Friday, 10 July 2020

D 3/19 - The term "must" in statement 4.1 of Pre-Exam 2019 leads to ambiguity.

Today, decision D 3/19 was published online (here).

The decision is reproduced below in its entirety, with emphasis added.

Statement 4.1 of Question 4 of Pre-Exam 2019 read:

The statement was also discussed at our Pre-Exam blog: is it TRUE in view of R.6(1) as the Examiner's report indicates, or FALSE as R.58 provides for a remedy such that there is no sanction of the translation is filed in the 2m period from notification of the R.58 invitation?

Also see similar (albeit slightly different) statements in Pre-Exam 2014, 8.2 ("Regarding EP-Z: the prescribed translation shall be filed within two months of filing EP-Z") and Pre-Exam 2017, 4.3 ("According to the provisions of the EPC, Adrienn must file the translation of the description within two months of filing of EP-A"); those statements also did not contain a sanction (see reason 2.1-2.2 below). Those statements had also been topic of discussion at our Pre-Exam blogs.

D 0003/19 () of 1.7.2020

European Case Law Identifier:ECLI:EP:BA:2020:D000319.20200701
Date of decision:01 July 2020
Case number:D 0003/19
Application number:-
IPC class:-
Language of proceedings:EN
Download and more information:
Decision text in EN (PDF, 194 KB)
Bibliographic information is available in:EN
Title of application:-
Applicant name:N.N.
Opponent name:-
Relevant legal provisions:
Cited decisions:
Citing decisions:
Summary of Facts and Submissions
I. The appeal, which complies with the relevant formal requirements, lies from the Examination Board's decision of 18 March 2019 awarding the appellant the grade "fail" in the pre-examination of the European qualifying examination 2019, her answer paper having been given a score of 68.
II. The Examination Board remitted the appeal to the Disciplinary Board of Appeal (hereinafter "Appeal Board") without rectifying its decision and informed the appellant accordingly.
III. The Appeal Board invited the Presidents of the EPO and of the Institute of Professional Representatives before the EPO (epi) to comment on the case under Article 24(4) of the Regulation on the European qualifying examination for professional representatives (REE, OJ EPO 2019, Supplementary publication 2, 2) and Article 12 of the Regulation on discipline for professional representatives (RDR, OJ EPO 2019, Supplementary publication 1, 119). Neither of them commented on the appeal.
IV. The appellant requests that
- the decision under appeal be set aside,
- her pre-examination of the European qualifying examination 2019 be awarded the grade "pass", and
- the appeal fee be reimbursed.
V. The appellant's arguments are essentially those on which the following reasons for this decision are based.
Reasons for the Decision
1. The appeal is admissible.
2. The appellant argued that statement 4.1 was not formulated clearly and comprehensibly and could therefore not be unambiguously answered with "yes" or "no".
2.1 The Appeal Board agrees with the appellant that the term "must" in the first statement leads to ambiguity. It is not clear whether or not this term implies that the direct consequence of failure to observe the time limit is a loss of rights that can be remedied under Article 121 or 122 EPC only.
2.2 Although the requirement under Rule 6(1) EPC to file a translation of a European patent application into one of the official languages within two months of filing said application is undoubtedly a legal obligation ("shall be filed"), non-observance of this time limit does not lead to a loss of rights (nor to a deferral of the filing date); the Receiving Section sets a second two-month time limit (see Article 90(3) and Rules 57(a) and 58 EPC). As a consequence, the question of whether or not statement 4.1 is correct cannot be answered with either "true" or "false" as required by a "multiple-choice"question in the pre-examination.
2.3 An unclear and confusing examination question constitutes a serious and obvious mistake (D 13/02, point 4). The appeal is consequently well founded and allowable. The further objection concerning statement 2.3 need not be dealt with in this decision. According to Article 24(3) REE, the contested decision has to be set aside and the appeal fee reimbursed.
3. The appellant further requests that she be awarded a "pass" grade for the pre-examination of the European qualifying examination 2019.
3.1 In accordance with decisions D 2/14 (points 5 et seq.), D 3/14 (points 12 et seq.), D 4/14 (points 11 et seq.), D 5/14 (points 6 et seq.) and D 6/14 (points 9 et seq.) and the reasoning in each of these decisions, the Appeal Board in the present appeal case considers that special reasons within the meaning of Article 12 of the Additional Rules of Procedure of the Disciplinary Board of Appeal (OJ EPO 2019, Supplementary publication 1, 50) present themselves for not remitting the case to the Examination Board for a new decision. These reasons allow the Appeal Board - rather than the Examination Board or the competent Examination Committee - to scrutinise the marks given for statement 4.1 of the appellant's examination paper and decide whether she is to be awarded a "pass" or a "fail" grade on the basis of the revised marking.
3.2 The appellant's answers to statements 4.2, 4.3 and 4.4 were correct. In accordance with the marking scheme for the pre-examination she was thus awarded 3 marks. Taking into account the correction with respect to statement 4.1 the appellant is given a total of 5 marks for question 4. The total marks awarded for the pre-examination thus rise from 68 to 70. Therefore, the appellant's paper is to be awarded the grade "pass" pursuant to Rule 6(2)(a) of the Implementing provisions to the Regulation on the European qualifying examination (IPREE, OJ EPO 2019, Supplementary publication 2, 18).
4. Furthermore, the appellant requested that her registration for the pre-examination of the European qualifying examination 2020 be cancelled and the examination fees be reimbursed. There is no legal basis for granting these requests, in particular the appellant's request for reimbursement of the examination fees in the event of her appeal being allowed in part or in full (D 24/17, point 14).
5. The appellant also requested accelerated proceedings and that she be given time to register for the main examination 2020. These requests are no longer relevant.
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The appellant's answer paper for the pre-examination of the European qualifying examination 2019 is awarded 70 marks and therefore, pursuant to Rule 6(2)(a) IPREE, the grade "pass".
3. The appeal fee is reimbursed.

Friday, 24 January 2020

Calendars for Pre-Exam 2020 available

The calendars for Pre-Exam 2020 are available on the EQE website.

The set comprises the calendars of 2019 and 2020.

Please be reminded that you need to use the calendars provided with the exam paper when answering - that version may (as you can see in the ones made available now) not have all "real" EPO closure dates, in particular it may lack bridging days such as at the end of the year, as well as 6 January 2020 (Epiphany/Heilige Drei K√∂nige, which used to be in the calendars).

Tuesday, 19 November 2019

Updates to our L- and P-books for EQE2020

Updates to our L- and P-books (edition July 2019, for EQE2020) are available reflecting legal changes that only became known after our Questions and Answers books were published, which supersede and/or supplemente some of the legal references (OJ, case law) in our books.

Please refer to our other post.

Tuesday, 12 March 2019

Pre-Exam 2019: the results are out!

The Pre-Exam 2019 results are out! They can be found here.

In the list, results for the pre-examination of the European qualifying examination 2019 are listed according to the EQE Registration Number (EQEReg).

The list also indicates that dispatch of the result letters is foreseen for 18 March 2019.  Only results as
notified to the candidates in the results letter are binding.

Pass rate

If my tools and myself did not make any errors, I come to a very high pass rate:

920 candidates enrolled
107 scored 0-69, 813 scored 70-100, so: 11,6% fail and 88,4% pass of all that enrolled.

880 candidates actually sat the exam. of these:
67 scored 1-69, 813 scored 70-100, so: 7,6% fail and 92,4% pass of all sitters.

Scores varied from 30 to 100. 10 candidates scored 100 out of 100; 383 scored 90 or more.

149 candidates that failed in 2018 enrolled for this year's exam; of these, 139 sat the exam, and scored in a range of 40 - 94 marks. Of the ones that sat, 84,2% passed (78,5% from those that enrolled).

Congratulations to all who passed!

Examiner's Report

The Examiner's Report is also available (here).

Our answers (legal and claims analysis) would have attracted full marks.

(Only) Statements 19.1 and 19.2 were neutralized. For 19.1 and 19.2, the arguments given in the Examiner's Report is:

Claim A.1 results from the combination of claims 1 to 4 as originally filed, and the feature of paragraph [003] last sentence. Claim A.2 is based on the combination of claims 5 and as originally filed. Therefore, the statements 19.1 and 19.2 are True.

However, there is a potential difference in scope between the wording in the description(e.g. paragraph [003] last sentence) and the wording of claim A.1 (“pass through” vs.“extending through”) in the English version. Also there may be valid counter-arguments inview of an un-allowed intermediate generalization. For this reason it was exceptionallydecided to award marks for both answers, True and False, for the statements 19.1 and 19.2.  

Tuesday, 26 February 2019

Pre-Exam 2019: our answers to the claims analysis part - washing compositions and composite structures

The cases

The claims analysis part started with an invention relating to a washing composition in the form of a tablet, described in a 1-page description. The washing composition comprises one or more detergents (surface active agents), one or more builders (help to keep the water soft), one or more bleaches (to destroy coloured dirt components), and, optionally a colourant. Ranges of amounts of the various components were given. The components are contained in separate layers: a first layer (all detergents), a second layer (all bleaches), and preferably a third layer in between those (preferably comprising only a builder). The application had no drawings.
A first claim set of 1 independent claim and 8 dependent claims (some of them multiple-dependent) was to be considered for questions 11 to 14. Two very brief documents D1 and D2 were given and expected to be used as prior art documents. 
D1 described two embodiments of washing tablets including, as usual, a detergent, a builder and a bleach; in the first embodiment, all ingredients are mixed together and compressed to form a tablet; in a second embodiment, the mixture is divided into two separate parts, forming two layers of the tablet. D2 proposes a washing tablets comprising three layers: a first layer with a builder and a bleach, a second comprising a builder and a detergent, and a third comprising a builder and a colourant.
Questions 11-14 were directed to clarity, scope, novelty, and extension of subject-matter. 
For question 15, a different independent claim was presented, and several inventive step-related statements were tested.

Pre-Exam 2019: our answers to the legal part

This year's legal part addressed several topics that were to be expected (such as time limits, time limit differences PCT-EPC, filing date requirements, languages, …) as well as several less standard topics which well-prepared candidates would have been able to find in their EPC/ reference materials/ Guidelines (who can speak at oral proc, transfers, inventors, recording changes). Some usual topics, such as divisionals and EP-entry, were missing. Partial priority was not tested.

Overall, the legal part was -in our opinion- more difficult than in the previous years, and we expect fewer candidates to score 45 marks or more from the legal part; however, 40 marks for the legal part seems well within reach for well-prepared candidates.

Our answers to the legal part:

Monday, 25 February 2019

Pre-Exam 2019: first impressions?

To all who sat the Pre-Exam today:
What are your first impressions to this year's Pre-Exam

Any general or specific comments?
Were the legal topics well balanced?
Were the various aspects of claims analysis well balanced?
Was the balance between EPC and PCT right for you?
Were recent changes and stable legal provisions tested in the right balance for you?
Were you able to finish the exam in the 4 hours available (without rushing more than expected)?

Which of the legal questions did you consider particularly difficult, and which relatively 'easy'?
How much time did you allocate for the legal questions, how much for the claims analysis part? Did you deviate from our original plan (for example, took more time for the legal questions than planned)?
Which part did you do first, the legal part or the claims analysis?
How many marks do you expect to have scored in the legal part, in the claims analysis, and for the whole paper?
What is your expectation of the pass rate and the average score?

How did this year's paper compare to the earlier pre-exams of 2015-2018 (assuming your practiced those) w.r.t. the pre-exam as a whole, w.r.t. the legal part and w.r.t. the claims analysis part? 

The paper and our answers
Copies of the paper are available in all three languages on the EQE website, Compendium, Pre-Exam

The core of our answers will be given in two separate blog posts: one for the legal questions and another post for the claims analysis 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!