Pre-Exam 2019: the results are out!
The Pre-Exam 2019 results are out! They can be found here.
In the list, results for the pre-examination of the European qualifying examination 2019 are listed according to the EQE Registration Number (EQEReg).
The list also indicates that dispatch of the result letters is foreseen for 18 March 2019. Only results as
notified to the candidates in the results letter are binding.
Pass rate
If my tools and myself did not make any errors, I come to a very high pass rate:
920 candidates enrolled
107 scored 0-69, 813 scored 70-100, so: 11,6% fail and 88,4% pass of all that enrolled.
880 candidates actually sat the exam. of these:
67 scored 1-69, 813 scored 70-100, so: 7,6% fail and 92,4% pass of all sitters.
Scores varied from 30 to 100. 10 candidates scored 100 out of 100; 383 scored 90 or more.
149 candidates that failed in 2018 enrolled for this year's exam; of these, 139 sat the exam, and scored in a range of 40 - 94 marks. Of the ones that sat, 84,2% passed (78,5% from those that enrolled).
Congratulations to all who passed!
Examiner's Report
The Examiner's Report is also available (here).
Our answers (legal and claims analysis) would have attracted full marks.
(Only) Statements 19.1 and 19.2 were neutralized. For 19.1 and 19.2, the arguments given in the Examiner's Report is:
Claim A.1 results from the combination of claims 1 to 4 as originally filed, and the feature of paragraph [003] last sentence. Claim A.2 is based on the combination of claims 5 and as originally filed. Therefore, the statements 19.1 and 19.2 are True.
However, there is a potential difference in scope between the wording in the description(e.g. paragraph [003] last sentence) and the wording of claim A.1 (“pass through” vs.“extending through”) in the English version. Also there may be valid counter-arguments inview of an un-allowed intermediate generalization. For this reason it was exceptionallydecided to award marks for both answers, True and False, for the statements 19.1 and 19.2.
In the list, results for the pre-examination of the European qualifying examination 2019 are listed according to the EQE Registration Number (EQEReg).
The list also indicates that dispatch of the result letters is foreseen for 18 March 2019. Only results as
notified to the candidates in the results letter are binding.
Pass rate
If my tools and myself did not make any errors, I come to a very high pass rate:
920 candidates enrolled
107 scored 0-69, 813 scored 70-100, so: 11,6% fail and 88,4% pass of all that enrolled.
880 candidates actually sat the exam. of these:
67 scored 1-69, 813 scored 70-100, so: 7,6% fail and 92,4% pass of all sitters.
Scores varied from 30 to 100. 10 candidates scored 100 out of 100; 383 scored 90 or more.
149 candidates that failed in 2018 enrolled for this year's exam; of these, 139 sat the exam, and scored in a range of 40 - 94 marks. Of the ones that sat, 84,2% passed (78,5% from those that enrolled).
Congratulations to all who passed!
Examiner's Report
The Examiner's Report is also available (here).
Our answers (legal and claims analysis) would have attracted full marks.
(Only) Statements 19.1 and 19.2 were neutralized. For 19.1 and 19.2, the arguments given in the Examiner's Report is:
Claim A.1 results from the combination of claims 1 to 4 as originally filed, and the feature of paragraph [003] last sentence. Claim A.2 is based on the combination of claims 5 and as originally filed. Therefore, the statements 19.1 and 19.2 are True.
However, there is a potential difference in scope between the wording in the description(e.g. paragraph [003] last sentence) and the wording of claim A.1 (“pass through” vs.“extending through”) in the English version. Also there may be valid counter-arguments inview of an un-allowed intermediate generalization. For this reason it was exceptionallydecided to award marks for both answers, True and False, for the statements 19.1 and 19.2.
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that's excellent news and such a high pass rate! once again, thanks for your prompt answers on the claim and legal analysis bit - definitely put my mind at ease. Good to know I passed :)
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteWell done on passing the pre-eqe... again :-D
ReplyDeleteThank you for the effort you make to have qualified answers ready within days. It is a big help and very appreciated.
Only 19.1 and 19.2 neutralized?
ReplyDeleteNot 11.1, where (quoting a comments from the claims analysis blog:) the French version of I.9 did not use the usual 'standard' terms as they are used in (the English, the German and French version) of the Guidelines, by using "se comporse of" rather than "constituer de" in I.9.
DeleteThis is more than unfortunate: it puts the French candidates in a worse position than the English and German candidates: the English and German lanigae candidates can explicitly get the meaninng from the term in the claim from the Guidelines and use the Guidelines to confirm their understanding, but the French candidates cannot find the term that is used in the claim in the Guidelines and cannot have that confirmation; even worse, they may have used a lot of time to find it elsewhere in the Guidelines than in the deciated paragraph.
There is no justified reason why the French version deviates from the standard terminology whereas the English and Germen version comply with it.
Sufficient reason to appeal. File your appeal in French to strengthen your point.
FR
Not 2.3, where I saw it was argied that the search center is also a place of business so that Pedro can talk as employee from an EPC-state based company? I\Visser and the EPO Online course bot say that "principle place of business" is not only or not necessarily "headquerters" but can be any place with substantial or serious economic activity? Even if those are not official legal courses, a Pre-Exam candidate must be able to rely on what is given in the EPO online course, isn't it?
DeleteSo far for my 2 cents as to doubts.
I also want to emphasize that I consider this a very well-drafted pre-exam (and that these 2 points are only of minor relevance - the first not likely having affected many (only those FR that doubted the meaning of the term), and the second being only based on possible errors in off-syllabus material)!
Thanks for the blogs!
FR
Not 9.1, where the argument in the Examiner's Report wrongly refers to the previous version of Article 11(a) Rfees ("assumed responsibility" vs "examination has started)"?
ReplyDeleteNot 19.4, where a document directed to structures for bicycles is used as closest prior art for the invention (the statement does not mention claim A.1), where [001] defines the invention to be in structures for aircraft wings? The closest prior art to the invention shall match the field of the invention as defined in the application, isn’t it?
ReplyDeleteNot 19.4 just because it does not refer to a claim? So is not well-defined?
Not 20.1, on which I saw a discussion on the blog with the claims analysis answers? Those comments indicated that the STRUCTURE was strengthened rather than the PLIES themselves. I agree with that view. So 20.1 shall be True.
ReplyDelete(Example: Plywood is strengthened by the plies being glued together and put at 90-degree angles on top of eachother. That strengthens the whole structrue, but the plies themselves are just what they are. See https://en.wikipedia.org/wiki/Plywood)
Not 7.2 due to Art.89 effect on Art.60(2) and Art.87(3) on which I saw a discussion on the other blog, with the legal answers?
ReplyDelete2.2 and 2.3
ReplyDelete"As a general rule" means usually or in most cases according to dictionaries. It is not a clear wording for determining the person who can make submissions. According to guideliness:
Submissions by a person who is not qualified under Art. 133 and 134 to represent parties to proceedings before the EPO may be admitted at oral proceedings when this person accompanies a professional representative representing that party. Such submissions, however, cannot be made as a matter of right, but only with the permission and at the discretion of the examining or opposition division or the Legal Division. In opposition proceedings the division will consider in exercising its discretion whether (see G 4/95):
(i)
the party on behalf of which the person is to speak has filed a request to this effect;
(ii)
the party making the request has indicated the name of the person, the subject-matter of the submission and the person's qualification to speak on this matter;
(iii)
the request has been filed sufficiently in advance of the oral proceedings;
(iv)
in the case of a late-filed request, either there are exceptional circumstances justifying the admission of the submission or all the other parties agree to the making of the submission; and
(v)
the submissions are made under the continuing responsibility and control of the professional representative.
(iii) is not satisfied:
Delete"On the day of the oral proceedings you arrive with Sarah, but also
with Jane and Pedro, whose intention to attend was not previously made kn"
Further, "exceptional circumstance" of (iv) cannot be considered "as a general rule"
DeleteCongrats to everyone that passed! Thank you, Delta Patents for all of your help. I imagine the main exam will be tough in 2020 because the pre-exam in 2019 had a higher pass rate compared to previous years.
ReplyDeleteThe legal questions were hard for pre eqe 2019. I think the 2018 pre eqe exam being so hard and had a lower pass rate, it would of had a knock on effect for this year.
DeleteIt would be unfair to make the EQE extremely hard because there is a higher pass rate for pre-EQE. As mentioned above, part of the reason for the high pass rate was because pre-EQE 2018 was such a poor paper.
DeleteIt wouldn't be fair if EQE decide to make EQEs 2020 harder than usual. They have already changed Paper D format so we will need to see. It will already put pressure on candidates to know DI and DII very well whereas before, candidates only focused on DII and can still pass with minimal preparation for DI.
So Paper D will already be a difficult one for training and learning. No need to make it extra hard.
There is no indication that EQE 2020 will be made harder than usual.
DeleteBut there will be an effect of the annoucement that the DI:DII ratio in paper D will no longer be fixed to 40:60 marks (and 2h:3h expected time), but may vary. It was announced that expected variation may be in a range 40:60 to 60:40. Quite some candidate will consider a D paper with 60-marks for DI an even larger challenge than with 40 marks. But some candidates will be happy that the DII part may be smaller. A big challenge will be how to deal with the uncertainty in your preparation and in your exam plan.
See http://eqe-d.blogspot.com/2018/10/changes-to-be-expected-for-d-2020-and.html
Hi Roel. I know its still early but is there any way you think we (as in candidates) can prepare for this change. Do you think we need to approach our revision differently and time. For example, if DII is 40 marks, would this mean that there is less content to read/answer. Otherwise, we could still end up reading alot of DII material if based on previous years.
DeleteBy the way, I will be buying Delta Patent training materials because I think you've done such a brilliant job with the pre-EQE blog. I passed this one all thanks to the Delta team.
Karl
That is a good point actually. I presume that the questions will be at an appropriate length depending on the marks as allocated in the exam for Paper D.
DeleteWe certainly don't want a repeat of pre-EQE 2018 where there was no time at all.
G.M
The D committee had to make major adaptations to the lemngth of the paper before: until and including 2012, it was 3h DI in the morning, then a break, and then 4h DII in the afternoon, so in total 7h. As of 2013, it is a single 5h paper (for which you get 30 min extra to do it), where points are proportional to time, so it was designed as 2h DI for 40 marks and 3h DII for 60 marks. The committee will be able to adapt to theer ratios. I expect that the length of the DII part will vary, but the time needed is not necessarily proportional to the number of words in the paper, but rather to the number of topics to recognize and discuss and their complexity. There is no 2h DII-papers (or DII-cases) from recent years, but you can surely practice with those (certainly when updated to current law, e.g. from our webshop). In my view, the aim is not to make more or less difficult DII parts, but the aim is to let candidates better prepare for the legal topics as they are tested in the DI-part and needed in the DII-part for answering.
DeleteHi Roel. When would your materials on the webshop be ready for candidates to start practising for 2020 on all papers.
DeleteKarl
thanks Roel. As long as the D-committee recognizes the potential problems with time and plan for a paper according to what you've said, then that would be fair.
DeleteWe update our material every year for law changes, OJ EPO, new Guidelines (both types), new Euro-PCT guide, PCt Applicant's Guide, ... We want to update as late as possible to be as upt-to-date as possible for the next EQE (cutoff 31 Oct 2019), but we want to have it available as early as possible to let everybody practice and to sue it in our courses,
DeleteWe hope to have our Q&A books (e.g. our Main exam questions for paper D) updated in June, and we update model solutions afterward. That is usually a good compromise. It will also depend on the availability of the updates of some of our references.
Our current versions are of course close to up-to-date and -if you are ware of the legal changes since May last year- quite well suitable if you want to start early.
Hello Roel, Would you mind putting/setting up a new link as to when you think the books will "as up to date" as it can be and be ready in June. I would also like to start using Delta Patents for my EQE revision.
DeleteThanks so much.
PJ
me too. if you can let candidates know in June when the books are available that would be great.
DeleteSara
@Anonymous 12 March 13:02-13:14
ReplyDeleteIndeed, only 19.1 and 19.2 neutralized. The other statements that you bring up have been extensively discussed in comments to our blogs with our legal answers and with our claims analysis answers. I refer to those comments for (good and bad) arguments con and pro. It is likely that they/some of them have been seen and considered by the Committee as well, but that they were not convinced.
If you passed, it may be good to know that in paper D, you get a lot of marks for your reasoning - if that is largely correct, but leads to a wrong answer, you may still get many marks.
I can well imagine that, in a DI question, you can get quite some marks if you argued based on the plies vs structure argument in an open version of 20.1; and likewise for the 7.2 argument to a new filing with priority to effectively receover the right to X. But, for 9.1, as long as not responsible they cannot start examination, so I donot see where that could help you. For 19.4, in my view the claim is not limited to aircrafts, not even as "for aircrafts", so you just need the CPA for what is claimed - which could be such kind of structure in any field; whether a CPA from the bicycle field is very robust against amendments to the claim which would limit it to aircrafts is not asked, but could in real life be a good reason to look for a CPA in the expected field of limitation.
Just my view, any other comments welcome.
Thanks for your quick analysis of the paper, congratulations on the full marks! ;)
ReplyDeleteI think this is a sound decision from the EQE authority regarding 19.1 and 19.2: very much enjoyed the debate regardless, but now each side is satisfied!
This years paper had, in my view, a good claims analysis format (2 specs, 2 prior art docs each), and I hope this continues for future candidates.
See you all in EQE A B C and D 2020!
I agree.
DeleteThe decision to neutralize 19.1 and 19.2 and only those seems to also reflect most of the arguments on the blogs. For these two, the various arguments pro and con were strong, which also reflects in the comments in the Examiner's Report. Also some other statements were challenged in the blog, but not neutralized: those arguments were possibly not seen or not sufficiently convincing for the Examination Committee and/or Examination Board.
I also appreciated the claims analysis format of this year's exam: 2 specis, 2 prior art docs each, concise embodiments, concise claims, concise statements, such that candidate could focus on applying the claims analysis tests and provisions and were not as much occupied with double-checking their bookkeeping (checking whether they compared the correct claim with the correct embodiment of the correct prior art document).
I hope this theme continues with the main EQE paper. There's nothing more irritating then being tested on "book keeping tasks" rather than the actual EQE laws etc...
DeleteI agree that the pre-EQE 2019 is a very well balanced paper. Claim analysis was right. Legal questions were slightly harder than usual but overall good. The 2018 claim analysis was terrible in contrast. Hadn't it been for the low pass rate of 2018, I should think the pre-EQE 2019 pass rate would be comparable to all other years so I don't think pre-EQE 2019 can be seen as an easy paper. its just that those who would have been competent enough to pass the pre-EQE 2018 paper (if it was a normal year without the confusions) didn't and therefore more competent candidates took the pre-EQE 2019 paper and pass.
ReplyDeleteThe preexam was top easy.
ReplyDelete88% comparing to 73% last year
You are forgetting that those who didn't pass last year due to time constraint, confusing claim analysis of 2018 etc... passed this year which makes this year pass mark looking higher. In fact, I think the pre-EQE 2019 can be comparable to other years.
DeleteThis years pre-EQE 2019 is how pre-EQE exams should be so well done to the committee. Credit where due.
You said that those who didn't pass last year passed this year which makes this year pass mark looking higher? But in the blog post, Roel indicated that the pass rate was almost 10%-point lower for the 2018-resitters than the overall pass rate (78,5 vs 88,4)!
DeleteThe preexam must be fair to candidates over the various years. The preexam must be consistent in terms of difficulty. Must reflect is more-or-less stable pass rate. 2015 to 2017 were 75-80%, so was consistent, fair and good. 2018 was 70% and paper way too long, not fair and not good. 2019 was 90% and paper too short because I saw many candidates leave early. 90% sounds nice, but is not, no consistency. Next year 65% or 98% or 75-80%?
DeleteI agree that consistency is a need in principle. The average of last year and this year is in the 75-80% range of the years before, so this exam was a good compensation for last year's exam!
DeleteSo, should we expect very difficult pre-exam in the next year?
DeleteHow do you think?
Congratulations for examination committee that they managed to evaluate papers in two weeks.
ReplyDeleteReally amazing performance.
Paper was not new to the committee. But the new views expressed on the blogs and views provided to the committee were - which the committee all considered seriously, as the neutralization of 19.1 and 19.2 shows. Committee deserves compliments, not cynism.
DeleteJL
If true then at least the committee is willing to consider alternative views and is not rigid in their marking scheme. This is fantastic and is how it should be. It is fair and show openness to differing views. After all, all attorneys will not provide exactly the same interpretation and advice. It is certainly not compromising the exams. Hats of to the Committee for listening and for Delta Patent Blog for enabling everyone to contribute their views constructively.
DeleteP
As it is stated that Pre-Exam questions should be TRUE or FALSE, there shouldn’t be TRUE, but….therefore for answering 3.1 questions there could be situation when the applicant desires to make amendments to the claims/description in response to the search opinion (Guidelines B-XI, 8;
ReplyDelete“There is, however, no requirement for the applicant to respond to the European or supplementary European search report where this was drawn up before 1 April 2010, where it is not accompanied by a search opinion (see B XI, 1.1 for applications for which a search opinion is prepared) or where the search opinion was positive (see B XI, 3.9). However, in these cases, the applicant may still respond to the search report according to Rule 137(2) if he so wishes. In such cases, the applicant is encouraged to respond to the search report before the application enters the examination stage (see C II, 1)”
Rule 137(2) EPC) of his own volition. Therefore there is no straightforward answer TRUE for 3.1, but could be as well FALSE.
Rule 137(2) provides the applicant with the right to do voluntary amendments to the description, claims and drawings. It is not clear that filing, for example, a broader claim set will result in a R.71(3) communication. Further, the applicant can also have an interest in amending the claims to a broader scope or adding new independent claims (which may or may not be within the searched scope) in February 2019, where the technical preparations for publication had still not ended, because such an amended claim set would be the set that is published (R.68(4) EPC).
The answer to 3.1 could equally be FALSE, because new claims or amended claims would not be an uncommon reaction. Such new and amended claims may be objectionable under Art.123(2), Art.54, Art.56 or the Examination Division may consider such claims to relate to unsearched subject-matter, resulting in the issuance of an Art.94(3) EPC communication. It is not just theoretical consideration, because R.137(2) EPC allows the applicant amendment of own volition, as the time for technical preparations has not expired, and because R.68(4) EPC explicitly refers to both new and amended claims filed under R.137(2). It is a legitimate reaction of an applicant studying the cited documents and the favourable opinion in August 2018 to prepare broader claims.
I am sorry, I donot agree: you are changing the case in my view.
DeleteNo hint in the question that voluntair amendments will be filed or are considered. No need. Relevant fact is positive search opinion. Is only fact relating to the invention, together with 11 claims. With facts given, 71(3) can be expected, so answer is T. That you can change it if you interfere does not change what you can expect based on the facts - that would in my view only be the case if the facts hint/tell you that you intend to change it, and there is no such information. Further, in real life, what would you tell your client if he says "I have a positive opinion, what can I expect next?" - I would tell my clients that "you can expect a R.71(3), but there is also a chance to voluntary amend at the risk of not getting it", in other words, I would tell my cliet the expectation based on the facts given (=EQE answer) and advise him on possible improvements and risks (not asked in this Q). Rule 22(3) IPREE is clear that only facts must be used.
By the way, the applicant may amendment of own volition not just until the time for technical preparations has not expired (which is the time limit to get it into the publication), but also before it enters examination (so, usually, in the 6m period from the publication of the search report) - R.137(2) + GL (2017) C-II, 2.1 & B-XI, 8: "However, in these
cases, the applicant may still respond to the search report according to
Rule 137(2) if he so wishes. In such cases, the applicant is encouraged to
respond to the search report before the application enters the examination
stage (see C-II, 1)".
Hi Roel and others,
ReplyDeleteFrom blogs and my own observation, I see three serious translation errors in the paper this year. Results in three inconsistencies between the three language versions. Two questions where one or two language versions did not use the term from the EPC Article or Rule whereas the other(s) did, and one question where one language version did not use the term from the Guidelines whereas the others did – which are disadvantages to those candidates and which is a substantial and clear error in view of earlier pre-exam case law:
Q.2: not using the Art.133(3) term for the “principle place of business” in the EN version (but the informal “headquarters”), and also a smaller difference in the DE version using “Hauptsitz: rather than “Sitz”.
4.1: not using the Rule 6(1) term for “shall file” in the EN and DE version (EN/FR/DE use “must file”, “doit produire”, “muss vorlegen” where Rule 6(1) uses “shall”, “doit être produite” and “ist einzureichen”)
Claim I.9 (statement 11.4) , not using the Guidelines term for “consists of” in the FR version (by not using “constituer de" from Guidelines F-IV, 4.21) but the informal "se comporse of")
The earlier pre-exam case law decided that a divergence in one language version version and one or more other-language version(s) qualify as a substantial and clear error, which requires neutralization.
I would be interested to hear your opinions.
FR
Earlier pre-exam case law includes this:
DeleteD 1/17:
2. It is undisputed and also admitted in the Examiner’s Report that there is a ‘slight difference’ of the German language version compared to the French and English version in the third sentence of paragraph [003] of document D2. While according to the English and French versions the vibrations of the loudspeaker are converted into vibrations of the air, due to the reference ‘deren’ in the German version the vibrations of the melody are converted into vibrations of the air. In the decision in case D 2/17, which concerned the same question as the present appeal and where the appellant used the German language version in the pre-examination, the Board held that the formulation ‘vibrations of the melody’ (Vibrationen der Melodie) does not have an accepted technical meaning. The Board in that case (point 2.5 of the Reasons) qualified the divergence in the English and French version and the German version respectively as a substantial and clear error (‘schwerer und eindeutiger Fehler’).
D 2/27:
2.2 Der Übersetzungsfehler hat sich jedenfalls, wie der Beschwerdeführer zu Recht ausführte, für diejenigen Bewerber nachteilig ausgewirkt, die die Vorprüfung in deutscher Sprache absolvierten. Die Aufgabenstellung war für sie schwieriger, als für einen Bewerber, der mit dem englischen oder französischen Text gearbeitet hat: …
2.3 Im Ergebnis war die Aufgabe 18.4 für einen Teil der Bewerber mit erheblich größeren Schwierigkeiten verbunden, als für die übrigen Absolventen der Vorprüfung. Die Abweichung der deutschen Sprachfassung der Aussage 18.4 wirkt sich zudem auf die Frage 20.3 aus, die hinsichtlich des Offenbarungsgehalts des Dokuments D2 ebenfalls auf den fraglichen Satz abstellt. Damit war das Verhältnis zwischen der für das Bestehen erforderlichen und der maximal zu erreichenden Punktezahl gemäß Regel 6(1) und (2) ABVEP zu Ungunsten der Absolventinnen und Absolventen der Vorprüfung in der deutschen Sprachfassung verzerrt. Mithin liegt eine Verletzung des Grundsatzes der einheitlichen und gerechten Bewertung nach Artikel 6(2)c) VEP dar (D 10/16, Punkt 4.3 der Entscheidung).
2.4 Zugleich folgt aus dem Vorstehenden, dass die Aussage 18.4 als Prüfungsaufgabe nicht hinreichend klar und verständlich gestellt war, so dass nur eine Antwort, entweder "wahr" oder "falsch", gegeben werden konnte, wie dies das Format einer Multiple-Choice-Aufgabe der Vorprüfung erfordert. Vielmehr waren Zweifel berechtigt, ob die Bewerberin oder der Bewerber sich nach Regel 22(3) ABVEP an die Vorgaben zu halten hatten oder nicht. Eine unklare oder irreführende Prüfungsaufgabe ist als offensichtlicher Fehler anzusehen (vgl. D 13/02, Punkt 4 der Entscheidungsgründe).
2.5 Die angefochtene Entscheidung beruht nach dem Gesagten auf einem schweren und eindeutigen Fehler. Die vom Beschwerdeführer gerügte Bewertung ist deshalb rechtsfehlerhaft erfolgt und der Beschwerde muss stattgegeben werden. Gemäß Artikel 24(4) VEP sind die angefochtene Entscheidung aufzuheben und die Beschwerdegebühr zu erstatten.
I would be interested to hear your opinions.
FR
Interesting, the observation to 4.1 was not yet posted by anyone I think, 2.3 and I.9 were already addressed in comments posted to our first impressions, legal and/or the claims analysis blogs.
DeleteI hesitate to answer, because my answer may have components that look like criticism on (for most people) minor and irrelant details on a very well-designed exam and also because my answer may have components of downplaying issues that were very significant for candidates that ran into the problem while they did get into trouble for a reason. Exams are never perfect, there is always candidates that go wrong because of good reasons and they should not be adversely affected in that case, whereas there is always candidates that go wrong because of bad reasons and they should preferably not benefit from arguments that they themselves never considered.
My personal opinion is that differences in wording are acceptable if the meaning is well-defined, unabiguous and the same (at least the same as far as the relevance for the outcome of the question is concerned). Where words from the law, Guidelines, or OJs (incl G decisions) are used, I think the principle should be that the authentic words from those sources should be used - that puts all candidates in the same position as an explicit confirmation of exactly the term from the question in the law/case law / Guidelines is very reassuring, whereas one may continue to doubt if one relies on possible synomyns (especially if not a native speaker). But even then, if an synonym is used that is also very well-established, I donot see it as an absolute need - in my view, the test is whether there is a unique meaning and whether it can be expected from any candidate with a least 2 years experience and supervision that a certain synonym has the same meaning. On the other hand, why would the paper deviate from the authentic language from the provision that you need to use (Art, Rule, case law, Guidelines, OJ) in one language and not in the other?
D 1/17 and D 2/17 related to a case where the meaning of the sentence really changed due to the error in translation. The same with 5.4 of 2015. I donot think you can genealize that to "any difference between the three languages must lead to a neutralization".
There is no clear information or guidance given yet as to when the Committee or Examination Board will neutralize. But I think one can observe that it has changed since the early pre-exams from "we will in principle not neutralize as it waters the exam" i.e. with a high hurdle for a candidate to be succesful, to a very fair "if there is understandable doubt / if there is an understandable chance of difference in interpretation (but in good faith), we will neutralize", i.e. with the benefit of the doubt more on the candidate than before. Real differences in meaning of a statement in the three langauages, that would lead to difference answers, are "surely" neutralized, but I think it is fair that too exotic arguments (at the judgement of the relevant authority) should not lead to neutralization, not for language differences, not for differences in interpretation, not for exotic far-fetched argument based on exceptional sitationt that the question does not describe nor hint to (even not if it is strictly speaken a valid exotic situation - e.g., in 2018, I considered the argument of technical opinions under Art. 25 to flip/neutralize the answer to 4.4 too far-fetched as the whole case was clearly about grant proceedings before the examining division (and not Art. 25, and not limitation Art.105a/R.9495), but the statement was neutralized).
(continues in nextcomment; cannot be longer than 4096 characeters)
With the 3 language differences that you refer to, I find it difficult to assess how the coins should flip.
DeleteFor 2.3, there is the additional complication that the terms "headquarters" and "principle place of business" are not synomyms, although they are close - but whether they are sufficiently different to justify a neutralization on the basis of the EN version having a different meaning, in the context of the question as it is, with the facts as they are?
W.r.t. 4.1, we had the discussion on the "must" in the statement and the "shall" in the Rule already earlier on our blog, but as far as I know that was not used in any appeal - I consider them synonyms, but I know that you can find information on the internet, also from soufrces with authority, that argue that "shall" has a less oblogatory character than "must", maybe even closer to "may". Is that a good reason to consider neutralization? (I would rather consider the "but if you donot do it, you get a R.58 and you cans till do it at no cost"-argument a stronger argument than subtleties in the meaning of must vs shall; but it was already twice on the pre-exam, so why would the answer be diffent this time?).
For I.9, my French is too poor too judge, but after several years of high-school French I would consider the wordin from the statement and that of the Guidelines synonyms (se constituer de vs se compose de). Moreover the Guidelines do not suggest that the word in there (se constituer de) would be the only possible word - it could be any other word with the same meaning. But, if a candidate, acting in good faith, got stuck because of the difference while he/she could have continued without doubt in a different language, it may be a too big factor to ignore?
For question 4.1, I think the answer may be False. Because the applicant has at least 4 months to file translation of application according to CA/PL29/06 Add.1. It may be seen at Rule 6 at below link.
ReplyDeletehttp://documents.epo.org/projects/babylon/eponet.nsf/0/AFF352E06656FAEBC1257283004304E1/$File/capl29_06add1_en.pdf
It is also included at OJ 2007, Special edition 5, page 12, hence it is not strict obligation to file translation within 2 months.
Hence, I think the question 4.1 shall be neutralized too.
Dear Gozde,
DeleteYou are not right, OJ can not overrule rules of EPC.
Please be better prepared for the next year.
Anonymous22 March 2019 at 12:52
DeleteThe related Article and/or Rule say/s that the translation shall be filed within two months from filing the application. But in case of not filing, no loss of rights communication exists.
In case of not filing the translation within two months, the EPO invites applicant to file translation within additional two months. Hence the applicant still have at least 10 days+2 months. This period may also be extended depending on date of invitation.
The sentence at question 4.1 includes must wording which different than shall. I think this refers more strict obligation to be done. There are some discussion about the difference or similarity between shall and must.
https://www.faa.gov/about/initiatives/plain_language/articles/mandatory/
Dear Anonynous, I agree OJ cannot overule rules of EPC, but OJ can explain how a rule needs to be understood and applied. Especially as the CA/PL20/06 and the OJ that Gozde refers are the preparatory document and the explanation for the change of the rule from the old form to the EPC2000 = current form. So very relevant.
DeleteQuestions in pre-exam shall be clear and unambigous. By themselves and in the context of the legal framework.
DeltaPatents as well as some people posted that question was already asked twice before. And that that would be reason that answer is unambiguous. But who said that it was correct twice before? There are no (published) decisions from Disciplinay Board of Appeal on this topic. Board could agree with candidates that appeal. Especially as question can be phrased without any unambiguity. E.g., "if no translation has been filed within 2 months after application was filed, the application is immediately deemend withdrawn", or "if no translation has been filed within 2 months after application was filed, the EPO will send a loss-of-rights communication", or if no translation has been filed within 2 months after application was filed, the applicant should request further processing". I looked on DeltaPatents blogs from earlier years: same discussion. So Pre-Exam Committee must have seen then and could and should have prevented this.
DeleteSo, good luck with filing of the appeal this year, or good luck next year on the pre-exam.
DeleteI fear difficult to win, because it was on already twice. But was on with statements in diffent words. And you have good arguments.
DeleteI do not understand why exam does not use wording from the Rule itself, in none of the three languages for this question. But even if it would have had, Rule 58 for all practical purposes relaxes the requirement of Rule 6(1). And exam is to test fit to practice, not to test literal meaning of provisions. And strange and unfair to punish candidates that know Rule 58 EPC but let candidates that only check Rule 6 score full marks.
I hope that some others will join you with the appeal and do not leave it to you alone to go this difficult route.
Good luck.
Did anyone else find the Q18 confusing due to the claim dependencies. This question stumped me for a while. The subject matter of the claims surely include the claim dependencies.
ReplyDeleteWhat is the problem?
DeleteNevermind! I think I worked out what I did wrong. Does anyone know if we can do collaborative appeals, or would be interested on working on one together?
DeleteI saw discussion on headquarters and research centre (Question 2, statement 2.3) vs principle place of business (Art.133(2)&(3)).
ReplyDeleteThere is also issue with German version: Haupsitz und Forschungszentrum (2.3) vs Sitz (Art.133(2)(3)).
Question used Hauptsitz for US headquarter. So Forschungszentrum is Nebensitz? If not, why did they add term Haupt in front of Sitz? And if Forsvchungscentrum is Nebensitz, then Pedro is entitled as employee employed in an EPC state where company has its (Neben-)Sitz.
T 314/15 relates to a similar, but different situation: a company with multiple addresses. T 314/15 indicates that only one of them is the "Sitz" / principle place of business, see reasons 1-3, esp. 3 (andthe facts).
DeleteIn the decision, the Sitz and the address used for correspondence of the one and the same company are both in EPC states and the authorized employee is an employee of one and the same company.
Facts and submissions
II. Opponent 3 was MAN Truck & Bus AG, Dachauer Str. 667, 80995 München.
III. Following the interlocutory decision, a notice of appeal by facsimile was received at the EPO on 9 February 2015, carrying at the top of its first page the letterhead "MAN Truck & Bus AG", and below the addressee a line containing various references including inter alia an indication that the letter was written on that same date in Nürnberg, followed by a paragraph designating the number of the above European patent and its underlying application, the name of the patent proprietor and the name of the opponent as "MAN Truck & Bus AG". In the subsequent paragraphs it is declared, with reference to the impugned interlocutory decision, the European patent and its proprietor, that an appeal was filed. A list of requests and a statement concerning the payment of the appeal fee by debit order submitted in the annex completed the letter which was signed by an employee of MAN Truck & Bus AG together with a reference to an EP authorisation 58 1060.1. The letter's footer contains in a left column an indication of inter alia the place of business being München and in a right hand column, a postal address of the company MAN Truck & Bus AG in Nürnberg.
A corresponding statement of grounds of appeal was received at the EPO on 28 March 2015.
IV. A communication pursuant to Rule 101(2) EPC, dated 16 July 2015, was sent to MAN Truck & Bus AG at its postal address in Nürnberg, stating that the notice of appeal did not contain the address of the appellant and requesting the deficiency be remedied within a period of two months.
V. By letter received at the EPO on 31 July 2015, the address of appellant-opponent 3 was provided, corresponding to the address indicated by opponent 3 in the notice of opposition [i.e., the Munchen address]. It was requested that all correspondence be sent to the Nürnberg postal address.
[continued in next comment]
Reasons (T 314/15)
DeleteAdmissibility of the appeal of appellant-opponent 3
1. Pursuant to Rule 99(1)(a) EPC, the notice of appeal shall contain inter alia the name and the address of the appellant as provided in Rule 41, paragraph 2(c).
Rule 101(2) EPC further specifies that in case the Board of Appeal notes that the appeal does not comply with Rule 99(1)(a) EPC, it shall communicate this to the appellant and shall invite him to remedy the deficiencies within a period to be specified. If the deficiencies are not remedied in due time the Board of Appeal shall reject the appeal as inadmissible.
2. The notice of appeal of appellant-opponent 3 did not contain the address, contrary to the requirement of Rule 99(1)(a) EPC. This deficiency has however been remedied according to the procedure prescribed in Rule 101(2) EPC. The response to the Board's notification concerning the missing address of appellant-opponent 3 was received two weeks after the dispatch of the notification, so within the two-month period set by the Board and therefore in due time. The indicated address is indeed the same as the address of opponent 3, so that there is no doubt as to the party status of appellant-opponent 3 in the present appeal proceedings (Article 107 EPC).
3. The Board has no doubt about the "true intention" to file the appeal on behalf of opponent 3. The indications in the notice of appeal leave already little room for speculation in this regard. Besides the data identifying the impugned decision, the patent in suit, the names of the patent proprietor and that of opponent 3, the business place of the company can also be found in that letter ("Sitz der Gesellschaft: München"). The letterhead, with which the notice of opposition was filed is the same as for the notice of appeal. Despite the missing address for the business place in Munich and the indication of an address in Nürnberg, which might at first sight have triggered the assumption that two different legal persons could be involved, the response of appellant-opponent 3 to the Board's notification pursuant to Rule 101(2) EPC removed any such doubt, completing the missing address of the business place and further confirming that the other address in Nürnberg is also, just as in the preceding opposition procedure, to be used for any correspondence in the appeal procedure. Finally, the doubts raised by the appellant-proprietor in regard to the possible existence of a second legal person, with the same name, were not supported by any evidence.
4. The Board is satisfied that all other requirements for the admissibility of the appeal of appellant-opponent 3 have been met. The appellant-proprietor also did not raise any further objections in this regard.
The appeal of appellant-opponent 3 is thus admissible.
See https://www.epo.org/law-practice/case-law-appeals/recent/t150314eu1.html
Any news on any appeals?
ReplyDeleteAny filed? Directed to which statements?
Any succesfull after review bij Examination Board? Which statements?
Any already succesfull at Disciplinary Board? Which statements?
I filed an appeal to statement 2.3 and 4.1. The Examination Board decided that the appeal is inadmissible and forwarded it to the Disciplinary Board of Appeal. I haven't received any notification yet and the EPO said that it may take up to 1 year.
ReplyDeleteAny news on appeal 2.3/4.1? Main exam is soon.
Deleteunfortunately, not yet
DeleteW.r.t statement 4.1, please refer to our blog post of FRIDAY, 10 JULY 2020
Delete"D 3/19 - The term "must" in statement 4.1 of Pre-Exam 2019 leads to ambiguity":
https://pre-exam.blogspot.com/2020/07/d-319-term-must-in-statement-41-of-pre.html