Monday, March 20, 2023 ChatGTP-4 finds the pre-exam legal part quite challenging.

From the ChatGTP-4 paper, we understand that its ability to pass exams has been greatly increased. For example, "on a simulated bar exam, GPT-4 achieves a score that falls in the top 10% of test takers. This contrasts with GPT-3.5, which scores in the bottom 10%.", see [1]. Naturally, we were curious to see how the AI would do on the EQE. The pre-exam legal part seems to be the most accessible for an AI, so this is the part we tried. 

We did two runs, one with a short prompt, and one with a long prompt. Both prompts explain the exam's requirements and ask for step-by-step reasoning. The long prompt also contains a question from last year's exam with an example of the required step-by-step legal reasoning. The prompt had to be very clear the program always needs to answer True or False, otherwise you get a lot of answers explaining why the available information is insufficient to make a decision. 

From the 40 true/false questions, the runs had respectively 17 and 14 errors, resulting in 22 and 25 marks out of the available 50 marks (taking Diane and Roel's answers as  the standard). Cherry picking the best answers from both runs gave 11 errors and 30 marks. We didn't try the claim analysis part, not yet anyway, but with 25 marks you are on your way to a passing grade. Probably, not in the top 10% though. 

One would expect that the date calculations would trip the program up, but most errors came from a misunderstanding of the law. Question 2 quoted below is a good example. 

Hallucinations occur here and there, especially in the legal references. Often without impacting the analysis though. For example on question  9.1 (accelerated proceedings) the program made the following references, "However, Rule accelerated examination is available under Article acceleration of European patent applications, but the request must meet the requirements of Rule acceleration." The answer was still correct, so it was lucky there. 

Below is ChatGTP-4's output for questions 1, 2, and 4 to illustrate it ability. We think questions 1 and 4 were answered correctly, with mostly correct reasoning. But the answer to question 2 seems wrong. For readability we include the original question in italics, but exclude the prompt, below 'answer' is a copy paste of ChatGTP-4's output, when prompted with the long prompt.

[1]: GPT-4 Technical Report, by OpenAI, gpt-4.pdf (openai.com)

Roel, Sander

Question 1

You are a professional representative before the EPO. Today, 6 March 2023 you have received an email from your client, Alvar, a national of Finland. He wants you to file a European patent application EP-A in his name, claiming priority from FI-A, a Finnish patent application. FI-A was jointly filed in the name of Alvar and Aino on 4 March 2022. A copy of FI-A is attached to the email. No other document or information is sent with the email.

For each of the statements, indicate whether the statement is true (T) or false (F):

1.1. Alvar as a natural person is not entitled to a reduction of the filing fee.

1.2. On the basis of the information given above, you can file today, 6 March 2023, a European patent application EP-A in Alvar's name at the EPO and it will be accorded 6 March 2023 as the date of filing.

1.3. You can validly file EP-A in Finnish.

1.4. On the basis of the information given above, you can be sure that EP-A can validly claim priority from FI-A.

Answer from ChatGTP-4

Alvar as a natural person is not entitled to a reduction of the filing fee.

Discussion: According to Rule 6(4) of the Rules relating to Fees, a reduction of the filing fee is available for natural persons and small and medium-sized enterprises (SMEs) under certain conditions. However, this reduction is applicable only to applicants who are nationals of and have their residence or principal place of business in a Contracting State with an official language other than English, French, or German. Finland has Finnish as its official language.

Conclusion: As a national of Finland, Alvar is a natural person with an official language other than English, French, or German. Therefore, the statement is False, because Alvar is entitled to a reduction of the filing fee.

On the basis of the information given above, you can file today, 6 March 2023, a European patent application EP-A in Alvar's name at the EPO and it will be accorded 6 March 2023 as the date of filing.

Discussion: According to Article 80 EPC, the date of filing a European patent application is the date on which the documents filed contain the minimum requirements set forth in Rule 40(1) EPC. Rule 40(1) EPC requires: (a) an indication that a European patent is sought, (b) information identifying the applicant or allowing the applicant to be contacted, and (c) a description or reference to an earlier application. The information provided by Alvar in the email meets these requirements.

Conclusion: The statement is True, because the European patent application EP-A can be filed today, 6 March 2023, in Alvar's name at the EPO and will be accorded 6 March 2023 as the date of filing.

You can validly file EP-A in Finnish.

Discussion: Rule 6(1) EPC specifies that the official languages of the EPO are English, French, and German. However, according to Rule 6(2) EPC, any document filed in an official language of a Contracting State, which is not English, French, or German, may be filed in that language. In such cases, a translation into one of the official languages of the EPO must be filed within a period specified by the EPO.

Conclusion: The statement is True, because EP-A can be validly filed in Finnish, as it is an official language of Finland, a Contracting State. However, a translation into one of the EPO's official languages must be filed within the specified period.

On the basis of the information given above, you can be sure that EP-A can validly claim priority from FI-A.

Discussion: According to Article 87(1) EPC, to validly claim priority, the European patent application must be filed within 12 months from the filing date of the earlier application. Additionally, the applicant for the European patent application must be the same as or the successor in title to the applicant of the earlier application. In the given case, the European patent application is filed within 12 months from the filing date of the Finnish application (4 March 2022). However, FI-A was jointly filed by Alvar and Aino, whereas EP-A is being filed only in Alvar's name.

Conclusion: The statement is False, because it cannot be determined whether EP-A can validly claim priority from FI-A without additional information regarding the ownership of the earlier application and the consent of Aino for the priority claim.

Question 2

Paula is resident in Romania and has no EPO mailbox for electronic notification. On 13 February 2023, Paula filed the European patent application EP-P as a first filing. The EPO noticed that the drawings mentioned in the description were missing. In a communication dated 22 February 2023, the EPO invited Paula to file the missing drawings.

For each of the statements, indicate whether the statement is true (T) or false (F):

2.1. If Paula ignores an invitation by the EPO to file missing parts of the description or missing drawings, EP-P will be deemed to be withdrawn.

2.2. Paula may validly file the missing drawings for EP-P on 6 June 2023, provided she pays the fee for further processing.

2.3. If applicants are not invited by the EPO to file missing parts of the description or missing drawings, they may validly file them within two months of the date of filing.

2.4. If Paula files the missing drawings on 3 May 2023, EP-P will receive 3 May 2023 as its date of filing.

Answer from ChatGTP-4

Statement 1: According to Rule 56(1) EPC, if the description or drawings referred to in the claims are missing, the EPO shall invite the applicant to file the missing parts. If the applicant fails to comply with the invitation, the application shall be deemed to be withdrawn under Rule 56(2) EPC. In this case, Paula was invited by the EPO to file the missing drawings. If she ignores this invitation, her application will be deemed to be withdrawn. Therefore, statement 1 is True.

Statement 2: Under Rule 56(3) EPC, the applicant may still file the missing parts within a period of two months of the date of the invitation, and this period may be extended upon request by the applicant under Rule 132(2) EPC. If the applicant files the missing parts within this period, the date of filing will remain unchanged. However, if the missing parts are filed after this period, further processing under Article 121 EPC and Rule 135 EPC is necessary. The deadline for further processing is within two months of a communication concerning either the failure to observe the time limit or the possibility of further processing. In this case, Paula was invited on 22 February 2023. Therefore, the deadline to file the missing drawings is 22 April 2023. Filing the drawings on 6 June 2023 would be after this deadline. Hence, statement 2 is False.

Statement 3: According to Rule 56(1) EPC, if an applicant is not invited by the EPO to file missing parts of the description or missing drawings, they may validly file them within two months of the date of filing. In this case, since the EPO invited Paula to file the missing drawings, this rule does not apply. Therefore, statement 3 is False.

Statement 4: If Paula files the missing drawings within the time limit set in the invitation, which is two months from the date of the invitation, the date of filing remains unchanged under Rule 56(3) EPC. In this case, the invitation was sent on 22 February 2023, and the two-month deadline would be 22 April 2023. If Paula files the missing drawings on 3 May 2023, which is within the two-month deadline, the date of filing for EP-P remains unchanged, i.e., 13 February 2023. Therefore, statement 4 is False.

Question 4

In 2020, company A was interested in exploiting a new medical device it had developed, and, for this purpose, details of the device were disclosed in confidence to company B. Unknown to company A, company B filed a European patent application EP-B with an effective filing date of 6 June 2021. Made aware of the publication of EP-B, company A sought before a national court to be recognised as entitled to the grant of a European patent for the invention disclosed in EP-B. By a final decision of the national court dated 10 January 2023, it has been adjudged that company A is entitled to the grant of a European patent for the invention disclosed in EP-B. This final decision is recognised by all contracting states designated in the application EP-B.

For each of the statements, indicate whether the statement is true (T) or false (F):

4.1. If EP-B is still pending and has not yet been granted, a request that company B must withdraw EP-B, filed by company A at the EPO, will be allowed.

4.2. If EP-B is still pending and has not yet been granted, company A may prosecute EP-B as its own application in place of company B.

4.3. If EP-B is still pending and has not yet been granted, company A may validly request that EP-B be refused.

4.4. If EP-B has been deemed to be withdrawn and is thus no longer pending, company A may still file a new European patent application EP-A in respect of the same invention, wherein EP-A shall be deemed to have been filed on 6 June 2021.

Answer from ChatGTP-4

4.1 For statement 4.1, we need to consider the legal situation regarding the request by company A for the withdrawal of EP-B. According to Article 61(1) EPC, if a decision has been taken by a national court that a person other than the applicant is entitled to the grant of a European patent, that person may either prosecute the European patent application as his own application in place of the applicant or request that the application be refused. There is no explicit provision in the EPC that allows company A to request the withdrawal of EP-B. Therefore, statement 4.1 is False.

4.2 For statement 4.2, we need to examine whether company A can prosecute EP-B as its own application in place of company B. As mentioned earlier, according to Article 61(1) EPC, if a national court has decided that a person other than the applicant is entitled to the grant of a European patent, that person may prosecute the European patent application as their own application in place of the applicant. In this case, the national court has decided that company A is entitled to the grant of a European patent for the invention disclosed in EP-B. Therefore, statement 4.2 is True.

4.3 For statement 4.3, we need to assess if company A can validly request that EP-B be refused. As discussed under statement 4.1, Article 61(1) EPC provides two options for the person found entitled to the grant of a European patent: to prosecute the application as their own or to request that the application be refused. In this case, company A is entitled to the grant of a European patent for the invention disclosed in EP-B, so they can request that EP-B be refused. Therefore, statement 4.3 is True.

4.4 For statement 4.4, we need to determine if company A can still file a new European patent application (EP-A) with the same filing date as EP-B if EP-B has been deemed to be withdrawn. According to Article 61(2) EPC, if a European patent application has been withdrawn, the person found entitled to the grant of the European patent may file a new European patent application within three months of the decision becoming final. The new application shall be deemed to have been filed on the date of filing of the earlier application. In this case, the decision became final on 10 January 2023, and no information indicates that the three-month period has passed. Therefore, statement 4.4 is True.