. the X itself is common general knowledge, but the cross section of the rib common general knowledge or applying X to the cross seciton of the rib is common general knowledge? How many types of cross section of the rib can have? The exam paper only mentions ellictial and trangial but according to my geomtry knowlege peopole can make countless number of cross section https://en.wikipedia.org/wiki/Cross_section_%28geometry%29

      Delete