Monday, 24 February 2014

Preliminary answers to the Legal Part of Pre-Exam 2014

Before checking your own answers with the provisional answers given below, please first check out on the thread  First impressions?  for general questions and comments about Pre-Exam 2014, and post your first impressions there.
The Claims Analysis part is discussed in a separate thread: Preliminary answers to the Claims Analysis Part of Pre-Exam 2014

To my surprise, in this year's Pre-Exam, the legal part had only 2 statements (out of 40) relating to the PCT (statement 1.4 and 9.3). This does not really do justice to the success of the PCT and the actual PCT-to-EP-direct ratio that the EPO has to deal with in real life, but I am quite sure that this low fraction was highly appreciated by the candidates ;-)

My preliminary answers (not yet thoroughly reviewed) are:

Q.1:  F, T, T, T;
Q.2:  F, F, T, F;
Q.3:  F, T, T, F;
Q.4:  F, F*, T, T;
Q.5:  F, F, T, F;
Q.6:  T, F, F, F;
Q.7:  F, F, F, T**;
Q.8:  F, T***, T, T;
Q.9:  T, T, F, T;
Q.10: F, F, F, F.

Any different opinions are welcome! Please post your opinions as comments to this blog, so everybody can from the discussion.
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.

For comments, legal basis and key considerations: click to read more.



* I have some slight doubt about -whether the Exam Committee  indeed expected- the 'F' for 4.2: according to R.70a(1) EPC and GL (2013) B-XI, 8, only commenting on the EESR, e.g. by arguing that the search examiner was incorrect in respect of the "several deficiencies" and that no amendments are necessary to satisfy the requirements of the EPC, would be sufficient (i.e., in that case, amendments do not seem to be "appropriate"; R.70a(1) however does not define who decides whether amending is appropriate or not). Also, R.70a(3) stipulates that the application is (only) deemed withdrawn if the applicant "neither complies with nor comments on an invitation under R.70a(1)". R.70a(3)and GL (2013) A-VI, 3 clarify -at least to me- that, to prevent a deemed withdrawal, amending to comply with R.70a(1) is not necessary, as long as you comment to the invitation. The Guidelines give no further guidelines as to how extensive these comments need to be, nor whether they need to address all deficiencies mentioned in the EESR. However, with the explicit facts that the EESR contained "several deficiencies", it seems not too unlikely that the exam committee considered it feasible that no amendments would be needed at all..., in which case the answer to 4.2 could be 'T'. 

** Further, 7.4 was a bit tricky, as it is not Art.87(1) itself (which only defines which applications can serve as a priority application for a subsequent EP application), but Art.66 together with Art.4 Paris Convention, whereby Mr.Brown enjoys a right of priority under the PC to file a later national application. 


*** As 8.2 literally cites the provision of R.6(1) EPC, the statement must be True. Note however that, if the translation is not filed within the 2m of R.6(1), the Formalities Examination will find that R.57(a) is not satisfied and the applicant will be invited under R.58 to correct the deficiency within another 2m. As R,58 allows to "correct the deficiency", the correct legal interpretation is that, indeed, the translation "shall" be filed witin 2m of filing EP-Z. Candidates who know how the translation regime works in practice (i.e., that there is a 2m requirement -from the filing of the application- to file the translation but that you effectively have a grace period of at least 1d+10d+2m - from the date on a letter from ther EPO), may rather unluckily have concluded that the answer is False - legally wrong, but in practice correct. I think this is quite unfortunately, and could have been prevented by a slightly different phrasing of the statement - e.g., as "Regarding EP-Z: if the prescribed translation is not filed within 2m of filing EP-Z, EP-Z shall be deemed tp be withdrawn".

Also see the thread First impressions? for general questions and comments about Pre-Exam 2014.

The legal basis and main considerations to come to the correct answers are given below (added Feb 25 morning to the original post of Feb 24 evening):


Q.1: 
1.1 F - R.135(2) excludes R.64 period from FP
1.2 T - Art.76(1), GL F-V, 11.1
1.3 T - Art.87(1), 12m expires April 2014, so still time
1.4 T - Art.8 PCT + Art.4C(1) PC, , 12m expires April 2014, so still time

Q.2:  
2.1 F - R.36(1)(a)&(b)
2.2 F - Art.76(1), GL C-IX, 1.4
2.3 T - R.51(3): due on 31/12/13, so within 4 m on filing div, so until 6/12/13 + 4m -> 6/4/14 (Sun) -> 7/4/14
2.4 F - Art.76(1) - div takes filing date of parent, so not prior art

Q.3:  
Art.87(1) EP1 f.d. + 12m: 11/1/13 + 12m -> 11/1/14 (Sat)  -> 13/1/14
3.1 F - in time, EP1 first appl for sjm X
3.2 T - EP1 does not disclose sjm Y 
3.3 T - EP1 is first appl for sjm X, not US1; Art.87(4) exception cannot be used (not for same state & EP1 pending when US1 filed); so pri not valid
3.4 F  - in time, US1 first appl for sjm Y

Q.4:  
16/10/13 + 6m [R.70(1)] -> 16/4/14 (Wed)
4.1 F - claims fees only at filing [R.45(1)] or close-to-grant [R.71(4)]
4.2 F - R.70a(1), R.70a(3) "or comments"
4.3 T - Art.94(1), Art.94(2)
4.4 T - R.39(2)

Q.5:  
5.1 F - R.51(1) gives due date 31/3/2013, not 2014 
5.2 F - R.51(2): 6m
5.3 T - Art.86(1)
5.4 F - R.135(2) excludes R.51(2) period from FP

Q.6: 
10/12/13 + 10d [R.126(2)] + 2m [R.71(1)] --> 20/2/14 (Thu)
6.1 T - also if earlier, you always have 10d according to R.126(2)
6.2 F - loss-of-rights is immediate under the EPC (however, PCT has such"deemed received in time" provisions - e.g., PCT R.16bis.1(d))
6.3 F - earliest possible expiry of FP period is 21/2/14 + 10d + 2m -> 3/5/14 (Sat) -> 5/5/14
6.4 F - not before loss-of-rights, but before expiry of original time limit [R.132(2), last sentence]

Q.7:  
7.1 F - Art.78(2); sanction is deemed withdrawal
7.2 F - Art.54(2): prior art is only "before"
7.3 F - GL A-II, 4.1 
7.4 T - Art.66 EPC, Art.4A(2) & Art.4A(3) Paris Convention

Q.8: 
Art.14(4); Ms De Jong is a Dutch national living abroad
4/2/14 + 1m [R.6(2), 1st sentence] -> 4/3/14 (Tue)
26/6/13 + 9m [Art.99(1); R.6(2), last sentence] -> 26/3/14 (Wed)
8.1 F - R.6(2): oppo period expires later than 1m, so translation until 26/3/14
8.2 T - R.6(1): "A translation under Art.14(2) shall be filed within 2m of filing the EP application"
8.3 T - R.6(3) [as in force until 31/3/2014)]
8.4 T - R.6(3)

Q.9: 
9.1 T - Art.54(2) EPC: "any other way"; GL G-IV, 7.5
9.2 T - available to the public via file inspection - Art.128(4) EPC
9.3 F - Ch.II documents confidential until IPER issued - PCT Art.38(1); AG-IP 11.074
9.4 T - oral proc in oppo are public - Art.116(4) EPC

Q.10: 
10.1 F - Art.83, Art.123(2); GL F-III, 2 (3rd sentence)
10.2 F - Art.100(b); GL F-III, 2 (1st sentence)
10.3 F - R.139 only for errors which are obvious and for which correction is obvious
10.4 F - R.137(1): not publication, but receipt of search report is earliest moment; also Art.67(1)

Any dissenting opinions are highly appreciated!

Roel

© Copyright DeltaPatents, 2014
All rights reserved. No part of this answer may be reproduced, used in any way for generating further course material or updates, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without written consent of DeltaPatents.
The answer is made available for personal use only.
 


63 comments:

  1. hey Roel,

    thanks a lot for your effort.

    How about Q.8.1, Could you please point out the legal base? I have the impression that the relevant legal base is A.14 and therefore I had the different answer.

    And for Q.10.4. I made the answer base on the guess. Your comment would be highly appreciated. Other than that, I have the identical answer with you.

    ReplyDelete
    Replies
    1. The legal basis id R. 6(2)

      Delete
    2. Dear Jimping and Yuliya,

      I added legal basis and key considerations to the original post (click on "Read more")

      8.1: legal basis is indeed R.6(2). However, R.6(2) does not only provide for 1m from filing the notice, but allows more time if the opposition period expires later.

      10.4: the question fails to indicate whether publication is before or after receipt of the search report - which information is strictly speaking needed to be able to answer the question... It is however clear that the Exam Committee wanted to test R.137(1): "no amendments before receiving the European search report"

      Delete
    3. Hi Roel,
      Why is 8.3 T that she is entitled a reduction in opp fee when she has not filed a reasoned statement of grounds in Dutch which I think is needed to get a reduction? Or do we suppose she did it or still have time.

      Delete
    4. Dear Fredrik,

      That is indeed needed, but that is also done: a notice of opposition includes the written reasoned statement of grounds (R.76(2)(c); GL A-X 9.2.4) - unlike a notice of appeal (Art.108, R.99(1)&(2); GL A-X, 9.2.5).

      See below for a more extensive discussion on this topic between Herrmada and me.

      Delete
  2. Dear Roel,

    thank you for posting your preliminary answers! Essentially my answers (I took the pre-exam yesterday) were the same with except to Q. 4.2. Reason: I have considered the statement as filing a compulsory reply to a negative EESR. But I agree with your explanations.

    Yuliya

    ReplyDelete
    Replies
    1. In the "First impressions?" blog, Herrmada commented:

      --
      I have to comments to the preliminary model answers by delta patents: Q 4.2: I think the intention here was to check wether the candidates know that the applicant has to reply to a negative extended EP search report (R. 70a(1) EPC). Since there are several deficiencies, I guess the correct answers is expected to be T, even though a mere reply may be enough. It is as always in the EQE: if you know more than expected you get driven off the expected answer.
      --

      Of course, we cannot be certain what the exam committee wanted you to answer, but amendments are really not required, although suggested by R.70a(1). R.70a(3) reads: "If the applicant neither complies with NOR COMMENTS ON an invitation in accordance with paragraph 1 or 2, the application shall be deemed to be withdrawn." [emphasis added]

      Let's wait until the Examiner's Report becomes available, unless somebody has some new views on this matter?!

      Delete
  3. In the "First Impressions?" blog, Herrmada commented (February 25, 2014 at 8:49 AM):

    Q8.3: to get a fee reduction the notice as well as the reasoning has to be filed in the admissible non-EPO language. Here, I also thought they might want to see if one knows that the notice is not enough, so I answered F.

    ReplyDelete
    Replies
    1. I responded (February 25, 2014 at 10:20 AM):

      Dear Herrmada,

      thx for your comments.

      I added legal basis and arguments to my Preliminary answers (http://pre-exam.blogspot.nl/2014/02/preliminary-answers-to-legal-part-of.html) and refer to that blog for the discussion on 4.2.

      8.3: you are correct that the "essential item of the first act" is the notice including the written reasoned statement of grounds - GL A-X, 9.2.4 & T 290/90. As it is indicated in the question that the (complete) notice is in Dutch, the reasoning is also in Dutch: it is part of the notice of opposition - R.76(2)(c)

      Delete
    2. To which Herrmada responded again (February 25, 2014 at 10:51 AM):

      Q8.3 only mentiones the "notice of opposition". There is no "complete". One would have to assume that (i) a reasoning is filed at all, and that (ii) this reasoning was filed in Dutch. I chose F, as this would lead to the minimum number of assumptions. Otherwise one would have to add information to the question. It would have been easy to clarify the question. However, by the mere fact that the notice is filed in Dutch does not entitle the opponent to a fee reduction.

      Delete
    3. I want to continue the discussion on this item in this blog:

      Dear Hermmada,

      Indeed the question does not explicitly indicate "complete", but -more importantly- the question also does not indicate nor give any hint that the notice is incomplete. Thus, there is no reason to assume that the notice does not satisfy R.76(2) - the notice thus includes the reasoning.

      Also note that G: A-X, 9.2.4 reads "the notice INCLUDING the written reasoned statement of grounds", and not "the notice TOGETHER WITH the written reasoned statement of grounds". The Guidelines can thus also not lead to a different conclusion.

      The situation would be different if the question would relate to a notice of appeal. Art.108 EPC requires a notice of appeal to be file within 2m and a statement setting out the grounds within 4m of notification of the decision. R.99(1)&(2) explicitly clarifies that the notice of appeal does not comprise the statement setting out the grounds. Thus, for appeal, the essential item of the first act is only the notice -GL A-X, 9.2.5- and can be just one or two sentence ("I [name + address] appeal against decision [number/date] in its entirety").

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

      Delete
  4. Dear all,

    I was also unsure about the correct answer to Q8.3. However, R 76 (2) EPC defines the expressions "Einspruchsschrift"/ "Notice of Opposition". Thus, it seemed clear to me, that the "Einspruchsschrift"/ "Notice of Opposition" had to include the reasoned Statement (cf. R 76 (2) d): a statement of the extent to which the European patent is opposed and of the grounds on which the opposition is based, as well as an indication of the facts and evidence presented in support of these grounds;)
    There is no further indication in Q8.3 that any of R.76 (2) (a) to (d) would be missing. Thus, Q8.3 should be True.

    Please note: In my opinion Q8.3 was more clear in the German version compared to the English version as R 76 (1) uses "Einspruch" and R 76 (2) defines "Einspruchsschrift". In the English version for both, R 76 (1) and (2), "Notice of Opposition" is used.

    Cheers,
    Chris

    ReplyDelete
    Replies
    1. Hi Christian,

      Indeed, R.76(2)(c) --not (d)-- requires the reasoned statement to be in the notice of opposition itself, and, thus, 8.3 is T.

      Also refer to the discussion above between Herrmada and me.

      Roel

      Delete
  5. I would like to know your opinion about the following point, concerning Q2: according to the question, the divisional EP-D comprises claims that contain subject-matter not originally disclosed in the parent EP-P. This means that EP-D does not - on filing - fulfil the requirements of Art. 76(1), because it extends beyond the contents of EP-P. Accordingly, the divisional EP-D shall NOT be deemed to have been filed on the date of filing of the parent EP-P, because the conditions for the last sentence of Art. 76(1) do not apply, and must be regarded as having been filed on 6.12.2013. Since EP-P was published on 13.6.2013, EP-P validly belongs to the state of the art. It seems that you decided differently: could you comment? Thank you.

    ReplyDelete
    Replies
    1. Hi Ale,

      A divisional either gets the filing/effective date the parent, or -effectively- no date at all.

      See GL A-IV, 1.2.1: "A divisional application filed in due form, i.e. meeting the requirements of Art. 80 and Rule 40(1) (see A-II, 4.1 et seq.), is accorded the same date of filing as the parent application. The question of whether it is confined to subject-matter contained in the parent application is not decided until the examination procedure (see C-IX, 1.4 et seq.)."
      and
      GL C-IX, 1.4: "[A divisional] cannot be converted into an independent application taking its own filing date. Moreover, a further divisional application for this additional subject-matter should also be refused under Art. 97(2) due to non-compliance with Art. 76(1)."

      Delete
    2. I think this is simply a bad question. The application arguably "effectively" has no date at all, but that was not the question. The question asked about the date it was *deemed* to have. It must be deemed to have a date, or it can't be treated as a European patent application. It cannot have the earlier date as the application has gone to the examining division and you've been told you've gone beyond the content of the parent. But there are no provisions for it to take its "own" date either. (However, note that the guidelines only say you can't **convert it into an independent application** having its own date - then you have to ask whether it is meaningful to talk about an application that *is* a divisional, but takes its own date... not explicitly precluded by the EPC/guidelines afaik, but frankly quite ridiculous as all of this is irrelevant because in reality you either remove the extra subject matter and get given the earlier date, or it's refused. What happens in terms of the consequences for prior art, which depends on the filing date, is also irrelevant. You either remedy the problem and get given the earlier date or you don't. And at the end of all of this, you can argue about what the date must effectively be, or how you must interpret the meaning of having (or deeming something to have) a filing date, or all the angels on all the pinheads you like. If the answer is "strictly the answer's false, because although it isn't deemed not to have a date, it isn't deemed to have a date either, so it's just in a weird quantum superposition of having a date and not having a date", you're just wasting everybody's time.

      Delete
    3. Dear Jenny.

      I agree that the question is a bit awkward, but it is not at all a bad question.

      First of all, the Guidelines are very explicit: GL A-IV, 1.2.1 says "A divisional application filed in due form, i.e. meeting the requirements of Art. 80 and Rule 40(1) (see A-II, 4.1 et seq.), is accorded the same date of filing as the parent application."

      Further, the deficiency that the divisional extends beyond the content of the parent application can be overcome during prosecution of the divisional, as also other substantive defects can be repaired by amendment - see G1/05, hn: "So far as Article 76(1) EPC is concerned, a divisional application which at its actual date of filing contains subject-matter extending beyond the content of the earlier application as filed can be amended later in order that its subject-matter no longer so extends, even at a time when the earlier application is no longer pending. Furthermore, the same limitations apply to these amendments as to amendments to any other (non-divisional) applications."

      Also, the question explicitly tests whether candidates are aware that neither the complete divisional, nor the added matter, gets a new filing date - which is an error that many candidates make in the main D paper every time it is tested!

      So:
      1) the subject-matter of the divisional has a date, which is the filing/effective date of the parent;
      2) all subject-matter that does not satisfy the requirement of Art.76(1) is to be deleted from the application, else the application will be refused.

      Delete
    4. The question explicitly states that it is referring to the present time. The application can be amended later to fix the problem, but *at the time* (as referred to in the question) of receiving the first communication from the examining division, the application still contains subject matter beyond that of the parent, and therefore in accordance with Art 67(1) at that time won't get the earlier filing date, unless the EPO is clairvoyant. You might argue that the EPO retrospectively accords the filing date, but then you're getting into linearity of time, causality and many worlds theory territory, and we're back at angels on a pinhead, because in the timeline I'm living in, none of that has happened yet. Consider this alternative question that highlights my gripe with this question: If the application in the question carried on through prosecution, and the applicant refused to delete the added matter, what was the filing date of the application on the date of the pre-exam? It cannot be the earlier filing date; the added matter was never deleted.

      Delete
    5. Dear Jenny, please read the citation from GL A-IV, 1.2.1 that I gave above again, and without prejudice: it exactly relates to the situation 'now'. I am not going to repeat the further argumentation...

      Delete
    6. Also, you appear to cherry-picked passages from the Guidelines to support your assertion regarding the filing date. I copy below the paragraph immediately preceding the paragraph you have quoted:

      A European divisional application may be filed in respect of subject-matter which does not extend beyond the content of the parent application as filed. Provided this requirement is met, the divisional application is deemed to have been filed on the date of filing of the parent application and enjoys that application's priority (see A-IV, 1.2.2).

      Immediately following the portion you have quoted:

      The question of whether it is confined to subject-matter contained in the parent application is not decided until the examination procedure.

      In the question, the first communication from the examining division has been received.

      At best, this is not a meaningful question to ask - demonstrated by the fact that I know exactly what happens to a divisional when the Applicant won't delete added matter, and what happens when they do, and that I still think the answer to this question is a) not clear and b) not relevant.

      This question is NOT asking candidates 'what happens to a divisional application when there is added matter and the Applicant won't delete it?', it is asking 'what is the filing date deemed to be when the application is in limbo between the Applicant deleting the added matter or the EPO finally concluding that the Applicant never will and refusing the application?"

      It is not a meaningful question, and the answer - insofar as it is dealt with at all in the EPC and guidelines - is not meaningful, not defined, and not relevant.

      PS I'm not meaning to put you personally on the end of a rant! To be clear, I very much appreciate your work, in particular with responding to comments.

      Delete
    7. Hi Jenny, why is it relevant what the filing date of the deficient divisional application is, if the application will anyhow be refused because it extends beyond its parent?

      Delete
    8. Daar Jenny, I highly appreciate the discussion, but I don't think I am cherry picking or do selective/suggestive citations from the GL. I rather tried to cite two GL paragraphs in the above to clarify how the EPO interpretes Art.76(1) w.r.t. filing & priority = effective dates. I would also have phrased the question/ statements differently; however, I believe the questiin/ statements to be legally correct and unambiguous. Can we agree that the True/False answers must be as I have indicated? Regards, Roel

      Delete
    9. Anonymous - Thank you for underlining my point *perfectly* - it's NOT relevant. But for the exam it's relevant because the question was asked! It asked us about what the filing date was deemed to be, so we have to come to some sort of conclusion about what it is while the application has neither been amended to deleted the extra matter but has also not been refused. It is not a meaningful question and does not test the relevant knowledge. And as I've pointed out above, there are explicit provisions in the EPC and guidelines that state:

      1) If you've got added matter, you don't get the earlier date, but that this is only decided at examination (which in the question has occurred);

      2) If you delete the added matter you get the earlier date (but it hasn't been deleted yet);

      3) If you don't delete the added matter the application will be refused (but that hasn't happened either yet); and

      4) You can't convert the divisonal into an independent application having its own filing date (not relevant to the case in question - no one's trying to turn it into anything, we're just waiting for the applicant to decide whether or not s/he's oging to dlete the added matter).

      The one thing it doesn't say is what happens to the filing date while the application is in limbo.

      The rule people seem to be applying here - that a divisional subject matter never gets the date of submission as a filing date - is not a principle laid down in the EPC, but a *consequence* of the fact that if you don't sort out the added matter the application gets killed. There's no way to end up with a divisional where the subject matter gets the later filing date because of the principle the added matter=refused. But what happens to the date in the meantime is not defined in the EPC/guidelines as illustrated by points 1 - 4 above, and as you have pointed out, is not relevant. Hence my comments on this being an inapproriate/irrelevant question.

      Delete
    10. Hi Roel - yes, I agree with the answers.

      If you're "playing the game" and think "oh, they want to test the divisional filing date thing, ooh, ok then, I'll tick false!" then you'll do fine.

      Likewise, if you follow the actual questions asked to its final logical conclusion, which is that the EPC doesn't actually define the date because it's pointless, meaningless and irrelevant because your only options are delete the added matter or lose the application, and therefore tick false because no answer to that question really has any meaning, likewise, you'll do fine.

      What this question doesn't do is take the candidate to the point where they need to appropriately apply their knowledge of the EPC to say something meaningful about the fate of divisionals.

      So in summary, I agree with the answers you have given. But I maintain that it's a shoddy question. :)

      Delete
    11. Hi anonymous of Feb 25, 9:26 PM. Let me call you mr.X... The filing/priority date of the subject matter in the divisional that is directly and unambigously derivable from the parent is relevant for accessing the state of the art against the divisional's claims. Also, it is relevant for the Art.54(3) effect of the divisional agaist other EP applications (if the div gets published). The added matter cannot be assessed for novelty, as it does not have valid date - Art.76(1). The added matter does however become Art.54(2) prior art from the date of it becoming published in the publication under Art.93 of the divisional if not yet amended out at that time, and/or from being present in the file of the divisional (at least as the 'divisional application as filed', also when amended out before its publication) as that opens when the div gets published.

      Delete
  6. >> "which is an error that many candidates make in the D paper every time it is tested!"

    If this is how the EPO is testing it, I'm not surprised.

    ReplyDelete
    Replies
    1. Jenny, please make sure not to make the error in the DII-part or in paper C when setting the main exam next year. Assigning the date of submitting the divisional as the effective date to any of its subject matter is never correct, not for matter that is present in its parent, and also not for subject matter added in the divisional as filed that extends beyond the parent.

      Delete
    2. I'm not saying I think that the subject matter gets that effective date. I'm saying the EPO have done a bad job of preparing a question that actually tests a candidate's knowledge of the relevant provisions. At best, this question tests whiether a candidate has had it drummed into them to always say "never gets date of submission, never gets the date of submission" in response to any question about divisional filing dates, rather than actually applying their brain. Anyone who applies any sort of reasoning to the question *actually being asked* - what is the filing date deemed to be after examination but before any response - will be met with contradictions fom the two paragraphs of the guidelines we have both quoted above.

      Delete
    3. Dear Jenny, please see my comment of 3 minutes ago to your other comment above. Kind regards, Roel

      Delete
    4. I do not want to argue with anyone: after all, I consciously asked the question that gave rise to this thread or topic because I am also convinced that the question is badly formulated and, in all honesty, I applied exactly the same reasoning Jenny expounded because of the way the question was worded.
      I also have to add that I often have the feeling that these questions are not meant to test any knowledge at all: they seem to be puns or "verbal tricks" that you are supposed to answer not by applying any kind of legal knowledge or any logical reasoning: you are supposed to follow a Pavlovian instinct and reply as the examiner expects you to reply. It is a bit frustrating, I must say. Anyway, thanks to Jenny and Roel for the exchange of opinions.

      Delete
    5. Dear Jenny, Ale and all others,

      Careful reading is -unfortunately or not- an essential aspect of any exam. In the pre-exam, formulation of the question and statements, as well as reading and understanding what you read / what is really asked, is even more critical as you can only answer True or False; any misinterpretation and misunderstanding, as well as any unexpected different interpretation, whether really wrong or reasonable/ acceptable if you had the possibility to make your interpretation explicit.
      I think the exam committee does a very good job in making the questions and statements as unambiguous as possible (in my personal opinion, this question on filing date of an Art.76(1)-violating question is very relevant and the phrasing of the statements is unambiguous, although a bit awkward - It stays however close to the wording used in the GL, which is probably on purpose and meant to help the candidates -.)
      The good news is that -assuming you passed the pre-exam- you will have more chances to score marks with unexpected reasonings that are correct, but not perfect, in next year's D. In D, drawing the wrong conclusion (yes instead of no) at the end of a 10-step argumentation because of a misinterpretation at step 9, has quite a chance to be awarded with 80% of the marks. But also in D, every word in the question / paper is carefully choosen, so needs also careful reading with correct interpretation of the (relevance of the) information given and of the EPC and PCT.

      Roel

      Delete
  7. Dear Jenny,

    Imho you interpret more into the question than there really is. I agree with you, if the question were "what is the filing date?", it would be a inapropriate question. However, the question was more like: "Can a divisonal application ever have the date of filing as a filing date?" Which you correctly answered as "no it can't". There is not more to interpret into the question. Hence, it is not irrelevant because this is an important aspect of divisonal applications.

    ReplyDelete
    Replies
    1. Dear Peter,

      If you do not want to read the long discussion above between Jenny and me: I agree.
      See also my response (Roel van Woudenberg; February 25, 2014 at 10:11 PM) to the comment of Anonymous of Feb 25, 9:26 PM (Mr X).

      regards, Roel

      Delete
  8. could you please double check Q6.3 with your reply: "F - earliest possible expiry of FP period is 21/2/14 + 10d + 2m -> 3/5/14 (Sat) -> 5/5/14". In my paper, the comm was sent on 10/12/13, leading to FP time limit being 10/12/13 + 10d + 2m -> 20/02/14 (Thursday, last date to reply) + 2m -> 20/04/14 (Easter sunday) -> 22/4/14 (Tue after Easter Monday)

    ReplyDelete
    Replies
    1. Please use your name, or a nickname...

      The communication of 10/12/13 is NOT the loss-of-rights, but a Art.94(1), R.71(1) communication by the Examining Division.

      Delete
  9. o.k. Q6.3 - F is correct, as you still have time to wait for a l.o.r communication.

    ReplyDelete
    Replies
    1. Indeed, as the last day to respond to the Art.94(3), R.71(1) communication of 10/12/13 is 20/2/14, the first possible day that the EPO can detect that you missed the time limit is 21/2/14 (as you have until midnight). So, the loss-of-rights communication under R.112(1) will be dated 21/2/14 at the earliest.
      If it is dated like that, the FP period expires 21/2/14+10d+2m-> 3/5/14 [R.131(4)] -> 5/5/15 (Mon), when the EPO is open according to the Calendars provided at the exam (and also according to OJ EPO 2014, A9)

      Delete
  10. Hi,
    I am a little late to the party here but just checking if anybody thought 8.3 and 8.4 should be "F". I read the relevant provisions as the reduction in both fees only applying if the translations into an EPO language were filed. As the question does not state that translations were actually filed, I opted for "F". What have I missed here?

    ReplyDelete
    Replies
    1. Hi Kingkong,
      I am very happy you made it to the party, even though a bit late.
      Actually, R.6(3) itself does not require you to file the prescribed translation to be entitled to the fee reduction if you strictly take the provision as such - R.6(3) only refers to Art.14(4) in respect of the type of person. The requirement to file a translation to make sure that the document is not deemed not to have been filed is in Art.14(4) and applies independently of the fee payment.
      Further, there is still time to file the translations as hinted to by 8.1 and 8.2, so it seems quite reasonable to assume that they will be filed in time.
      Roel

      Delete
    2. Thanks for the reply Roel. I think I misread some of the commentary after R6(3) in my textbook which made me think the translation must be filed. I actually changed from "T" to "F" in the exam. Should have trusted my instincts.

      Delete
    3. Hi KingKong,

      I feel sorry for you that you changed it n- hopefully this is only one of few errors, so you pass without too big problems.

      Thanks for your positive feedback as to my comments and for admitting that your instrincts give better answers that your unfortunate misreading of the textbook you were using.
      Many other candidates actually continue defending their wrong answer, and sometimes even take an unreasonable position when their wrong answer is based on their interpretation error, or such an unusual interpretation that no tutor nor the Exam Committee can understand and/or accept that interpretation...
      The aim of blogs like this is to make people learn what they did wrong and how they can improve, both substantially (not enough legal knowledge) as procedurally (way of studying, approach of the exam paper, methodology as how to come to an exam answer, time management), by letting other candidates and tutors give feedback to their comment/ answer/ question.

      But the rest of this weekend, I will use my free time as free time, especailly as it is Carnaval in at least Eindhoven and Munich!

      Delete
  11. So, the Examiners Report is out and they differ in 10.4 from your answer...

    ReplyDelete
    Replies
    1. Yes, indeed, it is different. But...

      Statement 10.4 reads "Before the publication of EP-T, it is not possible to amend the description of EP-Tin order to delete embodiment X1."

      The Examiners Report indicates that the statement should be considered "True", because:

      "Even if the applicant filed amended application documents with the EPO before the termination of the technical preparations for publication, only amended claims would be included in the publication but not an amended description, Rule 68(4) EPC."

      We fully agree that even if embodiment X1 would be amended out before technical preparation are completed, the publication of the application will still include this embodiment X1.

      However, neither the question itself (the text describing the case), nor statement 10.4, includes “to prevent X1 to be contained in the publication” or a similar phrase. Statement 10.4 merely addresses when amendments can be done. R.137(1) –together with R.70a(1)/(2)- specifies that amendments can be done as soon as the search report is received by the applicant. As the question does not give any hint that the search may be completed late (no formal objections, no statement of priority being claimed), and candidates are considered to stick to the facts of the questions (and standard practice) it may be assumed –in our view- that the search is conducted at the standard speed applicable for first applications (i.e., under PACE even if not requested; OJ 2010, 352, section 3) – so that the European search report is completed and send to the applicant (R.65 EPC) well before publication.
      Thus -in our opinion-, with the facts available and with the statement as it is, it is possible to amend before publication.
      That this does not affect the content of the publication is not relevant for the statement given -in our opinion-, also not in the context of the question whereto the statement relates.

      Christian, what is your opinion?
      Other candidates and tutors: what are your thughts and conclusions?

      Delete
    2. I completely agree with you. It is possible to amend before publication, and that is what the the statement concerned (in my humble opinion).

      /Karina, candidate (who passed)

      Delete
    3. I had 69% for my pre-EQE and I will try to make an appeal. I know that I have very low possibility to succeed but I think that I need to try to get this missing point !

      For exemple, For Q 10.04 , I answer like you but not like the examining division. However, it would be nice of you if you can give me some tips to prepare my arguments.

      I have also this problem for question 18.4.

      I hope that you can take a little time to answer to my request. If you prefer, I can also give you my opinion that had already but I prefer to have a external view on my arguments.

      I will also understand if you won't give your opinion. But loosing just for one point is very difficult !

      Thank you beforehand for your understanding,

      C

      Delete
    4. Dear Mr or Mrs C,

      We got a similar question from another candidate by email last Wednesday (April 2). He wrote (anonimized by me):

      --
      Dear DeltaPatents,

      Today I got my results of the EQE Pre Examination 2014. My score is 68 point so I did not pass the exam.

      But I disagree with the examiner’s report regarding question 10.4. I can see in your preliminary answers to the Legal Part that you also can not follow the examiner’s report.

      Do you see any chance to assure the EPA of changing the official answers?

      M
      --

      Delete
    5. Filing an appeal is possible, but whether it is recommended may be doubted in view of the the uncertainty of the outcome, the time it may take until a decision, the fee, and more "soft" things effort needed, (emotional) energy and distraction from preparing for resitting the pre-exam and/or preparing for a main exam paper. Resitting the pre-exam in 2015 may cost less time, effort, money, ..... And as it is not at all certain that a decision is issued before EQE2015, waiting for the decision may even result in you not resitting pre-exam 2015, in which case you can only resit the pre-exam in 2016 in case the decision is not to your advantage.
      Also be reminded that passing the pre-exam is not an objective as such: the real objective of the pre-exam is to let you start studying early so that you are at a first step on the staircase to main exam level - whether you are at that level of passing depends on a single (possible debatably wrong) answer can be doubted -- you got at least another 15 - 24 statements out of 80 wrong... (yes, I acknowledge that the pass level should not be effectively 2 marks higher which would be the case if the answer considered True is actually False and it is not decided to correct this and remark according to the corrected answer - or to consider both True and False correct for the statement...)

      The REE and IPREE (see http://www.epo.org/law-practice/legal-texts/official-journal/2014/etc/se2.html) provide for a possibily for appeal.

      Delete
    6. REE Article 24 - Appeals
      (1) An appeal shall lie from decisions of the Examination Board and the Secretariat which adversely affect the appellant, but only on the grounds that this Regulation or any provision relating to its application has been infringed.
      (2) Notice of appeal including the statement setting out the grounds for appeal must be filed in writing with the Secretariat within one month of the date of notification of the decision appealed against. Notice of appeal shall not be deemed to have been filed until the fee for appeal specified pursuant to Article 17 [currently, EUR 1.200] has been paid within the period of one month specified above.
      (3) If the Examination Board or the Secretariat considers the appeal to be admissible and well-founded, it shall rectify its decision and order reimbursement of the fee for appeal [-- so, if successful by interlocutory revision, you get your fee back --]. If the appeal is not allowed within two months from notification of the decision, it shall be remitted to the Disciplinary Board of Appeal of the EPO. Notwithstanding Article 10(1) of the Regulation on discipline for professional representatives, the Disciplinary Board of Appeal shall take its decision in a composition consisting of two legally qualified members of the EPO and one professional representative. The Chairman shall be a legally qualified member.
      (4) Part IV of the Regulation on discipline for professional representatives shall apply mutatis mutandis to the procedure before the Disciplinary Board of Appeal. If the appeal is admissible and wellfounded, the Board of Appeal shall set aside the decision appealed against. If the Board of Appeal allows the appeal, or the appeal is withdrawn, it shall order reimbursement in full or in part of the fee for appeal if this is equitable in the circumstances of the case. appeal [-- so, if you withdraw the appeal BEFORE a decision is made,or if the appeal is successful by interlocutory revision and your fail is changed into a mark, you get your fee back --].
      (5) The lodging of an appeal shall not suspend the decision against which the appeal has been lodged. [-- so, you will have a fail as long as no decision is taken, and you cannot only sit the Main Exam 2015 if the decision is taken before the Main Exam AND the decision reverses your fail into a pass --]

      IPREE Rule 9 - Appeal fee
      Pursuant to Article 24(2) REE, the appeal fee shall amount to 600% of the basic fee
      So, as the basic fee EUR 200 [OJ 2012, 210] , the appeal fee is 600% * EUR 200 = EUR 1200

      Delete
    7. So:
      if you want to appeal, it should be done within 1m from the notification of the decision.

      The appeal has two steps:

      1) the Examination Board will look at your appeal. If you raise credible arguments then they will look at it again.
      => they have about 2 months to do this
      => they will consider seriously your arguments, but they are difficult to persuade.

      2) if they are not prepared to change their decision, the case is sent to the Disciplinary Board of Appeal.

      => earlier cases that we know of, took at least another year to deal with the case, so most candidates just do the exam again
      => in our understanding, you can only win with the Disciplinary Board of Appeal if you can show that the Examination Committees and Board did not follow the procedural rules when marking your paper. In our understanding, you will not win with arguments about whether your answer should also have been right once your case is at the Disciplinary Board.

      Thus:
      if you want to appeal and get a decision well in time to not jeoprardize your preparation for EQE 2015 (resitting the Pre-Exam, or moving on to the Main Exam), we could recommend that you look at all the questions you missed to see if there is some unclarity, and file these comments with your appeal. Particularly for the claims analysis part, interpretation of documents is not always clear.
      Also check the points calculation based upon the official answers to make sure it has been added up correctly.

      Also indicate that if the Examination Board is going to send it to the Disciplinary Board, that you withdraw the appeal.

      That way you can have a decision within a couple of months.

      Our experience is that those who are involved in a pending appeal before the Disciplinary Board find it very difficult to do the exam again. It is sometimes difficult to move forward when you have the hope that you can still pass retroactively.

      Delete
    8. Note: See below for an extensive argumentation as to why 10.4 is "False"

      Delete
    9. One correction to the above remarks on reimbuirsement of the fee:

      Art.24(3) REE If the Examination Board or the Secretariat considers the appeal to be admissible and well-founded, it shall rectify its decision and order reimbursement of the fee for appeal
      --> so, if successful by interlocutory revision, you get your fee back

      (4) [...] If the Disciplinary Board of Appeal allows the appeal, or the appeal is withdrawn, it shall order reimbursement in full or in part of the fee for appeal if this is equitable in the circumstances of the case.
      --> so, if you withdraw the appeal BEFORE a decision is made,or if the appeal is successful, you may not get your full fee back, but only PART of it, or nothing at all, depending on the extent to which "this is equitable in the circumstances of the case".
      There is no further general guidance available about the criteria for a full or partial reimbursement, neither of the possible amounts of partial reimbursement.

      Delete
  12. Today, the Examiner's report was published on the EQE website.

    It gives the following answers:

    Q.1: F, T, T, T;
    Q.2: F, F, T, F;
    Q.3: F, T, T, F;
    Q.4: F, F, T, T;
    Q.5: F, F, T, F;
    Q.6: T, F, F, F;
    Q.7: F, F, F, T;
    Q.8: F, T, T, T;
    Q.9: T, T, F, T;
    Q.10: F, F, F, T.

    Q.11: T, T, T, T;
    Q.12: F, F, F, F;
    Q.13: T, T, F, T;
    Q.14: F, T, F, T;
    Q.15: F, F, F, F;
    Q.16: T, F, T, T;
    Q.17: T, F, T, F;
    Q.18: F, F, F, F;
    Q.19: F, F, F, F;
    Q.20: T, F, F, F;

    and differs from our answers for statement 10.4, 18.4 and 20.2.

    We would thus have obtained a score of 94 marks - not too bad!

    We must admit that 7 candidates scored higher in the Pre-Exam itself (one scored 98; 6 scored 96), and another 24 candidates also 94 marks.
    It would be interesting if those (1+6+24=31) candidates would share with us, and with our blog readers, which statements they had different from the Examiner's report, and to exchange our views on those! Please comment!

    Statement 10.4 is discussed in the comments to our legal post - http://pre-exam.blogspot.nl/2014/02/preliminary-answers-to-legal-part-of.html
    Statements 18.4 and 20.2 are discussed in the comments to our claims analysis post - http://pre-exam.blogspot.nl/2014/02/preliminary-answers-to-claims-analysis.html.

    Feel invited to contribute to the discussion!

    ReplyDelete
    Replies
    1. See above for the discussion on 10.4 as well as some discussion as to whether or not the answer could be challenged and a request for remarking based on a succesfully challenged answer could have any chance to succeed. In short: we cannot answer this conclusively, but we expect it to be difficult to succeed via an appeal if there is disagreement on any answer(s).
      However, some statistics as to how many candidates answered "False" for statement 10.4, and especially also for how many candidates this was in particular elevant failed, i.e. those who failed because of a different answer to 10.4, would be interesting to see.
      Note in this respect that 9 + 12 = 21 out of all 648 candidates that sat the Pre-Exam got 68 or 69 marks.

      Delete
  13. Let me give a more extensive reasoning as to why we consider statement 10.4 to be “False”.

    I think that the Exam Committee (wrongly) considers the answer to be “True” based on the (in itself correct) fact that only amended claims will be published but not an amended description if amendments are filed by the applicant after having received the search report but before (completion of technical preparations for) publication of the application, such that embodiment X1 will always be part of the publication of EP-T. This is however not what the statement says..

    R.137(1) unambiguously defines that you may not amend before receiving the European search report (SR).

    If the SR is available to the EPO before the termination of technical preparations for publication, the SR will be included as an annex to the publication of the application – the A1 publication.
    As you will receive the SR immediately after it has been drawn up –R.65-, you will then have received the SR before technical preparations are terminated. So, you can do amendments before completion of technical preparations, and also in the (approximately) 5-week [R.67(1); OJ 2007 SE3, D.1] period between completion of technical preparations and the actual date of publication.

    Thus, if the SR is published together with the application (R.68(1); A1 publication – the usual situation where the EP application is a first filing, i.e., is an application not claiming priority and thus autiomatically under the PACE regime), you can file amendments well before publication – also see R.68(4), second sentence.

    The amendments may be of own volition (R.137(2)), so may comprise or even exist solely of a deletion of embodiments from the description - irrespective whether the EESR (SR+WO) raised any objection w.r.t. the embodiment. The search opinion will also give the applicant the opportunity "to amend the descriptions, claims and drawings" - R.70a(1), which can be before publication if the search report is timely available.

    Amendments may comprise –or entirely consist of- a deletion of an embodiment [“embodiment X1”] that “lacks essential technical information and is therefore not sufficiently disclosed” from the description and/or the claims. As confirmed by G2/10, embodiments may as a rule be amended out as long as other embodiments remain (as is the case here).

    It is thus “to possible amend the description of EP-T in order to delete embodiment X1 before the publication of EP-T”.

    Thus, statement 10.4 (“Before the publication of EP-T, it is not possible to amend the description of EP-T in order to delete embodiment X1.”) is False.
    It would have been “True” if it would have read “Before the publication of EP-T, it is not possible to amend the description of EP-T in order to prevent embodiment X1 to be included in the publication”; this is however an essentially different statement than statement 10.4.

    The correct answer to statement 10.4 should thus be “False”, different from the answer “True” that the Exam Committee considers correct.

    I would consider it fair if the marking would be adapted so as to consider “False” as well as “True” to be correct as answers to statements 10.4. Reasons to also consider it just to accept the wrong answer “True” as correct, are that it is a legal principle that decisions (that candidates passed) cannot be overturned once issued, as an incorrect decision need to be maintained if no appeal is filed, and it could also be considered to violate good faith if candidates that passed with 70 or 71 marked would suddenly be confronted with a fail – something which they can reasonably expect not to happen.

    ReplyDelete
  14. I answered TRUE because it is only possible to file amendments at the start of examination, together with paying the examination fee.
    This is always after publication, as the period for paying the examination fee starts with the publication of the search report and then runs for 10 days plus six months.
    If the publication of the application also contains the search report, it is thus only possible to file amendments after publication of the application.
    If the search report is not ready in time, it will be published separatelty later and the period starts even at a later date than the publication date of the application without the search report.
    The period in whih you can file amendments can thus never start before the publication, so I answered TRUE.
    I donot understand why you say it starts earlier?
    (But I donot mind too much why, as my answer was considered TRUE and I passed with exactly 70 marks!)

    ReplyDelete
    Replies
    1. You are lucky that the Pre-Exam uses True/False statements and does not require (and not even allows) arguments to justify your conclusion.

      Your argumentation is very very wrong, as substantially none of your arguments is correct:

      there is no provision in the EPC that amendments can only be filed at the start of examination - this is a wrong interpretation of R.70a and R.137(2). Amendments can be filed after having received the search report - R.137(1)

      There is no 10-days for deemed notification in calculating the 6m period for payment of the examination fee / requesting examination / response to negative opinion or voluntary amendments / designation fee.

      Further, it is possible to request examination and to pay the examination fee before publication and before the search is done/completed, e.g., already upon filing - R.70(2) provides for an "indication to proceed" in such case, allowing you to let the application become deemed withdrawn and get your examination fee refunded if you donot want to proceed with the application in view of a disasterous search report

      Delete
  15. Dear Mw Woudenberg,

    I am one of the candidates who scored 68 and who answered the question 10.4 as False.
    I will probably appeal my examination result.
    But before, I want to ask your personal opinion. What is my chance to get a decision from interlocutory revision?
    Do you know Commitee’s opinion about the case? They will be prepared to change their decision when I filed my appeal?

    Best regards, B

    ReplyDelete
    Replies
    1. Dear Mr or Mrs B,

      That's really sad.

      It is more or less excluded that the Examination Board will change the official answers and review all candidates' papers (or at least the ones from candidates having scores of 68 and 69) at own motion: the general principle is that a Board/Division cannot change the decision after they have taken it (principle of res judicata). So, miracles are very unlikely to happen...

      Unfortunately, we do not yet know what the Examination Board or Pre-Exam Committee thinks and what position they will take. May depend on how much people appeal.
      For main exam papers, our impression is that winning an appeal on substantive matters is (always was) difficult – there, the Committee already did a check if you got 43 or 44 marks, and awarded you 1 or 2 marks from to get a COMPENSABLE FAIL more if they considered you fit to practice based on the answer as a whole, but did not do so if you gave a different impression (e.g, where you made serious errors with priority or if you gave the impression not to know what rights a patent gives you) (similarly at 48 or 49 to get from a COMPENSABLE FAIL to as PASS. Thus, if got 43 or 44 in the main exam, you were already reviewed before the decision was issued.
      For the Pre-Exam, they cannot do it: True is True and False is False (as long as the Committee/ Examination Board does not award full marks for both True and False in unambiguous questions).

      So, I really do not know whether interlocutory revision will be succesful. I can only recommend to file a well-substantiated appeal, consider to conditionally withdraw if interlocutory revision is not successfull + request full reimbursement of appeal fee (although, if after remittance to Displ.Board, the REE/IPREE goves no guarantee that you get the full fee back after withdrawal).

      Regards, Roel

      Delete
    2. see my post on the claims analysis blog: appeal period expires 7 May (assuming that also your décision was dated 28 March). Do not forget to include a conditional request for oral proceedings. Do not do a conditional withdrawal the way Roel suggested just above, but wait until you get a provisional opinion from the Disciplinary Board. If you withdraw after that, I expect you to get the complete, or most of, the appeal fee reimbursed (request it!). Good luck, D

      Delete
  16. The Disciplinary Board ruled on 22 July in four appeal cases -D 2/14 (German), D4/14 (French), D5/14 (German), D6/14 (German)- that statement 10.4 should be answered with "False": As of today, no other decisions as to Pre-Exam 2014 have been put online - I do not know whether more are pending (or taken).

    The decisions are very similar in substance. The whole decisions are worthwhile reading, as they do not only address what the answer to 10.4 shall be, but also address the (limited!) competence of the DBA in appeals against (Pre-Exam) EQE decisions.

    ReplyDelete
    Replies
    1. D 2/14:

      "2. Laut dem Prüferbericht zur Vorprüfung 2014, der den Prüfern des Prüfungsausschusses IV als Beurteilungsgrundlage diente, liegt der Aussage 10.4 die Problemstellung zugrunde, ob eine Änderung der Beschreibung einer europäischen Patentanmeldung, die vor Veröffentlichung der Anmeldung eingereicht wird, in der Veröffentlichung berücksichtigt wird oder nicht (...). In der Aussage 10.4, die von den Bewerbern mit "wahr" oder "falsch" zu bewerten war, fehlt indes eine Bezugnahme auf den Inhalt der Veröffentlichung. Die einleitenden Worte "Bis zur Veröffentlichung von EP-T ..." beziehen sich eindeutig auf die Veröffentlichung als maßgebenden Zeitpunkt, nicht auf den Inhalt der Veröffentlichung. Die Zweckangabe "... dass die Ausführungsform X1 gestrichen wird" lässt offen, in welcher Form die Streichung bewirkt werden soll. Dieser Nebensatz ist weder grammatikalisch auf die Veröffentlichung (geschweige denn deren Inhalt) zurückbezogen, noch lässt der Kontext des Aufgabenstammes (einleitender Teil) zweifelsfrei darauf schließen, dass die Streichung der Ausführungsform X1 in der Veröffentlichung der Anmeldung Eingang finden soll. Der Beschwerdeführer moniert zu Recht, dass in der Aufgabe jeglicher Hinweis fehlt, dass beabsichtigt ist, die Veröffentlichung der Ausführungsform X1 zu verhindern. Die Aussage 10.4 hätte anders formuliert werden müssen, um diese Zielsetzung zum Ausdruck zu bringen. Es konnte von den Bewerbern nicht erwartet werden, diese Zielsetzung als Annahme zu treffen, da die Regel 22(3) ABVEP den Bewerbern vorschreibt, sich auf die in der Prüfungsaufgabe genannten Tatsachen zu beschränken. Folglich liegt der Aussage 10.4 nach objektiven Maßstäben nicht die Fragestellung zugrunde, die die Beurteilungsgrundlage der Prüfer bildete.

      2.1 Das Verständnis, von dem der Beschwerdeführer bei der Bearbeitung der Aussage 10.4 ausgegangen ist, ist aus objektiver Sicht gerechtfertigt. Die ein­leitenden Worte "Bis zur Veröffentlichung von EP-T ..." implizieren einen zeitlichen Aspekt, der für das Ver­ständnis der zugrundeliegenden Problemstellung maßgebend ist. Die Problemstellung ist demnach, ob der Anmelder bis zum Zeitpunkt der Veröffentlichung der Anmeldung EP-T die Beschreibung in der Weise ändern darf, dass er die Ausführungsform X1 streicht. Wiewohl die Möglichkeit zur Vornahme von Änderungen an der Beschreibung in zeitlicher Hinsicht vom Erhalt des Recherchenberichts und nicht von der Veröffentlichung der Anmeldung abhängt, ist diese Problemstellung im Kontext der Aussage 10.4 nicht abwegig, sondern im Lichte von Regel 10(5) ABVEP i.V.m. Regel 22(3) ABVEP als Prüfungsaufgabe vertretbar. In der Gesamtschau der einschlägigen Vorschriften (Regeln 137(2), 70a(1) und (2), 70(1) und (2), 68(1) sowie 65 EPÜ) musste keine Annahme getroffen werden, die über die vorgegebenen Tatsachen hinausgingen. Als Folge dieses Verständnisses war die Aussage 10.4 gerade anders zu bewerten, als der Prüferbericht zur Vorprüfung 2014 vorgab. Die Diskrepanz zwischen der Aufgabenstellung und der Beurteilungsgrundlage wirkte sich somit zu Ungunsten des Beschwerdeführers aus.

      3. Im Ergebnis sind die Prüfer des Prüfungsausschusses IV bei ihrer Beurteilung der Aussage 10.4 von einer falschen Beurteilungsgrundlage ausgegangen, da dem Prüferbericht zur Vorprüfung 2014 in Bezug auf die Aussage 10.4 eine andere Problemstellung zugrunde lag, als sie nach objektivem Verständnis der zu bewertenden Aussage 10.4 entnommen werden konnte. Die angefochtene Entscheidung beruht nach dem Gesagten auf einem schweren und eindeutigen Fehler, der ohne wertende Neubetrachtung der Prüfungsarbeit feststellbar ist, da er allein auf die inhaltliche Bedeutung der konkreten Formulierung der Prüfungsaufgabe 10 und der Aussage 10.4 nach objektiven Verständnis abstellt. Die vom Beschwerdeführer gerügte Bewertung ist deshalb rechtsfehlerhaft erfolgt und der Beschwerde muss stattgegeben werden. Gemäß Artikel 24(4) VEP ist die angefochtene Entscheidung folglich aufzuheben und die Beschwerdegebühr zu erstatten."

      Delete