Tuesday, 24 February 2015

Our (provisional) answers to the Claim Analysis part of Pre-Exam 2015


Before checking your own answers with the provisional answers given below, please first check out on the blog post  First impressions of Pre-Exam 2015?  for general questions and general comments about Pre-Exam 2015 (click here for EnglishFrenchGerman version)!, and post your first impressions there.The Legal  part is discussed in a separate blog post: Our (provisional) answers to the Legal Part of Pre-Exam 2015

Our preliminary answers (not yet thoroughly reviewed) are:
Q.11:  F, F, F, F
Q.12:  F, T, T, F# 
Q.13:  F, T, F, F
Q.14:  T, T, T, F
Q.15:  T, T@, F, T
Q.16:  T*, F, F, F
Q.17:  T, T, F@, F
Q.18:  T, T, F, F
Q.19:  T, F**, F, T
Q.20:  T, T***, T, T

* = answer depends on how strictly intermediate generalisation test is applied, see below
** = different interpretations possible but we tend to 'false', see below; Examiner's report considers both answers correct [comment added after Examiners report became available]
*** = ambiguous statement but we tend to 'true', see below
# = see comment of Arthur L for reasoning in support of 'true'
@ = Examimer's report answered F for 15.2 and T for 17.3 -- however, appeals based on opposite answers were successful, so our answers T and F are(also) correct [comment added on 8 May]

Any different opinions are welcome! Please post your opinions as comments to this blog, so everybody can from the discussion. Comments are welcome in any official EPO language. 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 26-02-2014 23:59"), whereas using your real name or a pseudonym is more personal, more interesting and makes a more attractive conversation.

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


Note: there are so many comments that you may need to click on "Load more" at the end of the first long page of comments to be able to see also the most recent comment threads!!!

11.1 F See GL F-IV 4.15, expression "in a" renders the protection sought unclear
11.2 F According to [0014], must have a thickness of at least 8cm (solid oak) or 10cm (other wood), so claim is broader than justified. See GL F-IV 4.5.2
11.3 F Claim is defined by reference to another entity, namely a door frame, which appears not to be standardised. See GL F-IV 4.14
11.4 F According to [0014], must have a thickness of at least 8cm (solid oak) or 10cm (other wood), so claim is broader than justified. See GL F-IV 4.5.2

12.1 F According to [0014], must have a thickness of at least 8cm (solid oak) or 10cm (other wood), so not an unnecessary limitation
12.2 T The plate being watered is a preferable yet optional feature, see [0009]
12.3 T Feature d) is a preferable yet optional feature, see [0016]
12.4 F For the door leaf to be suitable for a fire protection door, the door leaf "must" be closable by a door closer, see [0002]

13.1 F D1 shows a door leaf with wood fibres distributed in the plate 105 and in which the calcium silicate releases moisture when heated, see [0003] of D1
13.2 T D1 is silent about aluminium, only mentions steel and metal in general, see [0002] of D1
13.3 F D2's door has all claimed features. Note that solid wood contains wood fibres (see [0009] of client's application).
13.4 F D2 biases the door in a closed position using a rock (which is a weight) and cable and thus anticipates the claimed embodiment before the "or" statement

14.1 T Note that a door closer can be seen as a form of biasing means for biasing the door leaf into a predetermined position (namely closed position)
14.2 T The first embodiment falls within the scope of the part of claim I.8 after the "or" statement
14.3 T The second embodiment falls within the scope of the part of claim I.8 before the "or" statement
14.4 F According to [0017], a stepped edge is not suitable for a sliding door. Claim I.10 thus excludes the second embodiment

15.1 T D3 lacks a door closer which according to [0002] of the client's application is required for a door to be (suitable as) a fire protection door
15.2 T D3's fibers are cardboard fibers and not wood fibers as claimed in claim I.2 (of which claim I.6 depends). Note that in our opinion, cardboard fibers are not (necessarily) wood fibers -  D1 simply states that its (particular kind of) cardboard comprises wood fibers
15.3 F D3 has a cable and weight and thus anticipates the claimed embodiment before the "or" statement. Note that the claim does not require a door closer but rather a general biasing means.
15.4 T D3 does not disclose the door leaf having a stepped edge. (also, according to the client's application [0017], a stepped edge is not suitable for a sliding door)

16.1 T Combination not disclosed by way of dependency, but  appears to correspond to the door described in [0014]-[0016]. Note that the claim is not limited to a fire protection door, hence the thickness requirement may not apply. (*) On the other hand, one may still argue intermediate generalisation wrt. description since the support on which is relied on does relate to a fire protection door and thus the associated limitations, such as the thickness, should be incorporated in the claim.
16.2 F Combination not disclosed by way of dependency + unallowable intermediate generalisation wrt. description, e.g., since cable + weight (embodiment 2, sliding door) is combined with stepped edge which according to [0017] is not suitable for a sliding door.
16.3 F See 16.2 argumentation - covers combination of sliding door with stepped edge.
16.4 F No support for the plate being made of a material containing fibers other than wood fibers

17.1 T D1 is from same field, being fire protection doors. D2's door is suitable for fire protection, but is from a more remote field, namely vintage art. D3 also different field.
17.2 T D1 and D2 both have pivoting + closing doors, D3 is rather sliding + opening. D2 most similar construction, having plate of solid wood.
17.3 F D3 at least does not have a plate containing wood fibers, only discloses cardboard fibers or fibers in general
17.4 F D3 lacks a door closer which according to [0002] of the client's application is required for a door to be (suitable as) a fire protection door

18.1 T According to [0006] of the client's application, solid wood is resistent to bending (note that this appears to be a general statement independent of thickness)
18.2 T According to [0007], wood provides heat insulation (general statement, independent of thickness), [009] moisture provides cooling effect (which insulates heat)
18.3 F Claim II.3 merely claims a biasing means biasing the door leaf into a predetermined position, which may also be an open rather than closed position
18.4 F According to [0016] of the client's application, the aluminium layer of claim II.1 prevents the wooden plate from drying out

19.1 T According to [0004] of the client's application, there is no need for additional stiffening which indicates a simplified construction
19.2 F Imitating the appearance of ancient doors may be considered a non-technical problem in that an aesthetic effect is trying to be reached. (**) On the other hand, one may also argue that the underlying technical effect is that the wooden door allows appearance + shape to be varied, thus allowing the appearance of ancient doors to be imitated, see [0004] and [0015] of the client's application, in which case the answer may be 'True'.
19.3 F Mere fact that D1 is a patent document does not prevent it from being combined with a journal in a particular field.
19.4 T True? Also one may argue that ultimately the combination of D1 and D2 is incompatible?

20.1 T Appears to be true, D3 is entirely silent about fire protection
20.2 T Unclear statement since it suggests D1 is the CPA whereas question indicates that D2 is CPA. But indeed no indication in D1 that the plate's material could be replaced by solid wood
20.3 T Appears to be true. Since the claim requires stepped edges, this appears to support its non-obviousness
20.4 T D1 teaches that a material having a high melting point is preferred, teaching away from the use of aluminium (having 600C melting point according to [0016] of client's application, being significantly lower than the 1300C of steel which is preferred by D1, see [0002] of D1).

Any dissenting opinions are highly appreciated!

Nico & Roel

© Copyright DeltaPatents, 2015

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.

217 comments:

  1. I do not agree with 11.4 being false.
    The application only states with reference to embodiment 1 that in case of a certain kind of wood 8cm is necessary and that other kinds of massive wood need a thickness of 10cm [0014]. The general description it only states that for solid oak 8cm are necessary [0006]. Consequently, we cannot generalize to any kind of massive wood for all possible embodiments to say the 8cm thickness is a necessary feature for the invention and without it the claim would be broader than justified.
    There are no other reasons to object to that claim under Art. 84, so I would say it 11.4 should be true.

    ReplyDelete
    Replies
    1. Hi Peter,

      Our answer is based on [014] of the client's application: "First, the general construction of a door leaf 1 for a fire protection door 10 is explained with reference to Fig. 1. (...) solid oak wood having a thickness D of at least 8 cm. (...) When using any other type of solid wood, the thickness D must be at least 10 cm".

      Note that [014] is not specific to a particular embodiment but explains the "general construction of a door leaf for a fire protection door".

      Delete
    2. The solid wood door must be at least 8cm thick: the non-oak alternaive of 10cm+ thick also comprises the feature of "at least 8cm thick". It could be argued that the essential feature must include both alternatives (i.e. at least 8cm thick is limited to oak).

      In any event, I don't think there can be any dispute that the minimum thickness is an essential feature missing from the claim.

      Delete
    3. In deciding essential features, the wood retaining moisture, the sheets protecting the moisture are also essential to the working of the claim (if 8cm is essential that is). I thought 11.4 was True because there is no consensus on "essential features" for the dumbed-down mode one is advised to enter in order to answer pre-EQE questions! Nico - any comments?

      Delete
    4. My answer of Q11.4 and Q12.1 as TRUE was based on paragraph [0008] which gives a functional definition concerning the
      thickness and which mentions solid oak wood and the minimum thickness merely with respect to a preferred embodiment.
      Further, I noticed paragraph [0010] and assumed that no other general statements should follow in the description.
      Finally, I thought of ebony wood which burns even slower than oak, see http://www.answers.com/Q/Which_wood_burns_the_slowest.
      Therefore, I concluded that the thickness is not an essential feature of the invention.
      Today, I am surprised to see paragraph [0014] last sentence which does not describe a preferred embodiment but
      a general condition of the invention, and this condition according to my opinion appears to be technically questionalbe.

      Delete
    5. I don't think that it would be possible to consult www.answers.com during the exam; and I don't think that there is any mention in the exam papers of ebony, so it seems reasonable to stick to the information provided in the exam papers where there are no examples provided in the patent application of solid wood door leafs that are thinner than 8cm thick.

      Delete
    6. I agree with Peter Mayer. 8cm relates only to oak. In any case, if the plate were not thick enough then it wouldn't be a fire protection door, as required by the claim (note "will not be suitable for" in paragraph 8). If I were drafting a claim for my client, I would start out with a claim such as C), before limiting myself to particular types of wood.

      Delete
  2. Thank you for putting up these answers so quickly. I went for F on statement 15.2. I thought it was quite ambiguous but noticed that D1 discloses that the cardboard comprises wood fibres. This of course then has a knock-on effect with regard to further interpretation of D3.

    ReplyDelete
    Replies
    1. I agree and also went for F on 15.2. [0004] of D3 clearly says "...board containing fibres such as cardbord". Cardboard unambiguously contains wood fibres therefore I.6 is not novel compared to D3.

      Delete
    2. Hi FlyingHarlequin,

      We indeed had some discussions whether the statement in D1 is to be interpreted as that cardboard in general comprises wood fibers.

      However, we ultimately concluded from the particular phrasing of D1 that _its_ particular type of cardboard comprises wood fibers, and not that cardboard in general comprises wood fibers. This indeed has a knock-on effect.

      Delete
    3. Hi Nico,

      I also used this interpretation, so am happy to see that Delta Patents came to the same one. There is no other way to interpret D1, IMO, because D1 says "the cardboard", i.e. the cardboard used in D1.

      However, I think it is ridiculous that the exam committee to base a question on such a narrow point of interpretation using a word that likely has a common general meaning in many art areas. It would have been so easy to avoid this issue by using a more general word like "material". By using cardboard, it allows personal knowledge into the equation. I think it is reasonable to assume based on personal experience that cardboard is a paper based product. So I feel bad for anyone that reached the opposite conclusion when it was so easy for the exam committee to avoid the ambiguity entirely.

      Delete
    4. Thanks for the replies. I agree with Kevin. When this is a multiple choice exam leaving a candidate with no recourse to back-up an assumption with argumentation there should be no ambiguity or terms requiring construction whatsoever. Also one should realistically have a reasonable expectation that the examination is not going to change in style so dramatically from those of previous years.

      Delete
    5. i had the same interpretation than deltapatent.

      Moreover to do cardboard, cellulose fibers must to be used, but all cellulose fibers do not come from wood....

      i agree that this knowledge is a personal one (from my chemistry/biotech background) and so the exam committee did an error using these words subject to a lot of interpretation

      Personally i passed literally my 15 last minutes to answer at 15.2 and 17.3 arguing with myself to consider if D3 contain wood fiber or not...

      Delete
    6. 15.2 is false for me too, since I am in the paper business it was just impossible to not interpret it to wood fibers as well. Very annoying that this will be the crucial matter for me passing or not.

      Delete
  3. First, thank you so much for providing these answers and comments!

    Re. Q15.2: I assume there will be debate about this. I thought about this for a long time and considered that cardboard fibres necessarily must comprise wood fibres. It'll be interesting to see what the official answer will be. (This intepretation also directly affects Q. 17.3)

    Re. Q15.4: I considered for a long time if the "hook-like member" may be considered a stepped edge and decided yes, wrong decision I guess...

    ReplyDelete
    Replies
    1. I do not see how cardboard could not contain wood fibres. The only debate should be about wether or not the person skilled in the art knows this... and I think he certainly does.

      Delete
    2. Hi Ela,

      With respect to Q15.2, see the comment to FlyingHarlequin above.

      Delete
    3. In my opinion, [0003] of D1 just says that the cardboard used in the embodiment(s) described comprises wood fibres, but it does not define cardboard to be defined as always comprising wood fibres.
      Also, [0004] of D3 does not define the type fibres of the thin board containing fibres such as cardboard.

      I expect that cardboard is meant to be a generic term (and comprisign fibres), with cardboard comprising wood fibres being a species.

      See also http://en.wikipedia.org/wiki/Cardboard (that you do not have available when sitting the exam though....):
      "Cardboard is a generic term for a heavy-duty paper of various strengths, ranging from [...]. Often the term "cardboard" is avoided because it does not define any particular material."

      Also, cardboard exists from cotton in stead of wood fibres.

      Delete
    4. D1 states in the German version that "Die Pappe umfasst Holzfasern", which means that "the cardboard comprises wood fibres" and which does not mean that "Diese Pappe umfasst Holzfasern" which would mean "Said cardboard (only the one mentioned in D1) comprises wood fibres"...Therefore I would agree with Peter Mayer and assume that cardboard in general contains wood-fibres and the skilled person should know that.

      Delete
    5. the card board may be the question that decides for me passing or not passing. I have 68 points. If the card board implicitly comprises wood fibre than I could pass the exam.

      Delete
    6. RIS,

      the = said in patent land. See antecedent basis in claims.

      Delete
    7. If we are citing Wikipedia:
      http://en.wikipedia.org/wiki/Wood_fibre :
      "Wood fibers are usually cellulosic elements that are extracted from trees and used to make materials including paper. The end paper product (paper, paperboard, tissue, cardboard, etc.)..."

      Imho: cardboard consists of paper consisting of wood fibres. There is no need for the disclosure in D1 but it points to the fact that all cardboard must comprise wood fibres.

      I agrees therefore with Peter, question is if the skilled artisan knows that

      Delete
    8. RIS, I based my argument also based on the German document, although I made the exam in English. But because of the doubts I read the French and the German version to conclude that wood fibres are implicitly disclosed in card board

      Delete
    9. This is a really big omission in the paper: it should have had a clear definition of cardboard to be able to answer the question!

      http://en.wikipedia.org/wiki/Cardboard says:

      "Cardboard is a generic term for a heavy-duty paper of various strengths"

      wherein paper is hyperlinked to http://en.wikipedia.org/wiki/Paper which says:

      "Paper is a thin material produced by pressing together moist fibers, typically cellulose pulp derived from wood, rags or grasses, and drying them into flexible sheets."

      So, it does not need to be wood fibres, but can be quite some other types of moist fibres!

      How could we have concluded in either direction when keeping to the facts of the paper as required by Rule 22(3) of the Implementing provisions to the Regulation on the European qualifying examination:

      "(3) Candidates shall accept the facts given in the examination paper and limit themselves to those facts. Whether and to what extent those facts are used shall be the responsibility of each candidate. Candidates shall not use any special knowledge they may have of the technical field of the invention"

      M

      Delete
    10. RIS, I agree with you and Peter Mayer. In french it's also said "Le carton comprend des fibres de bois réparties au sein de la plaque 105". So it's said "Le" (which can be either a general or a specific type) and not "Ce" (which is only a specific type of).
      I don't know in other languages about that specific word and the meanings it can take, but in french it seems pretty obvious that a cardboard (du carton) is a wood product...

      Delete
    11. i had the same interpretation than deltapatent.

      Moreover to do cardboard, cellulose fibers must to be used, but all cellulose fibers do not come from wood....

      i agree that this knowledge is a personal one (from my chemistry/biotech background) and so the exam committee did an error using these words subject to a lot of interpretation

      Personally i passed literally my 15 last minutes to answer at 15.2 and 17.3 arguing with myself to consider if D3 contain wood fiber or not...

      Delete
    12. First of all Q15.2 is about novelty of claim 6 with regard to D3. So anything in the description of D1 could and should not be used to interpret whether particular type card board contains wood fibre. secondly, document D1 does not at all disclose its (particular kind of) cardboard (CB) comprises wood fibres as you mentioned in your argumentation to the question. D1 says "The calcium plate 105 is made of a card boar that contains calcium silicate. The card board comprises wood fibres distributed within the plate 105".
      I would even argue that this formulation of D1 implies that card board comprises normally wood fibres (WF). if it was a particular type of CB that contains WF, than D1 would have said "The calcium plate 105 is made of a card boar that contains calcium silicate and wood fibres distributed within the plate 105".

      Delete
    13. From Visser (under Novelty Art. 54(1)):

      "When interpreting a prior art document, it is necessary to read it having the common general knowledge of the skilled person in mind. For this purpose it is permitted to look at representative technical literature as an aid to the correct interpretation of any particular term in the prior art document"

      D1 discloses that "a cardboard" comprises "wood fibres".

      Thus, when interpreting cardboard of D3 it should be permitted to look at D1 for the purposes of interpreting the term "cardboard", which would include "wood fibres".


      Delete
    14. One point important about 15.2 : you say in the correction "D3's fibers are cardboard fibers and not wood fibers". Actually, in the french version D3 says exactly : "le battant 501 est fait d'un panneau mince et léger comprenant des fibres TEL que le carton" "TEL" is a masculine attribute, so it is not related to the fibers (a feminine word) but to the door leaf "Le battant" (a masculine word). In french you could have written this sentence like "The door leaf is made of light and thin board containing fibres. The light and thin board can be a cardboard", it would have been exactly the same.

      Delete
    15. Nico - for Question #15, should we not be answering wrt the claim (I.9, I.6 etc) instead of the whole document?

      Delete
    16. even if that's true, document does not disclose that a particular card board comprises wood fibres (see the second part of my comment above)

      Delete
    17. I am rather taken by surprise now by the cardboard dispute. In the exam I interpreted the cardboard of D1 as a a special type of cardboard, which in that case contains wood fibres. (and the other one not). I didn't even think about that cardboard may in general contain wood fibres and would implicitely disclose these. Which now seems to me not too unrealistic. However with the information given in D1, this would rather direct me away from this interpretation, because it makes no sense to me to specifically state it, if each and every cardboard would contain it. It it any case seems so constructed that it might be true.
      Bad for me, but seems to be good to some fellows here;) I hope it's not too many points...
      Not very nicely designed case study (at least for a multiple choice test) from my point of view

      Delete
    18. I agree with Kristina.

      Without any definition as to cardboard, in particular without the paper defining anywhere that the cardboard is defined to have wood fibers to be called cardboard, I do not see any reason why to assume it is.
      D1 reads in par.[003]: "The calcium silicate plate 105 is made of a cardboard that contains calcium silicate. The [=said] cardboard comprising wood fibers distributed within the plate". So, said cardboard shown in the figure of D1 is just a specific type of cardboard, as Kristina indicates too. This phrasing does neither explicitly nor implicitly define cardboard as always containing wood fibres.

      Many people would not want to eat any type of pizza, if the generic term pizza is defined by a menu that includes "Pizza comprising ansjovis and garlic"

      Delete
    19. Well, I would argue that everyone would know that pizza in general would relate to a baked dough comprising flour and tomato sauce.

      Tough of course there are flour-free (gluten-free) pizzas there days and some places offer pizzas without tomato sauce. It is possible but not what the "common general knowledge" would be and not what a skilled person would understand under a pizza.

      For me there can be no question that cardboard is made of paper. That paper may be formed by other types of cellulose fibres than wood fibres is specialised knowledge. Common knowledge (and known by te skilled person) would be that cardboard is made of paper is made is wood, i.e. comprises wood fibres.

      But we shall see how the exam committee decides.

      Delete
    20. Pizza-Fan, I think you are right. In any case, I actually had a wrong interpretation/knowledge of the German language (though my mother tongue) in the exam for the word "Pappe". I thought it's a more general/functional term for a building material, like for example "brick", "insulation" or the like and describes more its properties/appearance.

      In any case, it seems veeery constructed: type of "hey let's make a funny secret hint in one of the documents and see if they find it, haha" and then it went out a bit too artificial. Therefore I deem it right.

      Still, if I would write a pizza application, I would certainly not write a sentence like: "The flour is distributed within the pizza", but never say never:D

      Delete
    21. "The calcium silicate plate 105 is made of a cardboard that contains calcium silicate. The [=said] cardboard comprising wood fibers distributed within the plate"

      I would construe this as meaning that the calcium silicate plate comprises a cardboard, wherein the cardboard comprises wood fibers, and wherein the plate further comprises calcium silicate dispersed within the cardboard. It is not the cardboard that is special, but it is in fact the plate as a whole that is special.

      If this is to be construed as a "special cardboard" then surely the term "calcium silicate plate" becomes redundant, which would beg the question of why it is in there in the first place?




      Delete
    22. @ Pizza-Fan: That was my line of thinking as well. "Pappe" in german VERY clearly means in the general usage of the word cardboard (made from paper) and nothing else. If you mean another type of "Pappe" made from something else than paper one would specify that (Zellulose-Pappe, etc.). I was not even aware that there was "Pappe/Cardboard" made from anything other than paper.

      Delete
  4. Q19.1
    In my view the need for additional stiffening does not necessarily mean a more complex construction...

    Q 19.3
    What about intepreting the question as a vintage art Journal is a Prior art in a remote technical field and therefore it can be disregarded for assessing inventive step.
    Thanks

    ReplyDelete
    Replies
    1. I agree with you Anonymous and also interpreted the question in that way. The reasoning for the answer provided by Delta Patents does not make any sense to me as they only refer to the "patent document" while it is obvious that the question is more about whether the skilled person would find the article in the vintage art Journal at all

      Delete
    2. Q19.1: I agree, going from additional stiffening means to a more complex construction seems a step too far in defining the objective technical problem.

      Q19.2: I also hesitated on this one, but then I decided that the technical field of the Journal is about doors and how they are resistant to fire. The fact that it is in a magazine about vintage art is not relevant for determining the technical field itself.

      Delete
    3. 19.2: it is an article in a vintage art journal, and there is no mention in the title about doors; how could the person skilled in the art ever look into that? Just because "fire" is mentioned?

      Moreover, in the comments to 19.4 Nico and Roel wrote that "one could argue that D1 and D2 are ultimately incompatible"; so are they or are they not? or are they compatible only for the purpose of question 19.3?

      Delete
    4. Q19.1. also the problem has to be defined in respect of differentiating features which are solid wood and (completely) covered with aluminium. First of all I agreed with Jereon and add the problem in that case could be stiffening the door but not simplifying the construction.
      Secondly how does the aluminium cover (first distinguishing feature in claim II.1) simplifies the construction? D1 leads away from the invention as it discloses metals which are heat resistant such as steel resistant to 1300°c, whereas aluminium melts already at 600°c as mentioned in the description!??

      Delete
  5. 16.2 could be true, depending how the claims are "combined". For example, if the feature of claim 10 is only combined with the second portion of the feature of claim 8 (after "or"), then there is no unallowable intermediate generalisation. imo.

    If the feature of claim 10 rendered the mechanical spring & lever element also novel&inventive (in addition to the alternative cable&weight), then such an amendment of 1+8+10 would be a perfectly valid way of ensuring an allowable independent claim.

    Appears to be another example of a poorly-worded question.

    ReplyDelete
    Replies
    1. I think that 16.2 is at least worthy of an aserisk, as any half-decent patent attorney COULD combine l.1, l.8 and l.10 to comply with Article 123(2) EPC. And this pre-exam is intended to help ensure that patent attorneys are at least half-decent.

      Delete
    2. 16.2 is (imho) an example of an incorrect answer by Deltapatents or a terribly drafted question (or possibly both). Alternatively, there would need to be a feature missing from the combination of stepped edge and spring/lever biasing means that renders this combination an unallowable "intermediate generalisation".

      I'll assume that the overwhelming lack of responses to my comments reflects a unanimous agreement with my humble opinion.

      There is "A_ combination of claims l.1, l.8 and l.10 that is allowable under Article 123(2) EPC". For clarity a possible "combination of claims l.1, l.8 and l.10 could be:

      Door comprising:

      a door leaf, wherein the door leaf comprises a plate including a material containing fibres; and

      a biasing means,

      wherein the biasing means has a mechanical spring and a lever element, and wherein the door leaf has a stepped edge; or

      wherein the biasing means has a cable and a weight.

      I think that the drafter of the question was attempting to be clever and catch people out with the combinations of l1.10 and the two options in l1.8. Unfortunately I think that the resulting question is not very clever (and/or that the Deltapatens answer is incorrect).

      Delete
    3. No response may also reflect that we are all fed up with this exam.
      Further discussions do not really achieve anything. Even if you or I or other could convince Delta Patents (and the others) that some responses should be different, we need to wait for the exam committee's opinion.

      So imho people stop checking the blog and if there are new comments.
      It might get interesting again once the results are announced and the examiners report is available...

      Delete
    4. Dear Mr or Mrs Blog stalker,

      as your name indicates, your comment does not need te taken seriously.

      It is your choice and only yours whether to check out blogs or not, and whether to post comments or not. But if you post, stick to the non-written rules and normal interpersonal decency and etiquette to not spam all who are interested with this type of "contributions".

      It is useful and serves a need -of at least one person, i.e., me- to discuss on topics. Also, somebody once told me that also the exam committees read all serious blogs, so any constructive arguments are not just posted into the endless internet but reach also various other important stake holders than only the candidates.

      Stalkers certainly do not belong in this House!

      Let's continue these interesting discussions with all seriously involved!!!

      Deltapatents thx for making your answers available so quickly, allowingn everybody to discuss any answers and arguments, and being so responsive to the comments that are posted!

      John

      Delete
    5. This is not neccessary true, blog stalker.

      I suspect that the exam board are also human, and are curious to know how there carefully crafted exam with a few insider jokes was received by the community.

      So I believe these blogs are read by them as well, so that a large show of discontentment may cause them to be lenient when allowing marks.

      With that in mind I did consciously post here and there some comments immediately in the week after the exam defending my choice of solution where my solution went against the majority view.

      Did it affect them, and my scores? We will never know, but every single mark may be important!

      Delete
  6. 12.4 Claim is defined by reference to another entity, namely a door closer.

    Surely only "configured" when used in a fire protection door?

    ReplyDelete
  7. I had the same line of thinking as Anon (16.04) regarding 19.3

    My issue is more with question 16.3 and 16.4:

    16.3 Whilst I agree the combination does cover a sliding door with a stepping edge, the claim scope is not broader and does cover the pivoting door which was disclosed as filed. In addition, the application as filed should take regard of the claims as filed and so the claim set I forms part of the application as filed, and so in this sense is this combination not allowable?

    16.4 my point regarding claims as filed as basis for the amendment stands here also, and so so although the descrption only supports wood fibres, the claims as filed were broader so whilst objectionable under a84 would not be objectionable under 123(2)?

    Thanks

    ReplyDelete
    Replies
    1. Hi Hobbit,

      The combination of claims I.1, I.7 and I.10 is so broad that, in addition to embodiment 1 and 2 of the client's application, an embodiment would fall under the claim which combines a sliding door with a stepped door leaf. However, according to [017] a stepped door leaf is unsuitable for a sliding door. One may thus argue that such an embodiment, and therefore the broad claim as a whole, is not supported by the description as filed.

      Delete
    2. Still, is that not an objection under A84 for support rather than one of A123(2) which was asked for by the question?

      Delete
    3. I respectfully disagree. Q16.3 is about 123(2) of the combination of claims 1, 7 and 10. what ever other embodiments could also fall under the claim important is that all technical features in combination have support in the description as originally filed and that is embodiment 1. The claim would infringe 123(2) if it explicitly mentions a sliding door, which is according to the description is not combinable with the stepped edge. However reading that the sliding door is not excluded from the claim, thus 123(2) is not correct. may be Art 84, in that an essential feature "the door is a hinged door" is missing, but not Art 123(2).
      please comment!

      Delete
    4. that's what I am trying to get at also depressed - the question is not asking for which combination would be unallowable for lack of support, it is asking for which combination would represent added subject matter!

      Delete
    5. I guess the crucial point here is whether embodiment 1 does support the general term "biasing means" or not. Explicitly it discloses only the lever and spring arrangement. So one could argue that the application only discloses stepped edges together with a biasing element comprising (or even consisting of) a lever and spring arrangement.

      The application says that stepped edges are not suitable for a sliding door. It does not say that stepped edges are not suitable for a biasing means which is something other than a lever-and-spring Arrangement.

      So, the argument for the inadmissible extension would be: "stepped edges only work with hinged doors, not with sliding doors. For hinged doors, only a lever-and-spring-type arrangement is disclosed in the application. There is no indication for the skilled person that any other biasing means than a lever-and-spring-type arrangement can be used with stepped edges."

      For my taste, this argument is a bit too convoluted. Especially since D2 shows that rope-and-weight-type arrangements also work with hinged doors. To me, it seems that the application is pretty indifferent which type of biasing means is used for which type of door and which type of edge. Therefore, in the above argument, it seems to me that a link of the chain is missing, namely the link connecting the type of biasing means to the type of door (hinged or sliding).

      So, I had T for 16.3 ;)

      Delete
    6. 1st set of claims was "initially" filed with the patent application, so there is no issue of Added subject matter for questions 16.1-16.3

      Delete
    7. ok, now I realised that they all depend on claim 1, so there could be different embodiments

      Delete
    8. The (too) broad combination of stepped door leaf and sliding door can be avoided by CORRECTLY combining claims l.1, l.8 and l.10. Therefore, the answer to 16.2 should be T (not F as given by Deltapatents above).

      Delete
  8. Q 16.3
    In my opinion Claim I.7 is not limited to a sliding door, rendering the combination allowable

    ReplyDelete
    Replies
    1. Hi JoZissou,

      See the comment in response to Hobbit.

      Delete
  9. I went for T on 16.3 since a "biasing member" in I.7 may also be the door closer 12 with the spring 14 and thus at least one embodiment of this was disclosed in the application. I am not totally certain if this may yet be an intermediate generalization...

    ReplyDelete
  10. Q12.4
    my opinion is true because a fire protection door include [002] a door leaf, a frame and a door closer.

    Door leaf for fire protection door must to be suitable to be closed by a door closer.. if not the door leaf in not "for fire protection door"

    the answer should be true, it is unnesseray limitation because it is already limited by "for fire protection door"

    ReplyDelete
    Replies
    1. I came to the conclusion that it is not a limitation (because already limited by fire protection door) and therefore went for false.

      Delete
    2. Agreed. This was my logic.

      The spec stated [0002] that the fire protection door must have a door closer, so if the door leaf is "[suitable] for a fire protection door", then it must be configured such that it can be closed by a door closer. Therefore, the statement is redundant?

      Delete
    3. @kate

      following your argument, there is no answer to the statement12.4 because e) is not a limitation..

      Delete
    4. Totally agree Arthur. The claim is to a door leaf. The statement referenced by Nico states "a fire protection door must include a door leaf, a door frame, and a door closer." Nowhere it is stated that a door leaf needs to be configured in any way to be closed by a door closer. If the claim was to a fire protection door than I would agree with Nico, but it is not. The door frame itself could just as easily be configured as the door leaf.

      Delete
    5. Hi Arthur L,

      Good point, we missed that one! So essentially you state that the claim is already implictly limited to the door leaf having to be suitable to be closed by a door closer, and as such feature e) is redundant and thereby "unnecessary".

      The only doubt I have is that this would imply the meaning of "unnecessary" changes throughout the question (12.2, 12,3 = unnecessary means an 'undue' limitation in that an optional feature is claimed, whereas in 12.4 unnecessary would mean a redundant limitation).

      So, having seen your argument, I'm less confident about 12.4 being 'False' but at the same time am not entirely convinced yet that the Exam Committee expects to see 'True'. I'll flag our answer with an asterix and refer to your reasoning.

      Thanks

      Delete
    6. I'm with Kate on this one. If the feature is indeed redundant, it is not a limitation and can therefore not be an "unneccessary" limitation (neither can it be a necessary one or any other kind).
      If the feature is not redundant, it is necessary.

      If the question is, "is XY an unneccessary limitation", the question comprises two parts: a) "is XY a limitation" and b) "is it an unneccessary one". If XY fails to be a limitation, it must logically also fail to be an unneccessary one.
      If I asked you "are you a drunk elephant?", of course your answer will be "No, I'm not - I'm not an elephant!" instead of "This question cannot be answered" ;)

      Delete
    7. Although I agree with Arthur in that the statement appears redundant, I conclude differently: if the limitation is implicit, stating it explicitly does not further limit anything, so e) is not a limitation at all, and therefore cannot be a useless limitation. My reasoning for answering F.

      Delete
    8. I totally agree with you Arthur. if the fire door implicitly discloses a door closer, it is unnecessary to additionally mention the feature e) and the answer should be "TRUE"

      Delete
    9. The claim is to a door leaf 'for' a fire protection door i.e. although not limited to such it must have the features suitable to be used as same. As taught in the description, fire protection doors must have a door closer, and so to be suitable for that purpose, it must be configured such that it can be closed by a door closer. Given this implicit functional requirement, it does not represent an unnecessary limitation. Nonetheless, its recitation does indeed itroduce a feature into the claim and thus must be acknowledged as a limitation, however, albeit a 'non-limiting' limitation.

      Delete
    10. Thank you to considering my argumentation

      @genimor,
      if you consider that e) is a limitation, there is a redundant characteristic ==> so the caractéristic e) est unnecessary
      if you consider that e) is not a limitation therefore, the statement does not have any answer because it is about (un)necessary limitation (cf the case of EQE2014 that the appeal change if i remember well the appeal say that the answer T or F was in regard of the statement so no/all answer a good)

      Delete
  11. Re 19.2: should not be possible to alter the appearance of the wooden door, in cl.II.2, as it is fully covered with aluminium. Thus, I agree that the statement is false (though for different reasons).

    ReplyDelete
  12. Thank you for providing the answers so quickly.

    Could you please clarify your reasoning for question 16.4 ?

    Claim Set I was filed with the application, so it seems that the support for the plate being made of a material containing fibers other than wood fibers is actually provided by claim I.2.

    I agree that application as filed does not disclose the combination of question 16.4. Yet, I am not sure that this is an intermediate generalisation contrary to Art. 123(2) EPC.

    Guidelines G-V, 3.2.1 seem to indicate that such a combinaison of features may be allowed if there is no structural and functional relationship between the features. In the present case, I do not quite see what functional or structural relationship may exist between the non-wood fibres and the partial metal covering of the plate.

    ReplyDelete
    Replies
    1. Sorry, I meant to refer to Guidelines H-V, 2.3.1

      Delete
    2. @ 16.4
      The claims have to be supported by the description. The claims are not part of the description. It follows that claim I.2 cannot support claim amendments if they are not supported by the description.

      The description of the application never mentions general "fibres", just wood fibres. So, if you Change the back-reference of claim I.5 to I.1 instead of I.2, you broaden the scope to non-wooden fibres, which are nowhere disclosed in the application.

      Delete
    3. claim 1.5 already goes back to 1.1 via its dependency on 1.2. By combining 1.1, 1.2 and 1.5 you are actually narrowing the scope of the claim to state that the fibres are indeed wood fibres, whereas the claims AS FILED (claim 1.1) covered any material containing fibres!

      Delete
  13. I came to a different conclusion regarding Q11.3 based on the same sections of the Guidelines: "However, references to second entities which cannot be seen as subject to standardisation may also be sufficiently clear in cases where the skilled person would have little difficulty in inferring the resultant restriction of the scope of protection for the first entity [...] It is neither necessary for such claims to contain the exact dimensions of the second entity, nor do they have to refer to a combination of the first and second entities. Specifying the length, width and/or height of the first entity without reference to the second would lead to an unwarranted restriction of the scope of protection."

    ReplyDelete
  14. I do not agree with 11.3. [0017] says "many different sizes and shapes of steps are possible, however the step in the door leaf and the step in the door Frame must fit to each other". I think the description hints, almost explicitly states, that there is no other better way to define without undue Limitation.

    ReplyDelete
    Replies
    1. also, thinking from the Examiner's Point of view, why do you put this sentence in the description if it is non-relevant for 11.3. I think this sentence is for some purpose.

      Delete
    2. i thought this statement was true as the term 'matches' was unclear. The description states that frame and door have corresponding steps such that they can engage with eachother i.e. one step is protruding and the other is recessed. However, 'matches' could be construed as also meaning the door and frame both have the same type i.e. both recessed or both protruding, in which case they would not engage. i.e. unclear and contravening a84

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

      Delete
    4. @Hobbit: Well, i think that whether clarity is met or not can be evaluated by whether an embodiment clearly falls in the Claim or not. your example both recessed or both protruding, clearly do not match. I think "match" and "identical" are two different concept. for example, socket and plug can match each other depite the total difference in appearence. Imagin a Person such as the skilled Person is Standing in front of a real fire door and door Frame with steps, both being recessed, if you ask whether he considers this as a "match", the first Thing he Looks at would be the shape and i personally think that the answer is clearly no.

      Maybe a bit phylosophical, I find that one can never ever get 100% clear Claims as with almost every word one can come up with a counter-Argument. One must draw a line somewhere. and the line now is that the skilled Person with a willness to understand will not purposely distort the Claim. So with a willness to build up the Claim, some degree of uncertainty, if there is any, can be tolerated. That's just my Personal thinking.

      Delete
    5. @Jackie: Oddly, I'm having a similar argument about the definition of "match" with the EPO on one of my current cases. We'll have to see whether the examiner's response matches with the official mark scheme for this paper!

      Delete
    6. @Jackie: Spot on! I had exactly the same thoughts as you insofar that para. 17 was meant to be an indication to have the *****second paragraph***** of GL F-IV 4.14
      in mind when answering 11.3!

      Delete
  15. For 16.3, I disagree as well, because the Claim doesn't say it is gliding doors.

    the term "biasing" does not Limit the door to gliding doors because the Prior art D3 also use "biasing" in the description

    ReplyDelete
  16. Question 15.1 is relating to I.9 - This is not novel wrt D3..

    ReplyDelete
    Replies
    1. I think the hint in D3 was that the door is "only" used as an emergency exit door, then the reasoning provided is that the emergency exit door is not a fire protection door.

      There is also a reasoning that the emergency exit door of D3 does not include a "door closer", which is presented as an essential feature of a fire protection door. However, the term "door closer" is not terribly well chosen. In the patent application a door closer is defined in [0002]: "has to ensure that the fire protection door is closed in the case of a fire".

      Whilst it appears likely that the emergency exit door of D3 should actually be actively opened in the event of a fire (which is probably an example of an emergency that could prompt an evacuation through the door of D3), there is nothing in D3 to explicitly indicate that a fire is an emergency (so we must use a little CGK).

      In addition we must deduce that the "door closer" actively closes the door? Otherwise, the lock (with hook 505) that maintains the door of D3 closed is not a "door closer". However, based on claims ll.5, ll.6 and ll.7, there is a reasonable argument that the lock of D3 is a door closer in that it keeps the door closed.

      "Door closer" just looks like lazy drafting for the exam.

      Delete
    2. Jake, in D3, the closer biases the door "open", not "closed". In any case, I disagree with the answers to Q15.

      Delete
    3. Jo, I think you may be confusing the lock with hook 505 and the weight 504. I was suggesting that the lock, not the weight may be considered as a "door closer".

      My comment was directed towards the term "door closer" being unclear/lazy.

      Arguably the weight 504 of D3 is a "door opener" and not a "door closer", but the lock with hook 505 does not bias the door open; rather the lock with hook 505 maintains the door of D3 closed and is arguably a "door closer" - something suitable for ensuring that the door remains/is closed.

      Whilst the feature "door closer" may be defined to an extent in paragraph [0002], "door closer" is not defined in any of ll.5, ll.6 or ll.7. On the face of it, it could be argued that the lock of D3 is a "door closer". The door of D3 will generally be kept closed by the lock. There is a high probability that in the case of a fire, the lock ensures that the door is (initially) closed . The lock would need to be released by pushing the panic handle.

      Noting that "closed" may be an adjective or a verb, it is clear that the lock of D3 can ensure that the fire protection door is closed (adjective) in the case of a fire.

      Pedantic, but hey, that's this profession. I just think the choice os "door closer" is lazy.I haven't even considered the French or German variants.

      Delete
    4. Hi Jo,

      As you already indicated, in D3 there is a door "opener" and not a door "closer". Claim I.9 states that the door is a fire protection door. According to [0002] of the client's application, a fire protection door includes a door leaf, a door frame and a door closer. Accordingly, the claim is implicitly is limited to having a 'closing-type' mechanism so as to provide the fire protection function, whereas D3 only describes an 'opening-type' mechanism. I would argue that claim I.9 is thus novel over D3.

      Delete
    5. 'Closing-type' mechanism may even have been a better choise of phrasology than "door closer". In any case, there is a definite argument that the lock of D3 meets the definition of"door closer" in paragraph [0002] of the patent application as the lock of D3 can "ensure that the (fire protection) door is closed (adjective) in the case of a fire"; and is therefore a "door closer.

      Accordingly in D3, there is both a "door opener" (weight 504) and a "door closer" (lock, with hook 505).

      Delete
    6. Nico, My question about I.9 is very specific - in answering such questions, should we not only look at the claim wording, rather than the entire description? If we read "only the claim" I.9 is a door comprising a door leaf (with a plate including a material containing fibres) wherein the door is a fire protection door. Fire Protection Door has the three elements (leaf, frame, closer). I did not interpret door-closer vs door-opener, I interpreted the "biasing mechanism's" function to be "Suitable for" biasing it in the opposite direction as well.

      Delete
    7. Hi Jo,

      Ultimately I would argue that D3's door is not suitable for use as a fire protection door in that it biases towards the 'open' state. Of course, one may lock it manually (with the hook-like member 505), but in normal operation, it clearly biases into an fully opened state which makes it unsuitable as a fire protection door.

      Delete
    8. Nico, it is important not to confuse the terms "biasing means" and "door closer". There is no requirement in the defintion of the term "door closer" for the "door closer" to comprise any biasing means (although this may have been the intention in the exam question). Biasing the door closed is not presented as an essential feature, such that the argument that the door of D3 is not suitable for use as a fire protection door is flawed.

      In normal operation, the emergency exit door is probably closed. Hopefully emergencies are not normal. If/when a fire breaks out, the emergency exit door is probably initially closed (adjective) - in its normal state, held there by the "door closer" in the form of the lock. Once opened, it may be necessary to manually close (verb) the emergency exit door, but the lock "ensures that the door is closed (adjective) in the case of a fire".

      This is clearly a pedantic point, but this exam is intended to be for a pedantic profession. By the patent application's use of the term "door closer"; and the patent application's own definition of a "door closer", the lock of D3 can arguably be interpreted as a "door closer".

      Clearly the lock of D3 cannot be considered as a biasing means that biases the door closed; and there should be no confusion of the terms "biasing means" and "door closer". Indeed, the lock of D3 may not even be a biasing means, but the patent application's own defintion of the (lazy, unclear) term "door closer" does not necessarily require any biasing means: merely that the door comprises a means to "ensure that the door is closed (adjective or verb?) in the case of a fire - see paragraph [0002]. The drafter of the definition of "door closer" does not appear to have considered the ambiguity of the term "closed" - which can be taken as an adjective or a verb.

      To exemplify that "door closer" and "biasing means" should not be confused or considered in some way synonymous, claims ll.5 and ll.6 require a "biasing means for biasing the door leaf into a predetermined position" (from ll.4) AND "a door closer". The "door closer" is not provided as a narrowing limitation of the "biasing means" of ll.4, such that claims ll.5 and ll.6 are at least unclear. In contrast, claim ll.7 defines the "biasing means" as a "door closer comprising a cable and a weight for biasing the door leaf into the closed position" (noting also that there is no antecedent basis for "the closed position").

      It is also notable that the second embodiment (sliding door) of the patent application is not described as having any "biasing means" - only a "door closer" (also bearing in mind that "door closer" and "biasing means" are presented as distinct, separate features in claims ll.5 and ll.6).

      I don't think it's directly relevant to any question, but the omission of a "door closer" from all of l.7, l.8, l.9, l.10, ll.4, ll.5, ll.6 means that these claims all contravene A 84 EPC for failing to include the essential feature of the door closer, noting that the biasing means (e.g. of l.7, l.8) could bias the door open.

      The only claims to a "door" that comprise the essential feature of the "door closer" are claims ll.7 and the auxiliary request claim of Question 20.

      Delete
    9. 15.1

      If all that is required for consideration as a fire protection door, are the door leaf, door frame and door closer, then there is an argument that D3 comprises all of the features of l.9 and that 15.1 could be False.

      If the pre-exam is going to include so many questions with ambiguity over the answers, then the format of the answer paper is inappropriate. I know that the T/F answer papres save time and money for answering, but there is no reward for any working - particularly where there may be some dubiety as to the 'correct' answer.

      Delete
    10. Hi Jake,

      Good points, and it's certainly clear that the many of the questions leave some, and arguably too much, room for interpretation.

      Regarding 15.1, having seen your arguments, I would probably still tend towards 'False' based on claim I.9 requiring the door to be a fire protection door, which implies there being a door closer which "has to ensure that the fire protection door is closed in the case of a fire". This is a somewhat active formulation, which matches the function of a biasing-type of door-closer.

      In D3, there is a lock which may indeed keep a door closed. However, this relies on a person first closing the door and applying the lock. Does D3's lock thus reasonably "ensure that the fire protection door is closed in the case of a fire"? I would say no - the lock only ensures that a door which has been closed first by a person then stays closed. It does not, in general terms, ensure the door to be closed in case of a fire.

      You're right with this being a pedantic point, and of course your argumentation may be correct after all. Unfortunately, we won't know the intended answer until the results are published.

      Delete
    11. Nico I agreee with your points entirely, but only when "closed" is considered as a verb.

      I'm not really a multilinguist and it's no longer required for EPAs, but can anybody comment whether there is a possible discrepancy in the different language versions?

      The English and German versions appear to use is "closed" and "geschlossen ist" respectively, which (in my limited knowledge) can both be interpreted as active (verbs) or passive (adjectives). However, the French version "la fermeture", which (with my limited knowledge) may translate better as the "closure" seems to me to better indicate the active closing of the door.

      When "closed" is considered as an adjective, then (prior to release by the panic handle) clearly the lock of D3 "ensures that the door is closed". The entire purpose of the lock appears to be to ensure that the door normally remains closed. The door of D3 is probably initially closed "in the case of fire", so that it does not need to be actively closed, but the lock ensures that the door is in a closed state (i.e. "closed").

      If the French version is clearer and does not include the same ambiguity, then surely this portion of the exam favours French linguists?

      Delete
  17. Hi Nico,

    Thank your for posting your answers. For 18.2, this technical effect is in D1 ([003], "the calcium silicate plate 105 is thermally insulating"). I then answered false because I assumed a technical effect must be achieved over the closest prior art and D1 already has this effect. Was I wrong because a technical effect may be found in the prior art, and it is instead the objective technical problem that must be related to the technical effects that the invention provides over the closest prior art? Thanks.

    ReplyDelete
    Replies
    1. Hi Kevin,

      Good point but I think in this particular case the overall technical effect achieved by all features in the characterizing portion is certainly different from that of the CPA, but at the same time one of the features may have a same effect as another feature from the CPA so as to bring about this overall different effect. Namely, compared to the CPA, the heat isolation is provided in a different manner which brings about various advantages (see [0004] of the client's application) but at the same time still requires a feature to provide the heat isolation. Hope this makes sense :)

      Delete
  18. Can D2 be taken as evidence of a mediaeval disclosure of a fire protection door?
    The fact that D2 is a vintage art journal article does not detract from the disclosure of the door as such, which is in the related field of doors (and possibly even fire protection doors) and has been publicly available since the 14th century.

    Possibly only relevant to identifying D1 as CPA, but a point that does not appear to have been considered elsewhere.

    ReplyDelete
    Replies
    1. Hi Jake,

      I expect that there is no need to consider D2 as 'evidence'. Do which question are you referring specifically? For the questions, the date of D2 (whether it's, e.g., the 1950s or the 14th century) does not seem to matter.

      Delete
    2. Rather than the date of disclosure, it is more the field of the disclosure of D2 that may be relevant. D2 as such is a disclosure in the field of a vintage art journal, but the actual door of D2 is a public disclosure in the field of? Doors. Also given its infamy at protecting against fire, then the actual door of D2 (not the journal article) may be in the field of fire protection doors, of which the Skilled Person may be expected to be aware.

      It appears that the door that is referenced in D2 (not D2 as such) may be the closest prior art, so if a comment needs to be associatyed with a particular question, then perhaps 17.1 is relevant.

      Delete
  19. For 17.3 I think cardboard contains Wood fibers in view of D1's Statement. Even without looking at D1, I guess that it's common sense: cardboard is made of paper and paper is made of Wood. Can the Wood fibers be got rid of completly when processed into cardboards?

    ReplyDelete
    Replies
    1. Some kind of cardboard made from papyrus-like paper, or other non-wood plant fibres could exist. There's not really any disclosure in the exam paper to rule either way on this (since we're not supposed to bring in outside knowledge).

      Delete
    2. Thanks very much for your comments Mike. I now see the point. However, here is my Argument.

      first, I think for the exam, common sense cannot be totally avoid. For example, water between 0 to 100 C at room condition is liquid. Or, when Prior art say use water, it falls into the scope of "using moisture". This Kind of knowledge is not stated in exam paper and will nevertheless be brought in when answer questions, because they are just so "common sense". Otherwise, the exam paper would become bulky explaining almost every word.
      For me, cardboard containing of course Wood fiber belongs to such "common sense", at least in the exam. Considering that cardboard can be made of papyrus-like paper, for me, actually is brought-in knowledge. Not being in this field, cardboard made of Papyrus is Kind of non-familiar to me and I only realized it after seeing your reply. So I could only say that, in the exam, I immediately think cardboard contains Wood fiber without any extra brought-in knowledge just as thinking that water is a Kind of moisture btw 0-100 under normal pressure.

      Delete
    3. @Jackie

      Cardboard contains cellulose fibers, that is "common sense".
      true cellulose fibers can come from wood BUT all celluloses fibers do NOT come all from wood.

      i think D1 tend to precise a particular kind of cardboard contraining wood fibers because as Mike say you can have different kind of cradboard made of papyrus-like paper, and papyrus is not wood

      Delete
    4. Surely the fact that cardboard can be made of paper that is not made of wood is specialised knowledge....

      Delete
    5. Well, maybe I'm too ignorant in the exam to know that cardboard can be made of something aside from Wood. However, entering the exam without Background knowledge is exactly what we are supposed to do, i.e. being ignorant about knowledge of the field. Especially in view of the confirmation that the cardboard has Wood fiber. I think it's unfair for requring People outside of the field to know as common sense that cardboard can also be made of papyrus

      Delete
    6. Jackie,

      maybe the exam comity thought, that effectively we must come without background knowledge, including the knowledge that cardboard can be make with food fiber (i.e. being ignorant about knowledge of the field cardboard).

      so that D1 do a precision will bring to us a special knowledge for a special kind of cardboard.

      Delete
    7. Jackie, i agree with you. In my opinion, the less background to bring in the exam was to believe that a carboard is always made of wood. Knowing that a cardboard can be made of something else than wood seems a more advanced knowledge, as it's not a common knowledge. Moreover D1 don't clearly discloses that cardboard can be made of something else than wood... So according to Rule 22(3) IPREE, to me it's Cardboard = Wood fibers. Wait and see !

      Delete
  20. My (dissenting) comments, mostly on questions which I eventually answered differently while having considered arguments equivalent to yours - and finding them outwheighed by opposite considerations...

    15.2 and 17.3: I answered F/T respectively, based on the reading of [0003] in D1 that cardboard always contains wood fibers. The sentence says "The cardboard contains wood fibres distributed within the plate". Arguably, this is only relevant to this specific cardboard, but i) it could also be considered a general statement regarding cardboard, as opposed to the sentence right before that one specifying that "cardboard that contains calcium silicate" is used and ii) as far as I could tell without referring to online tools during the exam, cardboard is a derivative of paper and always contains wood fibres. The wikipedia article, although acknowledging that cardboard has no specific meaning, still considers it a "generic term for heavy-duty paper". I still think your answer may well be the one picked by the Examination Committee, against imho the very high odds that an Examiner would state in an examination report that a skilled person would directly and unambigously derive that D3 discloses wood fibres... and the pretty high odds, still imho, that an Opponent raising this argument would win the point.

    16.3 I couldn't resolve to answer F here, unlike 16.2. Indeed, the combination of 16.2 would explicitly cover unworkable embodiments, the combination of 16.3 leaves the skilled person with the teachings of the application to derive, using common sense, workable embodiments and exclude the unworkable ones. I would deem this to be acceptable. If representing the patentee, I would argue that the statement in [017] is that *such* a stepped door leaf is not suited for sliding doors and that the 'such' here specifically refers to the type of step represented in Fig.1, not to any step - the skilled person being perfectly capable to develop a stepped sliding door (e.g. with a step on only one of the two edges).

    19.3. The fact that D1 is a patent document does not prevent it from being combined with a journal. However, according to Guidelines G VII 6(i) and (ii), the origin of the documents is relevant to the obviousness of their combination. I realize that the question does not state the technical field of the patent and therefore the argument, worded as in the question, lacks some of its substance. However, one could argue that a patent is by essence a technical document, while a vintage art journal is not. They must therefore be considered from remote technical fields, whatever the field of the patent document! Obviously, the question would have been a lot less ambiguous if worded to state that D1 is a patent in the field of fire protection doors (the answer would unambiguously be T) OR merely stating that D2 is a journal, without specifying the field (the answer would unambiguously be F) .

    I guess that sums up all my good faith arguments... My other mistakes I can only "defend' using less good faith arguments ;)

    Thx for the answers and explanations!

    ReplyDelete
    Replies
    1. I also answered 15.2/17.3 F/T. I believe that the prior art document contained this feature to help people with not very refined knowledge on cardboard/paper to remember/recognize that cardboard always contains wood fibers.
      Regarding 19.3., I concluded that the technical field was too far removed, but I already had a bad feeling about that one during the exam. I agree that there is an ambiguity regarding whether the focus of the question was on journal or on the field of the journal. But I think now that maybe the focus of the question is not so much about the finding but merely about the combining of the documents?

      Delete
    2. Hi leonbeyr,

      Unfortunately, regarding whether D1's statement on cardboard and wood fibers is a definition or not will remain open to debate. Having seen the various argumentations, I still tend towards our answer but we clearly have no insight into the Exam Committee considerations so in that sence it's just "another opinion". Time will hopefully tell.

      Regarding 19.3, our answer was indeed based on the statement stating that "D1 is a patent application". Our answer would probably be different if the statement read that "D1 is a patent application from the field of fire protection doors and D2 is a journal in the field of vintange art", in which the argument would appear to be reasonable.

      Delete
    3. agree with you wit regard to Q16.3 see my comments above!

      Delete
    4. Being reasonably sure that my passing is not compromised, I am quite curious to see what the success rate will be... and how many appeals will be filed. I find the number of ambiguities somewhat disconcerting... Actually, the "cardboard" ambiguity is a voluntary 'subtlety' which is highly useless, turns out to be highly ambiguous (more so in French, too), and carries a four-point sanction. That is insane. I could almost say as much for the journal/patent question, which might not have been deliberately worded to be ambiguous, but could have been deliberately worded to be unambiguous, with no loss in terms of actually testing patent professionals...

      Pfff, I'm happy I (probably) made it, and feel sorry for any of those who were pulled below the bar because of the ambiguities.

      Delete
    5. My name is Dieter: Concerning 17.3: D3 discloses also wood - "aluminium or wood can be used as the outer surfaces" (last sentence [0004]). If you count the surfaces to the leaf and wood contains wood fibers 17.3 would be true - taking into account that the "or" between aluminium and wood in D3 allows you to combine wood and aluminium as surface materials.

      Delete
    6. Hi Dieter,

      I would say that is a rather unconventional interpretation which (probably) was not intended by the exam. Claim II.4 requires the door leaf to contain a plate containing wood fibers, and D3 states its doorleaf is made of a board (a plate) which contains fibers such as cardboard. Interpreting the layer on the outer surface of the door as being part of the door plate was probably not intended.

      Delete
    7. alias Dieter:

      Hi Nico,

      I am thinking about a doorleaf mad of a board out of cardboard furnished with aluminium coated wood. Such a think could be read out of D3. But I agree - maybe a bit to much interpretation.

      Delete
  21. Regarding Q20.2, the German version reads "ein Argument dafür, warum es nicht naheliegend ist, die genannte objektive technische Aufgabe ... zu lösen". The obejctive technical problem is formulated "in Hinblick auf D2". Thus, I considered the statement 20.2 to be wrong since it implicitly changes the closest prior art teaching and, in my opinion, when doing so the objective technical problem would have to be re-evaluated, so the statement does not fit the already formulated technical problem with respect to D2.

    ReplyDelete
    Replies
    1. I had the same reasoning. It could not be a valid argument if the argument didn't use D2 as the CPA.

      Delete
    2. I also had the same reasoning. The statement in Q20.2 is not related to the objective technical problem.

      Delete
    3. I also had the same reasoning.

      Delete
    4. Also even if solid wood of D2 would replace the material of D1 (according to the statement), skilled person could not fall into solution described in claim (Q20) because D1 does not contain "aluminum covers".

      Would this be an argument why 20.2 should be "FALSE"?

      Delete
    5. Q20.2: it is not that the statement is unclear. the statement is clear but wrong. exactly for the reason that the CPA is D2 and not D1. Q20.2 should be "false". In fact departing from D2 as closest prior art one cannot argue departing from the missing feature with regard to D1.

      Delete
    6. I fully agree with depressed that STATEMENT 20.2 is wrong:

      D2 is mentioned on the page before as being considered the closest prior art, so an argument starting from D1 is not correct: the argument shall be a modification made to the closest prior art using a teaching from a second document.

      M

      Delete
    7. I also gave a F to 20.2. D2 is the CPA. Can the SP, starting from D2, find hints in D1 for reaching the distinguishing technical features in the characterizing part starting from D2? This is the question in my view. The proposed argument is F because swaps the documents. The aim was perhaps to test if we know the PSA. I imagine to be the Opposition Division, and the defendant Comes to me with the argument in 20.2. What is the outcome of the Opposition?

      Delete
    8. But you forget that it is merely the opponent's opinion that D2 is the closest prior art.

      There was no statement like in the papers of the last years that we should consider it true that D2 is the closest prior art...

      Delete
    9. The question is whether or not valid arguments are indicated in support of the inventive step, given that the opponent proposes D2 as CPA, and given the OTP. I don't think we can deviate from these facts when answering!

      Delete
    10. But you cannot take the statements out of their context of question 20. On page 30, question 20 states "The opponent cites D2 as ... The opponent acknowledges ... differs from D2 in the features of the characterising portion of the claim, The opponent defines the objective technical problem with regard to D2 as to enhance the fire protection function ..." and the top lines on page 31 read "...indicate... whether the statement is a valid argument as to why it is not obvious to solve the _stated_technical_problem_ by the features of the claim".

      So, the context of the statement is clearly defined, and the statements need to be answered in that context, i.e. "with D2 the CPA, the distinguishing features as..., and the OTP as ...., a valid argument as to inventive step is..."

      Delete
    11. Thanks for the explanation.
      More points lost then :-(

      Delete
    12. Roel: Doesn't your statement above change the answer to false??

      Delete
  22. Q11.1: even if the term "in" makes the claim unclear the door does not necessarily have a door frame and at least not a door closer. therefore claim 1 defines the door leaf independently of the combination door frame and door closer (together). consequently the answer to Q11.1 should be "TRUE".
    Any comments,please!? I need two extra points to pass :-(

    ReplyDelete
    Replies
    1. Sorry, I think the term - clearly - must mean the claim is clear. Why else would the word clearly be included, when it is not in any of the other statements? Therefore, 11.1, for me, is F.

      Delete
    2. where could you clearly and unambiguously read in the claim that the claimed door leaf should comprise or relate to a door closer? if the question was saying a door frame only I could give you the benefit of the doubt, but a door closer is a specific feature which is not mentioned or referred to at all in the claim

      Delete
    3. I'm sorry, I don't quite follow your argument. Entirely seperately of whether the door leaf is claimed independently of the door frame and the door closer, the term "in" (door leaf "in" a fire protection door) is equivalent to the example (i) in Guidelines Part F, Chapter IV, section 4.15 (cylinder head "in" a four-stroke engine), which is deemed unclear, as it is not clear whether protection is sought for the cylinder head or the entire four-stroke engine.

      Delete
    4. according to the example of the GL you cited, if I ask you whether the claim clearly defines the cylinder head independently from a hydraulic steering arm, what would be your answer? the protection is thought in the example is not clear if it is the CH per se or a combination CH and FSE, but no hydraulic steering arm is mentioned. The same thing for the claim of the exam: no door closer is mentioned in the claim at all.

      Delete
  23. Q11.4. what a pity? reading the application I have underlined the thickness of at least 8cm as being essential and should be in any of the claims. but when answering Q11.4 I just looked at the wording of the claim and found it clear, but forgot about the essential feature

    ReplyDelete
    Replies
    1. Had the same mistake(?)

      Delete
    2. The same mistake for me too (not that it helps too much...)

      Delete
  24. Q20.4 I wonder, is it really a "teaching away" of a feature, if said feature is not mentioned in a preferred embodiment, but is mentioned in the broader embodiment? D1 e.g. also states that "different metal materials can be used".

    ReplyDelete
    Replies
    1. Well D1 says you should preferably use steel and gives good reasons for that, e.g. for better stability, which is a known problem for metal-based fire protection doors.

      D1 does not disclose Aluminium at all. So, if the skilled person were to combine D1 with D2, she would read that it is really good to use steel. Even if she considered using Aluminium, D1 would teach her to not do that because Aluminium already melts at 600°C whereas using steel is so advantageous because it melts only at 1300°C.

      Delete
    2. Hi Sanne,

      You're absolutely right that the mere fact that steel is mentioned as a preferred material rather than aluminium does not mean that D1 'teaches away' from aluminium. However, our consideration was that the skilled person learns from D1 that steel is preferred in part because of its high melting point of 1300C. Aluminium has a much lower melting point of 600C (see client's application). As such, the skilled person would probably be dissuaded from using aluminium but rather would seek out metal materials having a similar high (or even higher) melting point.

      Delete
    3. Your answer is based on your interpretation of the term "high melting point". It is however a relative term, so I don't think it does teach away from using aluminium. My opinion would be different if D1 taught a high melting point of at least xxx °C, higher than aluminium's melting point.

      Delete
    4. I have a different reading of the question. The CPA is D2 (an ancient Wood door). The problem to be solved is identified in enhancing the protection function.Does D1 hint the skilled person toward using aluminium as a covering (Feature a)? It hints at covering with metal and suggests steel as a metal. Steel is not teaching away from Aluminium, because the two metals reach the same technical effect for the purpose of enhancing the protection function. Namely, steel "withstands temperatures and maintains stiffness", and Aluminium "keeps the temeperature down" (end of [0016]). Thus, the teaching may be seen as "use a cover metal able to enhance protection. I noticed steel among others for this particular reason". This does not teach away, in my view, because another metal can reach the same object by another way. It this reasoning acceptable?

      Delete
    5. Misinterpeted: The patent in suit discloses that aluminium is used precisely because it melts at the temperatures of fire (meaning that less energy from the fire gets to the door). D1 says that steel is preferred because it definitely will not melt. It can therefore be assumed that a) aluminium melts at typical fire termperatures (since the specification should be assumed to be factually correct), and b) the skilled person, on reading D1, would consider this to be a bad thing.

      Delete
    6. Mike: this ils ex poste facto analysis. D1 says steel ils prefered but any métal can be used. Aluminium ils a métal. So it can be used. There ils no prejudice in using Al

      Delete
    7. Further to my reply hastily written on a smartphone: D1 discloses that any metal can be used but that it is preferred that it has a high melting point.
      To conclude that a document teaches away from using something, my thought is that you need a more general statement, for example "a metal with a high melting point MUST be used".
      in that case, I agree, you would be taught away from using aluminium.

      but in my view, a preferred embodiment does not teach away from a general statement teaching that anything can be used.

      Delete
  25. 16.4 F No support for the plate being made of a material containing fibers other than wood fibers - Here even if I.5 was dependent on I.1, it would be acceptable right? OR would it be a generalization?

    ReplyDelete
    Replies
    1. Yes, if I.5 was dependent on I.1 as well ("according to claim I.1 or I.2"), than changing the dependency to only I.1 would not contravene Art. 123(2), which was the question here. Of course, given the fact that the application only discusses the use of wood fibers, there still may be Art. 83 (disclosure) and Art. 84 (support) problems.

      Delete
    2. So are you changin your answer to "True" :)

      Delete
  26. 17.4 F D3 lacks a door closer which according to [0002] of the client's application is required for a door to be (suitable as) a fire protection door - "especially" is not limiting right? If not, then the biasing mechanism is present in D3, rendering it closest prior-art?

    ReplyDelete
  27. 18.1 T According to [0006] of the client's application, solid wood is resistent to bending (note that this appears to be a general statement independent of thickness) - The distinguishing technical feature in II.2 is "major surfaces of the plate are fully covered with an aluminum layer" - The technical effect of this (even if in II.2 we talk about Wood plates) is to release moisture and cool the inner side (no thermal bridge). There is no indication that the aluminum covering is used to assist in reducing bending.

    ReplyDelete
  28. 19.1 T According to [0004] of the client's application, there is no need for additional stiffening which indicates a simplified construction - I am not sure if this is the objective problem again because of the technical effect of the "distinguishing technical feature" not alluding to bending/stiffening etc.

    ReplyDelete
  29. 20.2 T Unclear statement since it suggests D1 is the CPA whereas question indicates that D2 is CPA. But indeed no indication in D1 that the plate's material could be replaced by solid wood - Disclosure [0009] states "Solid wood contains mainly wood fibres that can store moisture" - Could this not be construed as common general knowledge, therefore making this statement "False"?


    20.4 T D1 teaches that a material having a high melting point is preferred, teaching away from the use of aluminium (having 600C melting point according to [0016] of client's application, being significantly lower than the 1300C of steel which is preferred by D1, see [0002] of D1) -

    D1 states that metals in general could be used - how does this teach "away" from Aluminum? D1 [003]

    ReplyDelete
    Replies
    1. Hi Jo,

      Regarding 20.4, see the same comment I have to Sanne: the mere fact that steel is mentioned as a preferred material rather than aluminium does not mean that D1 'teaches away' from aluminium. However, our consideration was that the skilled person learns from D1 that steel is preferred in part because of its high melting point of 1300C. Aluminium has a much lower melting point of 600C (see client's application). As such, the skilled person would probably be dissuaded from using aluminium but rather would seek out metal materials having a similar high (or even higher) melting point.

      Delete
  30. Thank you for putting up the answers so fast - although I find them a bit depressing.

    Nico, what are your general thoughts on the difficulty level of this part?

    ReplyDelete
    Replies
    1. Hi Charlie,

      From a technical level (difficulty of the invention), I would say the claim analysis part was fairly straightforward. However, there appeared to be more ambiguity in the questions/statements, making the exam - in my opinion - more difficult than last year's.

      Delete
  31. Q11.4: I had false, but because it used the term "made of" solid wood. I thought that the "made of" was unclear.

    ReplyDelete
    Replies
    1. Hi LS,

      I think "made of" is interpreted in a same way as "consisting of", which I would consider to be clear.

      Delete

  32. Is the thickness an essential feature of the invention?
    Reading paragraph [0008] alone I would say No. Reading paragraph [0014] I would say Yes. However, the statement in paragraph [0014], last sentence, is not correct with respect to "any other type of solid wood".
    There is wood which is denser than oak and therefore it burns even slower, see my post above. Therefore, the last sentence of paragraph [0014] can be considered as an obvious error and consequently, it could be deleted. Thus, one would arrive that Q12.1 is True.

    ReplyDelete
    Replies
    1. Hi M. Hofrath,

      I'm afraid you may be using your own knowledge in that there may be wood which is denser than oak and therefore may burn even slower. According to Rule 22(3) IPREE, "candidates shall accept the facts given in the examination paper and limit themselves to those facts. (...) Candidates shall not use any special knowledge they may have of the technical field of the invention." As such, I would argue that it follows from the client's application as a whole that the thickness of 8 cm for solid oak and 10cm for other types of solid wood is an essential feature of the invention.

      Delete
  33. Is it true that in this pre-exam 2015 at least 75 points (instead of 70) is required to get "PASS" ?

    ReplyDelete
    Replies
    1. No, the limit in this year was raised to 80 points

      Delete
    2. PassedQuestionable24 February 2015 at 22:01

      No, it is 70 marks
      http://documents.epo.org/projects/babylon/eponot.nsf/0/2A262D0CB6D7C559C1257BFF00516F0F/$FILE/Decision_Supervisory_Board_10_2013_en.pdf

      Delete
    3. But this applies for the 2014 pre-exam, there is a new decision for the pre-exam 2015?

      Delete
    4. Come on mr Anonymous - what types of games are you playing with us?!?!

      The pass level is 70 for European qualifying examinations (pre-examination) held as from 2014 - and it did not change.

      To all other candidates: refer to the EQE webpage at http://www.epo.org/learning-events/eqe.html.

      If you are serious, I consider you having no chance to pass.

      If you are trying to annoy us, I propose DeltaPatents will delete all your posts and prevents further posts by you.

      Mark

      Delete
    5. As correctly indicated by PassedQuestionable and the above Anonymous, the pass level for the Pre-Exam of 2015 is set at 70 points or more.

      Delete
  34. On 15.2 I would agree with the reasoning that "D3's fibers are cardboard fibers and not wood fibers as claimed in claim I.2" but in par. [0004] of D3 it says that layers of any material such as aluminum or wood can be used as the outer surfaces. Since the definition of the "plate" in the claim is not more precise and the word "layers" (more than one) in D3 this means that some of the layers can be incorporated in defining "the plate" and these layers can be out of wood...

    ReplyDelete
    Replies
    1. Depressed (not anymore)25 February 2015 at 09:41

      respectfully disagree! claim I.6 has a combination of wood fibres (claim I.2 on which I.6 depends) and Aluminium cover (claim I.6 itself). The mentioned paragraph [0004] is used for the for the feature Aluminium covering of I.6 and CANNOT be used (also) for the feature wood fibre, because the said paragraph does not mention using the two in combination : "aluminium OR wood plates".
      To use your argument D3 should say at least "AND", i.e. :"Aluminium AND wood plates" or at least :"Aluminium AND/OR wood plates"

      Delete
  35. Concerning the fact that "cardboard fibers are not (necessarily) wood fibers"... It is true. But fact is, that according to common knowledge, cardboard always comprise wood fibers (plus other kinds of fibers...) At least for french people.....
    http://www.cercle-recyclage.asso.fr/publications/dossiers/item/407-recup03-recuperation-et-recyclage-des-produits-papiers-cartons-en-france.html

    ReplyDelete
    Replies
    1. Agree! As discussed in the previous post, some components of cardboard can well be non-wood e.g. Cotton, grass, etc. Non-wood fibers are short and are used in flexible materials --> common paper, tissues etc. However, for cardboard which is required to have a certain strength, long fibers must necessarily be used. These fibers can only originate from wood. Therefore, all kind of cardboard necessarily contain wood fibers. This is common and specialized knowledge!

      Delete
    2. Dear Eucalyptus,

      I expect that Rule 22(3) IPREE would play a role here:

      "Candidates shall accept the facts given in the examination paper and limit themselves to those facts. (...) Candidates shall not use any special knowledge they may have of the technical field of the invention.".

      As such, an electrical engineer, having no particular knowledge of cardboard, fibres, etc, such be able to pass the pre-exam based on the facts given in the paper alone.

      It remains arguable whether D1 indicates that cardboard necessarily comprises wood fibers. Our conclusion is that D1's statement relates to its particular type of cardboard and not to cardboard in general. However, admittedly, we may be wrong...

      Delete
    3. Nico: The issue is which side of the argument is bringing in special knowledge.

      Let's say we had an example where one document disclosed "water" being in a tank, and another document disclosed "a liquid". To a layman, water is clearly a liquid, but thinking through it a bit more, "water" could also refer to steam or ice, so does not necessarily disclose a liquid. Is assuming water to be liquid water specialist knowledge, or is taking the broader view which comes from deviating from the initial assumption that most people would make specialist knowledge?

      In this case, by most people's understanding, cardboard is made from paper which is made from wood fibres. Now, other types of cardboard are possible, but a layman would not necessarily consider them cardboard!

      Or, to take a further example, say that the claim specified "cardboard", with no further description given, and the prior art specified "a rigid sheet material made from cotton fibres". Now, clearly that would be a badly written question, but claiming that the term "cardboard" encompassed the prior art would likely be considered bringing in technical knowledge.

      (For reference, I decided that cardboard did contain wood fibres for my answers, but I can see the arguments either way).

      Delete
    4. Actually, with some wiki walking, this question gets even more confusing if you do have specialist knowledge! https://en.wikipedia.org/wiki/Wood-free_paper is in fact made from trees (and is different to tree-free paper, which is not). So even cardboard which started out as a tree would not contain wood fibres by the industry definition. All in all this was a fairly horrible question which could easily have been solved by the prior art being a touch more specific, or having one of the other documents mention cardboard which does not contain wood fibres.

      Delete
    5. Hi all,

      That we have such a long discussion on the cardboard topic WITHOUT coming to a defininate conclusion, or at least to a conclusion as what the pre-exam committee intended shows that there is a big problem with Art.22(3):

      The facts given in the examination paper are clearly not complete, so answering while limiting yourself to the facts of the paper is IMPOSSIBLE where a missing fact is needed to come to the intended / expected/ wanted interpretation and then the intended / expected/ needed anwer to be considered correct.

      So, I think is it a major error from the committee that the pre-exam was not defined to be able to comply with 22(3). We can only hope and pray that the pre-exam committee, the examination board or the supervisory board acknowledges this error and find a solution that is fair to all candidates concerned a.s.a.p.

      Apart from hoping and praying, I also want to respectfully request the pre-exam committee, the examination board and the supervisory board to consider the cardboard issue as soon as possible, so that myself as well as the other candidates get our pre-exam grade over three weeks based on a fair treatment. Failing to recognize an error is much worse than correcting an error (everybody makes errors every once in a while and designing an exam in a completely unambiguous manner is very difficult I would think): no need to blame them if they take appropriate action in an adequate time frame!

      Best regards & good luck to all!

      Wil

      Note: am I correct that the cardboard question (genus-species vs common general knowledge/ every day knowledge) has a decisive effect on 4 or maybe even 5 statements (depending on how you exactly read not only the statement but also D1, D2 and D3 in the light of the taken cardboard interpretation), so may have an effect of 8 to 10 marks!!!???

      Delete
    6. I ask my family members (from 20 to 70years old) to answer the following question spontaneously: "Is there any wood in cardboard?".... Everybody said "yes, of course"....

      Delete
  36. One question that has not been discussed is 17.2. I do not see how this can be T. The claim in question is II.5. This claim relates to a "door according to claim II.4, wherein...". Surely for D2 to be the closest prior art it must at least have all the features of claim II.4, which could also be said to correspond to the first part in the 2-part form. However, D2 does not disclose a door where the plate is covered with an aluminium layer. Instead it discloses metal. Furthermore, the pivoting feature comes later, in what corresponds to the second part of the 2-part form of claim II.5. I therefore took D3 to be the closest prior art here and answered F. This argument of course hinges on the 2-part form being applicable here...

    ReplyDelete
    Replies
    1. Dear Anonymous,

      None of the claims appears to be cast in two-part form - the term 'wherein' is not equivalent to 'characterized by' (or at least the EPC/GL do not indicate such an equivalence).

      Delete
    2. Yes, it is equivalent, even though not stated in the two-part form paragraphs of Guidelines - GL (Nov 2014) F-IV, 2.2 and 2.3:

      however, the GL shows examples in GL (Nov2014) in G-VI 7.1.2 on page VI-6 (English version) and G-VI 7.1.5 on page VI-9, which indicate the equivalence.

      Delete
    3. I don't think that the examples of "Second or further medical use of known pharmaceutical products" in GL (Nov2014) in G-VI 7.1 is a very good legal basis for suggesting that "wherein" is equivalent to "characterised in that".

      The GL (Nov2014) in G-VI 7.1 do not even indicate that these "wherein" claims are in the two part format. "characterised in that/ wherein" may indicate alternative terms, such as to differentiate between two part format and "non two part format" claims.

      There are at least several thousand cases where the EPO objects to claims not being in the two part format because they use "wherein" and not "characterized by". Typically, Examining Divisions change "wherein" to "characterized by" in the Druckexemplar in order to put claims into the two part format.

      British patent attorneys typically avoid the two part format; and one of the generally recognised terms for avoiding the two part format is "wherein" (although that is also often avoided to remove the temptation for the EPO to amend to "characterised in that").

      Delete
    4. Claim II.5 also has two terms "wherein", such that Anonymous' and Roel's reasoning would make claim II.5 a "three part format" claim, with D2 still comprising all of the features of the pre-pre-amble.

      Delete
    5. I would NOT recommend to candidates that they use "wherein" in EQE papers when attempting to put claims into a two part format (e.g. for papers A or B). Please use "characterised in that" or "characterised by".

      Delete
  37. I am wondering, that in a test with the true or false statements, why it is not possible to put clear questions or clear description? If this is a pre-exam, why it cannot be written explicitly and simply, since there is no possibility for any argument. Besides, it is also interesting to see that even the tutors are not sure what is the correct answer..

    ReplyDelete
  38. With respect to Q 15.2, I see that you do not mention the disclosure of D3, [0004], 2nd sentence. This sentence is a clear disclosure that the door of D3 can contain wood (so also wood fibres). So claim II.2 is clearly not novel over D3 and D3 discloses also an aluminium layer. The question (1) is : does D3 disclose a combination of wood and aluminium ? I would tend to say yes because the "OR" is not clearly exclusive and "layerS of any material..." implies that there may be many layers (some of wood, some of aluminium and also more than one layer on each side). So D3 discloses, IMHO, a door with wood fibres and aluminium layers. The question (2) is then is D3 disclosing "both MAJOR surfaces of the plate are covered by an aluminium layer" ? I tend to say that the term MAJOR is so vague that it does not imply any clear limitation other than the presence of aluminium on both side in a certain amount which is also a construction falling under the scope of layers of wood and aluminium disclosed by D3. So I would say for 15.2 that II.6 is not novel over D3. Without any guarantee.

    ReplyDelete
    Replies
    1. @Jo: I am not sure I agree with you there...

      In the first part of [004] the door leaf (501) is described. The second sentence you refer to relates to the door (500), i.e. to the major surfaces of the door in general. Therefore, I do not think that the wood or aluminum layer of the outer surface of the door would be part of the door leaf itself.

      Delete
    2. @Ela : D3 ([004]) teaches that the door (500) comprises the door leaf (501) and the door frame (502). I think we can assume that the disclosure of [0004], 2nd sentence, is meant to apply to these parts. If not, which one ?

      Delete
  39. With respect to 20.4, you say that D1 teaches away from using aluminium (because of the melting point). I disagree. Let's imagine an hypotetical document D4 teaching that aluminium can be used for fire protection door (despite lower melting point) because this disadvantage is compenseted by the new advantage of building lighter/cheaper door. Will the combination of D1 and D4 be "taught away" by D1 ? I don't see where... For me, D1 only proposes a preferred embodiment (using steel), it does not exclude explicitly to use any other metal.

    ReplyDelete
    Replies
    1. but D1 discloses that the metal should resist to high fire temperature. Aluminium can't. This also mentioned in the application that aluminium will melt by fire. exactly this characteristic "melting" is used in the application to solve the particular problem of bending etc. so Aluminium can be excluded from D1. D1 clearly teaches away from using Aluminium

      Delete
    2. I also came to the conclusion that 20.4 was 'False'.

      To repeat my reasoning followed in the exam - D1 doesn't say that the *metal* needs to resist high fire temperatures, only that 'door leaves for fire protection doors must withstand fire for a sufficient time wherein the side facing away from the fire must not become too hot'. It merely says that steel is preferred as a metal. D1 also states that steel can withstand temperatures occurring during fire and maintain its stiffness. This is not a required feature of the generic metal, but a beneficial feature of steel.

      This does not mean that aluminium cannot be used as a metal. To teach away from using aluminium, D1 needs to either (a) explicitly teach that aluminium is not suitable, or (b) put specific requirements on the metal that the skilled person, using his/her common general knowledge, would be able to infer that aluminium is not suitable. D1 clearly does not recite (a). I would also argue that it does not recite (b). In particular, D1 teaches that the evaporation of water will cool the metal in the case of fire, and a skilled person cannot assume that this cooling effect will be too small to make aluminium unsuitable.

      Furthermore, all we know is that aluminium has a melting point of 600 degrees C, which means that when it is applied to the door of the patent specification, it will melt. It does not automatically follow that it will melt when put on other doors, such as that of D2.

      I therefore infer that D1 does not teach away from using aluminium.

      Delete
    3. Further I would add that the question refers only to D1. I therefore understand it as "Does D1 AS SUCH teach away from using aluminium fire on protection doors". The melting of aluminium at 600°c is not part of the disclosure of D1 itself. I'm not sure it should be considered. Furhter, D1 does not set any lower limit for the melting point of the metal door leaf. On which base you can assert that D1 considers that 600°c is not acceptable ? It just says that 1300°c is good and recommend it without setting a limit for the lower value.

      Delete
  40. One month of torture26 February 2015 at 12:39

    First of all, thanks for the good work guys, really appreciate getting an indication from the tutors how the exam went and of course the probable solutions.

    I did have a question on how close you guys think these solutions are to the official ones, maybe based on previous years' results. I do understand the previous pre-exams were a little bit more straightforward, and there are a few questions marked as being questionable. Also, the ones not marked at questionable, you feel they are pretty solid? Trying to get a bit of peace of mind at about 75 marks based on your solutions. Am hoping there will be no wild 10 pt variance or so!

    ReplyDelete
    Replies
    1. Hi 'One month of torture',

      Unfortunately, that's difficult to say. If I remember correctly, last year our answers to the legal part were spot-on (at least when taking into account the correction after appeal to one of the legal questions) whereas we had two 'errors' in the claims analysis part.

      Ultimately, the statements in the claim analysis part leave more room for interpretation which means that I expect that it's possible to deviate from the 'official' answers in a small number questions (and hopefully not more). Time will tell..

      Personally, I would say now it's time to take your mind of the exam - you cannot change the answers anyway, nor will worrying about it do you any good.

      Delete
    2. One month of torture26 February 2015 at 15:18

      Thanks for the quick reply Nico.

      Just one more brief question: do you know how they will communicate the results to us? An e-mail or they publish the marks with all the candidate numbers on them?

      Delete
    3. Last year, the results were first made available on 24 March as a provisional list of EEQ registration number + score - those scores were strictly speaking not official: you needed to wait for the official results letter a few more days.

      The official results letters were dated 28 March 2014, at least for the candidates that appealed in cases D3/14, D4/14 - I assume for all.

      Delete
    4. One month of torture26 February 2015 at 17:02

      Thanks for the clarification Roel. I guess now we play the waiting game. Best of luck to all!

      Delete
  41. regarding question 9.1:
    In the EPA Guidelines there are two different important points mentioned:
    a) "at the filing date" for A.83, R.42: see F-II-4.1, 2. sentence
    b) "one day before the filing date" for A.56: see G-VII-4., last sentence
    Thus, to my mind there is a delta of one day regarding the state of knowledge
    (d.h. der "Wissensstand" ist unterschiedlich).

    ReplyDelete
    Replies
    1. Your question is answered in the parallel post "Our (provisional) answers to the Legal Part of Pre-Exam 2015".
      Let's continue -if appropriate- the discussion on 9.1 there.

      Delete
  42. Just in case this becomes relevant...

    Does anyone know if every single person has to appeal the "fail" himself, or if the marks for successfully appealed questions are automatically given to all candidates who had the question wrong originally?

    ReplyDelete
    Replies
    1. I think you only get marks if you file an appeal...

      Delete