Pre-Exam 2021 - Results available in myEQE - Examiner's Report also available
Some candidates informed me that the individual Pre-Exam results are available in MyEQE now (31/3/2021, 15h)
The Examiner's Report is not yet available, nor is a full list of marks which would allow to determine the pass rate.Congratulations to all that passed!
[Update 2 April 2021, 9:30:]
- All our answers to Q.1-Q.9 in the legal part correspond to the answers in the Examiner's Report.
- Question 10 in the legal part (PCT-B, Applicant B/A mix-up) was completely neutralized.
- All our answers in the claims analysis part correspond to the answers in the Examiner's Report, possibly except 12.3 of our version (12.4 in the Examiner's Report): for that it is unclear whether the answer is FALSE or whether it is neutralized as no explicit answer is given, the argumentation suggests FALSE, but the argumentation also provides "the term is not necessarily unclear" suggesting a neutralization as it does explicitly indicates that the statement cannot unambiguously be answered as FALSE nor as TRUE..
- No further statements were neutralized in the legal part nor in the claims analysis part.
[Update 7 April 2021, 8:30:]
- The Examiner's Report on the Compendium pages has been updated: the answer given in the updated version of the Examiner's Report to 12.4 is FALSE.
Please feel invited to comment!
SHARE:
Whoohoo I passed. Not sure if there is any real point in having a pre-EQE but glad I've passed. Now the daunting EQEs next year. I've heard some horrendous stories about the EQEs 2021 especially for papers A, B and C.
ReplyDeleteIf you believe there is no real point, you should not have passed!
DeleteWill be interesting to see which questions have been "neutralized". My marks are higher than they were when comparing my answers to DP model answers, so I think that for a couple of questions both true or false were considered correct.
ReplyDeleteA big thank you to the Deltapatents team for your good work through this blog!
Hello, my mark is the same as calculated from the DP solutions!
ReplyDeleteMy mark is two point less, interesting! Maybe the neutralization didn't affect me...
ReplyDeleteLess compared to our "expected answer", or did you consider all statements where we indicated "True/False may also be argued" as neutralized?
DeleteIt will be interesting to see whether some of these (and/or other) statements were neutralized, and where the official answer is different from ours. Hope that the Examiner's Report will come soon!
My mark is as Tesla's, two points less than calculated from the DP solutions. Do you know how long we have to file an appeal? Thank you.
ReplyDeleteArticle 24 REE: 1 month (different from Art.108 EPC!)
DeleteThe Examination Board will first look at it to see whether to grant interlocutory revision or not. if not, they will send it to the Disciplinary Board of Appeal. The decision on your appeal may thus come fast, but it may also take 2 years and not be decided before the next EQE. So request a speedy handling by the Examination Board and, if send to the Disciplinary Board, also by the Disciplinary Board.
If your arguments would not be different from what is presented on the blogs, you may not have a high chance of success, as it is well-known that the Committees and the Examination Board read the blogs and consider them together with anything else that came to their attention (e.g., via emails to the EQE secretariat - see "Notice from the Examination Secretariat concerning the conduct of the EQE 2021" on the EQE website) when deciding on the correct and alternative answers. But it is also not excluded (see e.g, D 3/19). I can imagine that some statements may be considered sufficiently clear to not result in a general neutralization, whereas an individual neutralization may be done (e.g., if the order in which you got the questions or in particular statements within a question caused/increased an unclarity, whereas the presentation in any other order would not really have an unclarity).
It is not know how many Pre-Exam appeal are filed every year, nor how many are successful via interlocutory revision. Only a few go the Disciplinary Board and also lead to a decision (if you withdraw while it is there, e.g., as it appears hopeless and you want to get part of your appeal fee back, it never gets decided). Only few decisions by the DBA are successful, probably largely because of the limited scope of competence of the Disciplinary Board (See Art.24 REE and see case law, e.g., D 3/14, reasons 5 and 11-14).
Note that your PASS/FAIL-decision has been issued so can in principle only be changed when you appeal and when the appeal is successful. Also note that each PASS/FAIL decision is an individual decision, so if someone else appeals on the same topic and you do not, that in principle does not change your result (even though the Examination Board did sometimes [e.g., D 3/14] -but not always [e.g., D 3/19]!!!- apply a successful appeal to all those candidates where the FAIL would become a PASS if they would have appealed on the same issue, despite the lack of legal basis to do so).
My mark is exactly the same as that calculated on the basis of the DP's mark scheme. It seems that the statement regarding the formulation of the OTP in the 1st part of the claim analysis section (which was discussed on this blog as a possible candidate for neutralization) was ultimately not neutralized (i.e. the answer as proposed by DP is correct, to my bemusement).
ReplyDeletemy mark was 90, so 2 point more than DP
ReplyDeleteThat would imply that we have one different from the official answer. Curious to see which and why in the Examiner's Report!
DeleteLooks like it was the clarity of the term "low" :)
DeleteYeah, so I got 4 extra points from question 10, but lost two from the low question, compared to DP solution
Delete^This is exactly what happened in my case!
Delete"but lost two from the low question": what answer did you than consider that the Examiner's Report gives? (see also below)
Delete@ms: I also not spot any differences between our answers (legal and claims analysis parts) and the Examiner's Report (except for the order and except that the low-statement is left unanswered in the latter). Did I overlook something?
DeleteI also lost 2 points from the low questions which I answered TRUE but I think they counted as FALSE. I got 2 points from the question 10 and at the end same points calculated based on DP answers
DeleteI read the "low" question as false... (meaning I lost two point (one question) there). I answered true..
DeleteI got two question wrong in question 10, so lost orginal 4 point there, but the whole question is neutralised so got 4 points extra there
@Roel van Woudenberg so I do not think you overlooked anything
So got overall 2 point more than DP
See below for a further discussion on the "low"-statement.
Deletemy mark was waaaaay less than what was calculated here. 5-6 points less. Passed anyways but it was somehow a shock.
ReplyDeleteDid you rely on all statements where we indicated "True/false may also be argued" to be neutralized? Than I can imagine that such a difference can occur if they did not neutralize all of those, and if we maybe also have 1 wrong.
DeleteIf you relied on our "expected" answers (single answer per statement), then can I suggest that you recheck your answers? We may have 1 or 2 statements wrong, but more is very unlikely. I would consider it more likely that the randomized order of the questions and statements would suggest differences that that we would have so many less.
Note that you get 0 marks for a question as a whole if you did not answer one of the four statements (see "Pre-examination - new instructions and new marking scheme" on the EQE website).
My mark is also 2 points less when compared to the solution of delta patents. However, still by far enough points :)
DeleteIt seems that the solutions of DP and of the examinar report are exactly the same. Strange that I got two points less than I should have received. Maybe question 12.4 was left out somehow as there is no indication of true or false? What could be the reason for this?
DeleteIndeed, I also could not spot any differences between our answers (legal and claims analysis parts) and the Examiner's Report, except for the order of the questions (legal) and statements within each question (legal and claims), BUT assuming that 12.4 in the Examiner's Report (12.3 in our version) is neutralized (as no answer is given).
DeleteThe arguments given do however hint to the intended answer being FALSE:
"The term “low” in feature (vi) in claim I-8 is clearly distinguished from the term “high” in feature (ii) of claim I-8. Furthermore, the description of the application defines the term “high” in paragraph [009]. Accordingly, in the context of the whole disclosure of the application, the term “low” is considered to be clear."
seems to indicate that the term is clear as it distiguishes from "high" and is thus not a relative term without a reference.
"In any case, if a relative term is not the only feature to distinguish the subject- matter of a claim from the prior art, the use of the relative term may not be objected to under Article 84 EPC. The word “low” is not the only feature to distinguish the claim from the prior art, as none of the prior art discloses the claimed process. Although broad, the term is not necessarily unclear [GL 2019 F-IV 4.6.1]."
seems to indicate that the term may be unclear as such (or not), but that in any case the claim as a whole can already be distinguished from the prior art, so that a possible unclarity of this single term is not relevant. But one may challenge whether this is logically correct: does "an unclear term cannot be used to distinguish a claim from the prior art" imply that "if a claim can be distinguished from the prior art (even if some terms therein are as such not clear), the claim is clear"? ...
Examiner's report is out!
ReplyDeletehttp://documents.epo.org/projects/babylon/eponot.nsf/0/2A535758E13A497BC12586AA0034B56F/$FILE/ExRep_PreEx2021.pdf
DeleteHi everybody,
ReplyDeleteConfused about Question 12.4 "Claim I-8 is unclear due to the use of the term "low"",
Examiner's report doesn't state the answer to the question, but taking into account the comment of Examination Board, I assume the answer is FALSE.
Nevertheless, No hint in the description about the term "low" and in my opinion defining "high" does not mean defining "low" (low is not neccesarily "not high").
Additionally,
Additionally, according to GL 2019 F-IV 4.6.1 "Relative or similar terms such as "thin", "wide" or "strong" constitute a potentially unclear element due to the fact that their meaning may change depending on the context. For these terms to be allowed, their meaning must be clear in the context of the whole disclosure of the application or patent.[...]
Delete[...]
Where the relative term has no well-recognised meaning the division invites the applicant to replace it, if possible, by a more precise wording found elsewhere in the disclosure as originally filed.
"
From GL 2019 F-IV 4.6.1, I understand that the use of the term "low" maybe be not un objection under Art 84, but anyway is not considered to be clear.
DeleteWhat do you think about?
I interpret the lack of an indication TRUE or FALSE in the Examiner's Report as a neutralization.
DeleteBut the arguments given all support TRUE (i.e., that Claim I-8 IS unclear due to the use of the term low.), so maybe it meant to indicate TRUE...
True or False: The Examiner's Report is unclear due to the lack of an explicit indication as to how the statement was evaluated (TRUE. FALSE, or NEUTRALIZED).
I've checked my answers against the examiner's report, and it looks to me like they took the answer as FALSE (I answered TRUE, and an incorrect answer on that question tallies with my overall mark). The examiner's report states "Accordingly, in the context of the whole disclosure of the application, the term “low” is considered to be clear" and "Although broad, the term is not necessarily unclear [GL 2019 F-IV 4.6.1]", which I interpret as meaning that the examiners consider the claim is clear (i.e. that the answer is FALSE).
DeleteGL 2019 F-IV 4.6.1,
Delete"Relative or similar terms such as "thin", "wide" or "strong" constitute a potentially unclear element due to the fact that their meaning may change depending on the context. For these terms to be allowed, their meaning must be clear in the context of the whole disclosure of the application or patent.
However, if a relative or similar term is used by the applicant as the only feature to distinguish the subject-matter of a claim from the prior art, the use of this term is objected to under Art. 84 unless the term has a well-recognised meaning in the particular art, e.g. "high-frequency" in relation to an amplifier, and this is the meaning intended.
Where the relative term has no well-recognised meaning the division invites the applicant to replace it, if possible, by a more precise wording found elsewhere in the disclosure as originally filed. Where there is no basis in the disclosure for a clear definition and the term is no longer the only distinguishing feature, it may be retained in the claim, because excising it would generally lead to an extension of the subject-matter beyond the content of the application as filed - in contravention of Art. 123(2)."
So, according to paragraph 1 "For these terms to be allowed, their meaning must be clear in the context of the whole disclosure of the application or patent", and the meaning of the "low" is not clearly defined in the application (paragraph [015]), as the term is used in "allowing the photochromic lens to cool to a low temperature". Such sentence "could" have been considered to be clear if had stated as "allowing the photochromic lens to cool to a lower temperature", considering temperatures for the comparison under the temperatures in paragraph [016] (Preferably, the silicon dioxide is heated to about 1500 °C, about 1600 °C, about 1700 °C or about 1800 °C. Most preferably, the silicon dioxide is heated to 1675 °C.)
Anyway, paragraph 3 in GL 2019 F-IV 4.6.1 indicated that the term "low" could be maitained in the claim if no alternative exist and the removal of this term could contravene art 123(2), but anyway the claim would be unclear.
The question formulated is if "Claim I-8 is unclear due to the use of the term "low"", and not if "Claim I-8 must be ammended according to Art 84". So, I consider that the answer should be TRUE or NEUTRALIZED
The Examiner's report is now available.
ReplyDelete(see https://www.epo.org/learning/eqe/compendium/preexamination.html)
LEGAL PART
(see also https://pre-exam.blogspot.com/2021/03/pre-exam-2021-legal-part-our-answers.html)
In the legal part, Q.10 (in our numbering and in the numbering in the Examiner's report) was completely neutralized. The Examiner's report provides:
"Question 10 mistakenly refers to applicant B and applicant A while it was intended to refer to only one applicant B different from applicant A of question 4. To avoid any disadvantage due to this mistake, it has been decided that for this question 10 all answers are awarded the full marks of 5 points."
No other statements were neutralized in the legal part.
Our answers to Q.1-Q.9 correspond to that of the Examiner's report.
Note that in the Examiner's Report, Q.7 and 8 are swapped compared to our version.
Also, the statements are generally in a different order.
Note that ion Q.1, our version had the somewhat strange order "4th yr - 3rd yr - 5th yr - div" whereas the Examiner's report had the natural order "3rd yr - 4th yr - 5th yr - div" - which probably has less risk of going wrong. Some candidates m,ay have had an even more awkward order, e.g., "5th - 3rd - div - 4th" which seems significantly more easily prone to errors.
CLAIMS ANALYSIS PART
(see also https://pre-exam.blogspot.com/2021/03/pre-exam-2021-claims-analysis-part-our.html)
In the claims analysis part (in our numbering), only statement 12.3 (ExRep 12.4) “low”) was neutralized.
Our answers to all statements in Q.11-Q.20 correspond to that of the Examiner's report.
W.r.t. the neutralized statement 12.3 (ExRep 12.4) “low”), the Examiner's Report indicates:
"The term “low” in feature (vi) in claim I-8 is clearly distinguished from the term “high” in feature (ii) of claim I-8. Furthermore, the description of the application defines the term “high” in paragraph [009]. Accordingly, in the context of the whole disclosure of the application, the term “low” is considered to be clear.
In any case, if a relative term is not the only feature to distinguish the subject- matter of a claim from the prior art, the use of the relative term may not be objected to under Article 84 EPC. The word “low” is not the only feature to distinguish the claim from the prior art, as none of the prior art discloses the claimed process. Although broad, the term is not necessarily unclear [GL 2019 F-IV 4.6.1]."
Statements 15.3 and 15.4 (Ex.Rep 15.1 and 15.3) were not neutralized; our answers correspond to the official answer. The Examiner’s Report does not comment on a possible difference between “(a glass composition for use as) a photochromic lens” and “a glass composition suitable for making a photochromic lens”, i.e., to the difference between a product/device (lens) and a composition/chemical stuff, - see the discussion on the blog on how that changes the answer.
Statement 18.2 (Ex.Rep 18.1) as not neutralized. The examiner’s report does not explicitly address the “parallel” aspect nor that the figure shows a triangle made of 4 sections rather than 3. The Examiner’s report just provides “In D2, the cover part is described as divided into three foldable parts forming a triangular prism, as clearly shown in Fig. 3 of D2. Thus, the subject- matter of claim IV.7 is not novel over D2.”
Note that in Q.11, our version had the somewhat strange order "claim I-1 – I-8 – I-9 (ref I.8) – I-4" whereas the Examiner's report had the natural order "I-1 – I-4 – I-8 – I-9 (ref I.8)" - which probably has less risk of going wrong. Some candidates may have had an even more awkward order, e.g. “I-9 (ref I-8) – I-4 – I-1 – I-8” which seems significantly more easily prone to errors.
Hi Roel,
DeleteI assume Question 12.4 in ExRep is considered to be FALSE, as if neutralized, after analyzing the whole ExRep I would got 71 marks and now I got 69...
Hi Daniel,
Deletesee above at "Roel van Woudenberg 1 April 2021 at 14:29" in the thread started by AI.
I assumed neutralization as no TRUE or FALSE answer is given in the Examiner's Report.
But yes, I agree that the arguments given read more towards FALSE than towards TRUE, and that we may have missed this statement.
In real life, I would however challenge those arguments if used by the Examiner, arguing that:
- is it really "clearly distinguished" in the claim? Why?
- does "an unclear term cannot be used to distinguish a claim from the prior art" imply that "if a claim can be distinguished from the prior art (even if some terms therein are as such not clear), the claim is clear"?
- "not necessarily unclear" is not an unambiguous clear or unambiguous unclear, which is required for a Pre-Exam statement (see e.g., D 3/19).
I disagree with the Examiner’s report regarding statement 12.4.
DeleteThe statement that “if a relative term is not the only feature to distinguish the subject- matter of a claim from the prior art, the use of the relative term may not be objected to under
Article 84 EPC” seems to be an inverse error ('denying the antecedent', see Wikipedia), because the actual text of the GL only states that if it is the only distinguishing feature, then it must be objected to under Art. 84.
In particular, F-IV 4.6.1 strongly suggests that if it is not the only distinguishing feature, it is still required that “their meaning must be clear in the context of the whole disclosure of the application or patent”, so it is not true that it categorically ‘may not be objected to’.
And whether the meaning of ‘low’ and ‘high’ is clear in the context of the application, I believe this has been discussed extensively in our blog: in particular, ‘low’ seems (very) unclear ('how low is low'?)
As no answer is given to statement 12.4, I took it as being neutralized.
DeleteThe Examiner's Report also admits that it cannot be answered unambiguously and consequently requires neutralization: "the term is not necessarily unclear" only supports "not necessarily TRUE".
Do you think it was not?
Not neutralised based on my marks.
DeleteLikewise, my marks only add up if the answer is FALSE
DeleteSame here, based on my marks this statement was considered to be FALSE
DeleteHow can "to cool to a low temperature" be clear if there is no indication of the temperature?
Delete"to cool" already implies that the temperature is reduced.
So "to cool to a low temperature" MUST provide an additional limitation due to the addition "to a low temperature". Not just any cooling, but a special type of cooling.
So the term low makes the claim unclear.
And it not unclear, than it will lack conciseness, which is also a clarify aspect in the broader sense.
By the way, is it not already sufficient proof that the claim is clear that we can debate so long about it?
K.
15.1 and 15.3 asks to assess an badly phrased claim:
Delete"a glass composition for use as a photochromic lens".
That technically does not make sense!
K.
What about: "an alloy composition (suitable) for use as an air plane"?
Correct phrasing:
A) "an alloy composition (suitable) for making an air plane", or
B) "an air plane made from an alloy composition".
For A), closest prior art must be in the field of be alloy compositions suitable for making an air plane, but known e.g. for making cars.
For B), closest prior art must be in the field of airplanes.
I saw the discussion on the claims analysis blog which addresses the above in detail. I expected a neutralization.
19.4 Examiner's Report:
DeleteTRUE - This amendment is based on the combination of IV.1, IV.7 and [005] of the
description of the application. The invention is defined in paragraph [003] of the
description of the application to have the receiving part being a flat base and having four
elastically deformable corners. Thus, this receiving part applies to all embodiments of the
invention. Therefore, it is not necessary to include the flat base and the four elastically
deformable corners in the claim. Thus, this amendment complies with Article 123(2) EPC.
The argument is not correct:
If "a receiving part being a flat base and having four elastically deformable corners" applies to all embodiments of the invention, then taking the receving part from [005] requires to take it in the way it is disclosed as applying to all embodiments of the invention!
Therefore, it is necessary to include the flat base and the four elastically deformable corners in the claim, contrary to what the Examiners Report says.
So the statement is FALSE, not TRUE.
K.
I believe those are great arguments to appeal.
DeleteC.
Hi Nico, I agree with your comment:
Delete"F-IV 4.6.1 strongly suggests that if it is not the only distinguishing feature, it is still required that “their meaning must be clear in the context of the whole disclosure of the application or patent”, so it is not true that it categorically ‘may not be objected to’."
Statement 12.4 is thus TRUE, not FALSE: Claim I-8 ISunclear due to the use of the term low.
Statement 12.4 could best be NEUTRALIZED.
K.
I also concur with Nico. Is anyone going to appeal it? Is there even a likelihood of success?
DeleteThe DP answers provided for 12.4 and 14.4 do not align with the answers provided by the examiners. Additionally, as DP argued that 18.1 could be true or false, it would have been fair to neutralise the answer.
In my view, the way the Committee interprets F-IV 4.6.1 is not correct, as the interpretation they give is conflict with the main principle in F-IV, 4.1.
DeleteF-V, 4.1:
Therefore, the meaning of the terms of a claim must, as far as possible, be clear for the person skilled in the art from the wording of the claim alone (see also F‑IV, 4.2)
F-V, 4.2:
Moreover, if such a special meaning applies, the division will, so far as possible, require the claim to be amended whereby the meaning is clear from the wording of the claim alone.
F-IV 4.6.1 :
Relative or similar terms such as "thin", "wide" or "strong" constitute a potentially unclear element due to the fact that their meaning may change depending on the context. For these terms to be allowed, their meaning must be clear in the CONTEXT OF THE WHOLE DISCLOSURE of the application or patent.
So:
F-IV, 4.1 and 4.2 clarify that the meaning must be clear from the CLAIMS ALONE.
F-IV, 4.6.1 does NOT indicate that the meaning can be interpreted from the description to render the claim (F-IV, 4.2 explicit says that that cannot be done - it needed, then it must be amended into the claim), it only specifies that the CONTEXT must be taken into account.
So, the case at hand does not allow the description to be used to interpret what 'low' means (not what 'high' means).
F-IV, 4.6.1 rather reads on situation where the same technical term is used in multiple contexts/technical fields, and where in each of those contexts it is well-understood and well-defined for the skilled person based on the claim wording alone.
I often use the word "bed" as an example.
The word "bed" is used in various contexts.
The most common used is a bed to sleep in.
But it could also be a flower bed = bed for growing flowers.
What F-IV, 4.6.1 means to indicate in my view is that there cannot be any objection to the word bed if the application as a whole clearly shows that the context is either beds for sleeping or beds for growing flowers. And that there is no need to incorporate explicitly in the claim whether it is a bed for sleeping or a bed for growing flowers. The skilled person will have no clarity problems at all, and it is the context that helps to identify who the skilled person is (i.e., in which field).
Similar for engine (engine for designed to convert one form of energy into mechanical energy acc wiki; engine in CII as the core software necessary for a program to properly run, such as a game engine acc wiki), library (physical space with books; set of software modules; library for genetic engineering), ...
Also see Case Law Boo II.A.3.1:
"Claims lack clarity if the exact distinctions which delimit the scope of protection cannot be learnt from them (T 165/84, T 6/01). The claims per se must be free of contradiction (see T 2/80, OJ 1981, 431). They must be clear in themselves when read by the person skilled in the art, without any reference to the content of the description (T 2/80; T 1129/97, OJ 2001, 273; T 2006/09; T 1253/11; T 355/14). The Enlarged Board held in G 1/04 (OJ 2006, 334) that the meaning of the essential features should be clear for the person skilled in the art from the wording of the claim alone (see also T 342/03, T 2091/11, T 630/14, T 1140/14, T 1957/14)."
And Case Law Book II.A.6.3.5:
Delete"In T 1129/97 (OJ 2001, 273), the board held that the mere fact that the precise meaning of an unclear term ("low alkyl") was expressly disclosed in the description but not in the claims did not mean that the latter met the clarity requirement. The clarity stipulation under Art. 84 EPC 1973 concerned ONLY THE CALIMS, and therefore – according to the ESTABLISHED CASE LAW of the EPO boards of appeal – required that they be CLEAR IN THEMSELVES, WITHOUT THERE BEING ANY NEED FOR THE SKILLED PERSON TO REFER TO THE DESCRIPTION. True, under Art. 69(1) EPC 1973 the description was to be used to interpret the claims. But Art. 69 EPC 1973 concerned only the extent of protection where this was at issue, e.g. with third parties, and not (as in Art. 84 EPC 1973) the definition of the matter to be protected by a claim. Confirmed in T 56/04, T 64/03, T 1265/13.
In T 49/99 the board held that since clarity was a claim requirement, A CLARITY DEFICIENCY IN THE CLAIM WORDING WAS NOT RECTIFIED BY THE FACT THAT THE DESCRIPTION AND THE DRAWINGS WOULD HELP the reader to understand the technical subject-matter that the claim was intended to define. See also T 623/13."
The Examiner's Report on the Compendium pages has been updated:
DeleteThe answer given in the updated version of the Examiner's Report to 12.4 (12.3 in our version) is FALSE.
The reasoning has remained unchanged.
Dear Roel:
DeleteI feel very upset with the Examiner´s Report since I my mark is 68 and I answered TRUE to 12.4 (12.3 in our version). How I can make an appeal? Must I send it to helpesk@eqe.org? Is there any chance of success?
Thank you in advance
Refer to Art.24 REE and, if unclear, call the EQE secretariat if things are unclear. Most importantly: only 1 month, not 2, to file the appeal and pay the appeal fee!!
DeleteI consider it likely that more people will appeal on 12.4 (the low-statement; 12/3 in our version).
Note that only Q.10 was neutralized and no other statements, despite quite some discussion on our blogs to some.
I consider to appeal 12.4 and 18.1. 12.4 certainly needs neutralization in view of all convincing arguments on this blog. 18.1 also if the committee is fair, but that got less discussion, I do not understand why.
DeleteDoes anyone know if I can send an email to the pre-exam committee so that they can neutralize quickly, and so that no appeal is needed?
Do more intend to appeal based on 12.4, 18.1 or other statements?
We only have little time.
I think it is really unfair the appeal fee, many people can´t afford 1200€ to make an appeal (not to mention being the guinea pigs in the e-eqe). In addition, question 12.4 is wrong in the Examiners' report (many people in the forum and professional representatives think that there should be a correction by the EPO). Why a correction is not possible? Why does it cost so much to rectify mistakes?
DeleteIf your appeal is successful, or if you timely withdraw your appeal (for example, if interlocutory revision is not granted by the Examination Board and the appeal is remitted to the Disciplinary Board), you get your appeal fee reimbursed, in part or in full. Almost certainly in full if withdrawn immediately after remittal. Possibly also in full if withdrawn after preliminary opinion, as long as no oral proceedings are held.
DeleteArticle 24 REE:
(3) If the Examination Board or the Secretariat considers the appeal to be admissible and well-founded, it shall rectify its decision and order reimbursement of the fee for appeal.
(4) ... If the Board of Appeal allows the appeal, or the appeal is withdrawn, it shall order reimbursement in full or in part of the fee for appeal if this is equitable in the circumstances of the case.
Is it documented somewhere when the Board of Appeal will order reimbursement in full, so that I can be sure until what moment I can withdrawn with full reimbursement.
DeleteMr/mrs Anynonmous above: because you are so certain that 12.4 is wrong, you appeal should not cost you 1200€ because you will get it reimbursed after your appeal is successful. Or do you doubt that the Examination Board or Board of Appeal will not agree? I passed, but if I would have scored 69, I would appeal!
DeleteAppeal should be successful not only if the answer in the examiner's report to statement 12.4 (FALSE) is wrong, but also if it is not unambiguously FALSE: the Board of Appeal indicated in various Pre-Exam appeals that a True/False-statement must be unambiguous and clear, and needs to be neutralized if it is not.
DeleteK.
D 6/16, point 19 of the Reasons:
Delete19. The Disciplinary Board takes the present appeal as an opportunity to address some general remarks to the Examination Board. The substance of this appeal makes it clear that in a multiple-choice examination such as the EQE pre-examination it is essential to ensure that the questions to be answered and the statements to be evaluated are formulated clearly and unambiguously. In particular, this means avoiding terms and formulations which at the outset induce candidates to adopt an interpretation which ultimately to some extent leads them away from the answer and technical and/or legal assessment actually sought by the test setters and causes them to arrive at conclusions which are not in keeping with the object and purpose of the pre-examination. Given that pre-examination candidates cannot give any reasons for a "True" or "False" answer, and that no acceptable alternative solution to a question can be considered, it is crucial to formulate statements in such a way that clearly only one "True" or "False" answer is possible and "correct" in the circumstances. The Examination Board is requested to give due consideration to these remarks in setting future examination papers.
K.
D 3/19, point 2 of the Reasons:
Delete2. The appellant argued that statement 4.1 was not formulated clearly and comprehensibly and could therefore not be unambiguously answered with "yes" or "no".
2.1 The Appeal Board agrees with the appellant that the term "must" in the first statement leads to ambiguity. It is not clear whether or not this term implies that the direct consequence of failure to observe the time limit is a loss of rights that can be remedied under Article 121 or 122 EPConly.
2.2 Although the requirement under Rule 6(1) EPC to file a translation of a European patent application into one of the official languages within two months of filing said application is undoubtedly a legal obligation ("shall be filed"), non-observance of this time limit does not lead to a loss of rights (nor to a deferral of the filing date); the Receiving Section sets a second two-month time limit (see Article 90(3) and Rules 57(a) and 58 EPC). As a consequence, the question of whether or not statement 4.1 is correct cannot be answered with either "true" or "false" as required by a "multiple-choice"question in the pre-examination.
2.3 An unclear and confusing examination question constitutes a serious and obvious mistake (D 13/02, point 4). The appeal is consequently well founded and allowable. The further objection concerning statement 2.3 need not be dealt with in this decision. According to Article 24(3) REE, the contested decision has to be set aside and the appeal fee reimbursed.
K.
D 1/17, points 5 and 6 of the Reasons:
Delete5. Hence, the Board considers that for an examination question statement 18.4 has not been formulated in a sufficiently clear, comprehensible and unambiguous manner to ensure that the answer could be only "true" or "false" what is required by a "multiple-choice" question of the pre-examination. An unclear and confusing examination question constitutes an obvious mistake (D 13/02, point 4 of the Reasons).
6. Therefore, the contested decision is based on an obvious mistake which has been established without reopening the entire marking procedure. The appeal is thus allowable. According to Article 24(4) REE the contested decision has to be set aside. In the circumstances of the case the Board also deems equitable (Article 24(4) REE) and orders that the appeal fee be reimbursed.
K.
I believe that they wrongly consider 12.4 to be false and 19.4 to be true.
ReplyDeleteIs an appeal worth it in these cases?
CM
I checked my crystal ball: it first said yes, but when checking it again it said no.
DeleteWhy question 19.4 can not be chalenged ? It seems that the discussion about intermediate generalisation is still open.
DeleteT.
Who said it can not?
DeleteI agree it can be challenged. The answer in the Examiner’s Report ad such, as well as the reasoning.
Examiner's Report:
ReplyDeleteD1 further implicitly discloses a hinge
between the receiving part and the flap, since the flaps of the shipping box can be
folded over.
D1:
The
shipping box comprises four flaps extending respectively from each of the four walls. The
shipping box comprises four flaps extending respectively from each of the four walls. The
flaps can be folded over
But why are flaps that can be folded over hinges?
K.
Because the description of the client's application states that hinges can be folded flaps (this was discussed at length in the Claims Analysis blog)
DeleteO, I overlooked that. Thanks!
DeleteK.
18.1 gives:
ReplyDeleteFALSE - In D2, the cover part is described as divided into three foldable parts forming a triangular prism, as clearly shown in Fig. 3 of D2. Thus, the subject- matter of claim IV.7 is not novel over D2.
That is incorrect:
In D2, the cover part is divided into FOUR foldable parts forming a triangular prism, as clearly shown in Fig. 3 of D2!!!
Claim IV.7 specifies that the cover part is divided into three parallel sections that are respectively joined by parallel hinges, and which are foldable into a triangular prism shape.
Claim IV.7 is of the "consists of"-type, not of the "comprising"-type!
Thus, the subject- matter of claim IV.7 IS NOVEL over D2 because the claim specifies consisting of 3 parts whereas D2 specifies consisting of 4 parts.
Statement 18.1 is TRUE, not FALSE.
I agree also. I think the answer should be neutralised.
DeleteI agree that the Figure in D2 show that the cover part is divided into FOUR foldable parts. The description of the Figure however says THREE. That is a complication that was (I think) not intended, but it is there...
DeleteSee the claims analysis blog for discussions on this.
Our False answer is based in what we expect as what should be the answer.
There is however nothing wrong with the True reasoning that we show as "True can also be argued" on the claims analysis blog - which derives from dealing with the obvious error in D2 using GL G-IV, 9 (errors in prior art documents).
If the difference between the description in D2 and the Fig of D2 would be considered an error in the paper, that would be a good argument for neutralization.
If the difference between the description in D2 and the Fig of D2 is intentional, then GL G-IV, 9 should be used; in that case, the claim would be new, contrary to the current answer in the Examiner's Report - a good argument for neutralization.
Despite these arguments, the statement was unfortunately not neutralized.
Also, the Examiner's Report did not comment on the 4-part aspect, nor on the inconsistency between the description and the Fig in D2.
Dear Delta,
ReplyDeleteDo you know the statistics of this year pre-exam?
EPO does not show exam officially or the statistic itself.
What are the reason of doing so.
No, we also do not know.
DeleteThe EQE Secretariat did not publish the complete list of marks per EQEregnr, so we cannot calculate the pass rate, nor can we show a score distribution, unlike previous years.
Hi,
ReplyDeleteIn my wise flow - my q7 and q8 are reversed compared to the answers given, would this have affected the marking?
No. the order of questions was randomised for each candidate, presumably to avoid cheating by candidates comparing answers during the exam. The marking should be correct. You should be able to see this by comparing the mark you have been officially awarded with the marks that you believe you should have received according to the Examiner's report.
DeleteHi Amy, as we already indicted on the blogs with our answers, the order of the questions was randomized in each of the legal parts (not in the claims analysis parts), and within each question the order of the statements was randomized.
DeleteSo different candidates got the questions (in part) and statements in different sequences. This may also have had the side-effect that some got it in a more natural order than others which may have affected the difficulty level somewhat- e.g., the renewal fee question some got the statements in sequences 3rd-4th-5th-div year, others in 5th-div-3rd-4th, and again others in div-3rd-5th-4th...
My letter European qualifying examination - Pre-examination - Communication of grade awarded from Chairman of the Examination Board has date 31-03-2021. When can I file appeal?
ReplyDeleteI did not receive correct grades: EQEReg in box at top of letter is not the same as Candidate No: 50720. Grade awarded if from other candidate.
Thank you.
The EQEReg number and the candidate number are not supposed to be the same. This does not mean you were given the marks for a different candidate. If you are worried that you have been awarded the incorrect marks, go through your answers on Wiseflow and compare to the Examiner's report to see what mark you should have got.
DeleteOfficial Journal
Delete2019
Supplementary publication 2
Regulation on the European qualifying examination for professional representatives
Article 24
Appeals
(2) Notice of appeal including the statement setting out the grounds for appeal must be filed in writing with the Secretariat within one month of the date of notification of the decision appealed against. Notice of appeal shall not be deemed to have been filed until the fee for appeal specified pursuant to Article 17 has been paid within the period of one month specified above.
Decision 31-03-2021
Notification Rule 126(2) EPC 10-04-2021
ONE month 10-05-2021
i would be very careful about using 126(2) EPC on that issue.... they sent you the notification via e-mail and 126(2) relates to postal services. If I were you i would not use this rule no matter if it applies or not - however, you are on the safe side.
DeleteSee notice from Secretariat OJ 2020, A140: Appealable decisions will be deemed delivered ten days after being made available on myEQE - so there is definitely a basis for 126(2) EPC.
Delete10-days applies for electronic notification basically the same way as for notification by post.
DeleteR.127(2). Also OJ 2015. A36, item 3 and sub-items.
But why would you wait for the last day? The earlier you file, the earlier there may be a decision ;)
Notice from the Examination Secretariat for the European qualifying examination in OJ EPO 2020, A140:
Delete... all correspondence will be conducted in electronic form only, via the myEQE portal. This goes for all appealable decisions too. The requirement to use registered mail is removed. Appealable decisions will be **deemed delivered ten days after being made available on myEQE**. The time limits for appeal under Article 24 REE will apply mutatis mutandis.
My suggestions for review by the Board of Appeal:
ReplyDelete4.3 - "can, if" must be "will, if" or "can, by"
6.1 - you CAN overcome Art.83 by filing add tech info a amendment - the statement does not include "without violating 123(2)"
6.3 - you can use R.56, even until two months, using the information that is available in the abstract. penalty is change of date, but not in statement.
9.3 – filing new set of claims is at discretion of the examiner, who can decide to not admit them under R.137(3). So not certain whether they can “validly” file “new”=amended claims
10 – drafting error in question and statements with effect on 2 or 3 statementrs, already neutralized
12.4 – if anyone can tell me what temperatures low relate to?
15.1 – field of claim is not a lens, but a composition
15.2 – claim directed to a composition so, to be TRUE, statement should read “The objective technical problem to be solved by the subject-matter of claim III-1 with respect to D2 is the provision of ACOMPOSITIONJ FOR USE AS a photochromic lens, the colour change of which is resistant to temperature changes.”
15.3 - claim directed to a composition so, to be TRUE, statement should read “A valid argument for why the subject-matter of claim III-1 has an inventive step over D2 is because using compound alpha as component X results in A COMPOSITUON FOR USE AS photochromic lens, the colour of which is surprisingly more resistant to temperature changes than when compound beta or compound gamma is used.”
18.1 – Fig. 2 of D2 shows that the cover part is divided into FOUR foldable parts forming a triangular prism, NOT THREE. So statement is TRUE, not FALSE.
19.4 – In all embodiments, the receiving part is described as being a flat base and having four elastically deformable corners. So any amendment that takes a feature from the receiving part into the description must also take in “the receiving part being a flat base and having four elastically deformable corners” (unless it is unambiguously, without using own knowledge, not intrinsically linked to it). If taking in “each section being flat and rigid, and wherein the hinges and the sections are made from the same material such that the hinges are formed by folds of the cover part”.
7x2 (1 or 2 statements in a Question) + 2x5 (Questions 10 and 15) = 24 marks open for discussion! Was it as many in earlier pre-examination papers?
Thank you.
DeleteWhy not 2.4? Rule 19.4(c): can pay to IB.
19.4 - I would also argue that the parallel hinges between sections of the cover are parallel to the hinge between the cover part and the receiving part, not only parallel to each other !
DeleteThis leads to an intermediate generalization because these characteristics are inextricably linked.
T.
Does anyone know if any appeals have been filed? if so, how many and on what issues?
ReplyDeleteAn appeal decision is availaible, question 12.4 is discussed and can be considered TRUE and FALSE ! Unfortunately, question 19.4 is not discussed in details.
ReplyDeletehttps://www.epo.org/law-practice/case-law-appeals/pdf/d210002eu1.pdf
See also my comments to the 2021 Claims Analysis blog post that I posted yesterday
Delete(https://pre-exam.blogspot.com/2021/03/pre-exam-2021-claims-analysis-part-our.html).
The DBA also nicely summarizes the circumstances, conditions, and the extent of their competence to examine Pre-Exam appeals in reasons 3-5 of D 2/12:
Delete"Request that the contested decision be set aside
3. The appellant requested that the contested decision be set aside. He alleged obvious and serious errors in the assessment of his answers to statement 12.4 in question 12 and statement 19.4 in question 19 of the pre-examination 2021. He essentially argued that in the Examiners' Report - Pre-examination 2021 (hereinafter "the report"), the answers to the statements 12.4 and 19.4 and the reasoning given for them were not correct.
4. In accordance with Article 24(4) REE and the consistent case law of the Disciplinary Board of Appeal (hereinafter "the DBA"), which followed decision D 1/92 (OJ EPO 1993, 357), decisions of the Examination Board may in principle only be reviewed for the purposes of establishing that they do not infringe the REE, the provisions relating to its application, or higher-ranking law. It is not the function of the DBA to reconsider the entire examination procedure on the merits. This is because the Examination Committees and the Examination Board have some latitude in their evaluation which is subject to only limited judicial review by the DBA. Only if the appellant can show that the contested decision is based on serious and obvious mistakes can the DBA take this into account. The alleged mistake must be so obvious that it can be established without reopening the entire marking procedure. This is for instance the case if an examiner is found to have based his evaluation on a technically or legally incorrect premise upon which the contested decision rests (D 2/14). Another example of an obvious mistake would be a question whose wording is ambiguous or incomprehensible (D 13/02). All other claims to the effect that the papers have been marked incorrectly are not the responsibility of the DBA. Value judgments are not, in principle, subject to judicial review (see e.g. D 1/92, supra, points 3 to 5 of the Reasons)."
"5. This established case law on the limitation of judicial review in relation to the European qualifying examination within the meaning of Article 1(1) REE (hereinafter: "the examination"), applies mutatis mutandis to the European qualifying pre-examination (hereinafter "the pre-examination"), just as the provisions of the REE apply mutatis mutandis to the pre-examination pursuant to Article 1(7) REE. However, insofar as the award of points for the pre-examination paper is based on a pre-determined solution scheme (e.g. a multiple-choice test), the pre-examination leaves no room for discretionary marking. In the pre-examination, candidates are expected to respond to clearly defined statements in a multiple-choice mode, to which they can only answer "True" or "False" by ticking a box; they have no possibility to add any reasons or explanatory notes. Any such indications will not be taken into account (see Instructions for answering the pre-examination paper and marking scheme for the pre-examination 2021, No. 1.(d)). The formulation of the facts and the statements to be evaluated in a question are therefore of utmost importance in the pre-examination. The questions to be answered and the statements to be evaluated in a multiple-choice test such as the pre-examination should therefore be formulated clearly and unambiguously (see also decisions D 5/16 and D 6/16). Therefore, when setting an examination question for the pre-examination, it must be ensured that only one answer can be given to the respective statement when taking an informed and objective view or interpretation of the wording of the facts and the respective statements in the question (D 15/16, point 2.3 of the Reasons). It is thus crucial to formulate the statements in such a way that clearly only one answer, i.e. either "True" or "False", is possible and "correct" under the given circumstances (see also decisions D 5/16 and D 6/16). In particular, terms and formulations are to be avoided which initially lead the candidates to an interpretation, which, as a result, partly leads them away from the answer and technical and/or legal assessment actually pursued by the authors of the paper, and which thus leads the candidates to considerations and results which do not do justice to the sense and purpose of the pre-examination (see e.g. D 5/16, point 32 of the Reasons; D 6/16, point 19 of the Reasons). Contradictory, misleading or ambiguously formulated facts and/or statements can have the consequence that candidates judge them differently from the solution scheme of the Examination Board without having the possibility to present a different opinion which is not wrong but justifiable. Unlike in the examination, such deficiencies in the pre-examination paper can therefore not already be recognised in the course of the correction of the papers and taken into account in the marking, but can only be corrected - if at all - in the course of an appeal (see also D 15/16, point 2.3 of the Reasons). Therefore, in a pre-examination, unclear and confusing facts or statements constitute a serious and obvious mistake (see also D 3/19, point 2.3 of the Reasons with reference to D 13/02, point 4 of the Reasons).
Delete[continues]
"[5 continued]
DeleteHowever, if a statement is logical and makes sense, so that, using common sense, it is clear what answer was expected, candidates cannot rely on exceptions to the rule or explore alternative interpretations with a view to showing that a different answer might also be conceivable in specific instances (see e.g. D 5/16, point 33 of the Reasons). It follows that in the case of a pre-examination, the review requested by the appellant does not concern the question of whether the evaluation of the assessment of the respective statement stricto sensu, i.e. the appellant's assessment of the statement concerned as "True" or "False", is correct. It is rather a question of the correct interpretation or the general understanding of the statement concerned, including the facts underlying the pre-examination question and the conclusion to be drawn therefrom as to whether the statement concerned is clearly to be assessed as "True" or "False". The assessment itself, i.e. the awarding of points, is then usually carried out on the basis of the simple solution scheme of a multiple-choice test with solution statements that are either "True" or "False", i.e. on a completely objective basis (see also decision D 15/16, point 2.2 of the Reasons)."
To conclude -see the decision or my yesterday's comments to the blog post in the claims analysis blog for details- that:
Delete"17. For the above reasons, the answer "False" cannot be considered to be the only correct answer that can be given to statement 12.4 when taking an informed and objective view or interpretation of the wording of the facts underlying the pre-examination question 12 and the statement 12.4. As a consequence, the question of whether or not statement 12.4 is correct cannot be answered with either "True" or "False" as required by a "multiple-choice" question in the pre-examination.
18. Since in a pre-examination unclear and confusing facts or statements constitute a serious and obvious mistake, the appeal is well founded and allowable. The further objection concerning statement 19.4 need not be dealt with in this decision. According to Article 24(4), second sentence, REE, the contested decision is to be set aside."