Tutors' report on the EQE 2021 papers and the meeting between tutors and EQE committees
N. Cordes (NL), L. Ferreira (PT), A. Valborg Guðmundsdóttir (IS), A. Hards (DE), J. Hoekstra (NL), H. Marsman (NL), and R. van Woudenberg (NL)
Each year in September-October, the European Patent Academy and the epi arrange a meeting of EQE tutors and members of the EQE Committees, usually referred to as "the Tutor Meeting". The goals are to discuss this year's papers, to improve future EQE's by openly exchanging ideas and to help tutors prepare candidates for next year's exam.
The Examination Board has kindly given the tutors permission to publish their own report of the important points so that candidates can more easily find this information. In addition, the comments can greatly assist when reading and interpreting the official Examiners' Reports. The Tutors' Report appears each year in the last edition of epi Information.
This year's meeting was held by videoconference, in the mornings of 19 and 20 October 2021. Tutors, other EPO and epi members from the Academy, EQE secretariat and epi institute, as well as Committee members and Examination Board members were present. Unfortunately, this year's meeting did not have the usual, much appreciated, informal aspect of the meeting (dinner, drinks, coffee, lunch). We all look forward to having the 2022 Tutor Meeting again in person at the EPO!
Some participants submitted questions for the Committees by email prior to the meeting, which were distributed to the committee members prior to the meeting. During the meeting, additional questions were asked. The questions were addressed by the Committees and the Examination Board when discussing the papers. The answers are incorporated in this report and can be used to supplement the information from the Examiners' Reports.
This Tutors' Report contains the following sections:
- Pass rates EQE 2021;
- The online EQE: e-EQE;
- General remarks from the Tutor Meeting;
- Paper A;
- Paper B;
- Paper C;
- Paper D;
- Pre-Exam; and
- Concluding remarks.
On behalf of the tutors present in the meeting, I would like to thank all the members of the Examination Board and Committees as well as the EQE department and Exam Secretariat for their openness, for listening to our opinions and comments, and for providing their feedback thereto. This meeting is our yearly opportunity to learn from each other. My thanks also go to the tutors who asked questions and contributed to the discussions.
My special thanks to my co-authors -in alphabetical order- Nico Cordes, Luis Ferreira, Anna Valborg Guðmundsdóttir, Andrew Hards, Jelle Hoekstra, and Harrie Marsman for finding time to prepare the individual paper summaries.
We all wish you good luck in 2022,
R. van Woudenberg (editor)
1. Pass rates EQE 2021
In view of the cancellation of EQE 2020 in view of the COVID-19 pandemic, the Supervisory Board allowed all candidates that satisfied the 3-year supervised training period (4-year for examiners) to sit one or more main exam papers in 2021 without the need to have sat and passed a Pre-ExamDecision of the Supervisory Board, 20 April 2020 & Communication of the Supervisory Board, 20 April 2020. As a result, the number of Pre-Exam candidates was about 2/3 of the usual number. The number of main exam candidates was significantly higher (about double) for this same reason, but especially because of the 2020 cancellation which required the whole 2020 group to defer its sitting to 2021.
In 2021, 547 candidates out of 626 (87%) passed the Pre-Exam, similar as in 2019 (2019: 88% from 920 candidates; 2018: 74%; 2015-2016-2017: 76%).
1093 out of 2780 candidates that took at least one paper candidates passed the EQE (compared to 672 out of 1746 last year).
For the individual main exam papers, paper A, B and C showed a similar pass rate as in 2019. The pass rate of paper D was very high due to a full awarding of 25 marks to the first 25-mark D1-part (in view of an issue at its start, see below), whereby candidates only needed 25 resp. 20 marks from the rest of the paper (i.e., the second 25-mark D1-part and the 50-mark D2-part) for a pass resp. compensable fail.
The official results for each paper, as published on the EQE website and dated 29 June 2021 for EQE2021, are shown in the table below:
|EQE 2021*||# Candidates**||PASS***||COMP.FAIL||FAIL|
|Pre-Exam (4 x 70 min)||626 (920)||87,37%||--||12,62%|
|A (4 hours)||1905 (1002)||74,38%||4,41%||21,21%|
|B (3½ hours)||2005 (819)||55,26%||10,02%||34,71%|
|C (2 x 3 hours)||1852 (1043)||47,08%||9,67%||43,25%|
|D (90 min + 90 min + 3 hours)||2003 (1198)||85,57%||5,89%||8,24%|
*Note: As of 2017, the Pre-Exam, A, B, C, and D papers are designed according to Rule 22-27 IPREE as 4h, 3½h, 3h, 5h and 5h respectively, but all candidates are granted an additional thirty minutes per paper to these durations (by Decision of the Supervisory Board of 17 November 2016). In the e-EQE 2021, the Pre-Exam and C and D papers were split into multiple parts. Each part had to be completed before the start of the next break, with the next part only becoming available after the break. As a result, candidates were no longer free to allocate their time as they see fit across the different parts of the Pre-Exam and the C and D papers. To compensate for this restriction, the total duration of the Pre-Exam, C and D papers was extended. Once the time allowed for a part had elapsed, it was possible to go back to that part.
**Note: The 2019-numbers are given in brackets.
***Note: These pass rates as published do not include the results of any appeals. It is not known whether/ how many appeals have been successful in interlocutory revision by the Examination Board or before the Disciplinary Board of Appeal.
2. The online EQE: e-EQE
The EQE went online
The Communication of 20 April 2020 of the Supervisory Board of the EQECommunication of the Supervisory Board, 20.04.2020 provided:
"On 4 March, the Board had unanimously decided to cancel the exams and pre-exams scheduled to take place in Munich and ten additional European cities from 16 to 19 March 2020. It did so after thoroughly analysing the information publicly available at the time about the COVID-19 pandemic in Europe. The main driver of such decision was the need to safeguard not only the health and safety of the nearly 3.000 people that participate and are involved in the organisation of the Exams, but also to preserve the health and safety of the public in general. At the time, the Supervisory Board also informed the interested parties that it would continue to follow-up closely the developments of the COVID-19 and that a final decision on the 2020 Exams and Pre-Exam would be taken and communicated."
In their communication of 23 July 2020EQE 2021 - Important information from the Supervisory Board, 23.07.2020, the Supervisory Board indicated that the EQE 2021 would be an e-EQE:
"The European qualifying examination (EQE) 2021 is planned to be conducted online. [...] The EQE syllabus and the structure of the various examination papers will be as outlined in the REE and IPREE and in line with previous years' examination papers (Compendium)".
In their "Information on the schedule" communication of 2 December 2020Information on the schedule for the EQE 2021 examination papers, 2 December 2020, it was indicated how the exam papers and the schedule would be adapted for the online EQE 2021 (e-EQE):
"The EQE 2021 exam schedule is now available. Candidates are advised that this document may be subject to minor changes as testing continues.
The EQE 2021 will take place online using LockDown Browser."
"The pre-examination and both papers C and D will be split into parts. This means that candidates will not be free to allocate their time as they see fit across the different parts of the papers. To compensate for this restriction, the total duration of the relevant papers has been extended. Once the time allowed for a part has elapsed, it will not be possible to go back to that part."
"The pre-examination will have the same syllabus and character as before, but it will be split into four parts. Each part must be completed before the start of the next break, with the next only becoming available after the break."
"Paper D will have the same syllabus and character as before, but it will be split into three parts. Each part must be completed before the start of the next break, with the next part only becoming available after the break. Paper D lasts six hours. Candidates will be allowed to print only the calendar."
"Paper A will have the same syllabus and character as before [note from the editor: Paper A was not split in parts]. Paper A lasts four hours. Candidates will be allowed to print the prior-art documents and the drawings of the application, but not the letter of the applicant."
"Paper B will have the same syllabus and character as before [note from the editor: Paper B was not split in parts]. Paper B lasts 3.5 hours. Candidates will be allowed to print the prior-art documents and the drawing(s), but none of the following: the description and claims of the application, the EPO communication, the client's letter and the amended claims."
"Paper C will have the same syllabus and character as before, but it will be split into two parts. The first part is to be completed before the break, with the second part only becoming available after the break. It will not be possible to go back to the first part after the break. Paper C lasts six hours. Candidates will be allowed to print everything except the claims of the patent in suit/opposed."
The communication also included the start and end times of each (part of the) paper, and information about possible unscheduled breaks, which were only allowed for paper A, B, C part 1, C part 2, and D2, but not for the shorter parts (the four Pre-Exam and the two D1 parts).
EQE 2021 was conducted using the locked browser in the examination platform Wiseflow. Wiseflow provides a secure online exam platform, allowing candidates to take the exam from any suitable location (without any other person in the room and without any other electronic equipment in the room/within reach apart from the computer and screen used for the exam), i.e., typically from home or the office. There were no examination centers. A computer with a network connection was required, and only a single screen could be used of a size and resolution at the candidate's choice.
For the Pre-Exam, Wiseflow provides the questions in all three EPO languages and with onscreen True/False answer options (clickable bullets) to each of its 4 statements, also presented in all three languages.
For the main exam papers, Wiseflow provides a secure environment (FLOWlock) with the paper in pdf format and a proprietary editor with basic formatting functions (underline, bold, italics, but no underline: for indicating deletions in paper B, indicating the deleted part between square brackets was suggested; enumerated lists, bullet lists). The editor allowed a basic copy/paste from any text part of the examination paper into the editor, and within the editor. No annotation or highlighting was possible in the main exam papers, but was possible in the answer in the editor and in the Pre-Exam onscreen questions. Answers could only be provided by typing into the editor; it was not possible to scan a handwritten answer and upload that.
As in the previous exams, candidates could bring any paper documentation, and make notes on paper. These notes could however not be handed in. During the exam (and in the last Mock), the legal texts on the EPO website were also available in Wiseflow from "External Resources"; PCT legal texts were however not available as they are not on the EPO server. During the Tutor Meeting, we were informed that EPO legal texts will again be available in Wiseflow during EQE 2022, but unfortunately again no PCT legal texts.
Candidates were able to have a first look at the examination system Wiseflow by means of a mock examination (Mock 1). Mock 1 was intended for candidates to test their equipment and get acquainted with the examination environment. Candidates, and registered tutors, were able to access the respective mock papers according to their enrolment to the EQE 2021 papers. There was no proctoring in Mock 1. Mock 1 was open from 22 December 2020 until 28 February 2021.
From Monday 1 to Friday 5 February 2021, a second Mock exam was available with a Pre-Exam paper prepared by the EPI and main exam papers prepared by epi. Mock 2 was conducted with the same times and breaks as in the e-EQE 2021. Mock 2 included proctoring (AI and human invigilation), requiring a camera and microphone. In this manner, Mock 2 allowed candidates to test the system under realistic examination conditions. Also, some issues were detected and candidates were informed about those by the FAQ on the EQE website as well as by various blogs (e.g., the use of Alt-Tab in Wiseflow is considered by the system as a suspicious key combination and immediately ends the flow).
A further mock examination Mock 3 took place on 23 February 2021 with one main exam flow and one Pre-Exam flow. Mock 3 provided the last chance for candidates to test their equipment and system settings, including camera, microphone, invigilation, and ZenDesk. The contents of Mock 3 was not new as it focused on the testing of the equipment.
Many updates of the Wiseflow User Guide, Wiseflow Tutorial, e-EQE requirements, Tips for Candidates, and FAQ were published on the EQE website from December until late February, and various updates were made to the Wiseflow system between December and late February. Several blogs informed candidates about any updates and allowed candidates to share experiences and discuss issues and options.
At the Tutor Meeting, Nicolas Favre (Examination Board) indicated that more than 12% of the EQE 2021 candidates had not taken part in any of the Mocks and had not tested the exam platform prior to the exam! He strongly recommends all candidates to test the system and settings, and that special care needs to be taken with respect to virus scanner and automatic updates (which the lockdown browser will detect as unauthorized activities).
Nicolas observed that no one had tested what would happen if you do not do anything on your computer, but just read on paper for 30 minutes (as you may do in paper C) and/or work on paper for a while; there is a risk that your computer activates your screen saver or changes power mode.
The actual e-EQE
The online exam took place from 1 March 2021 (Pre-Exam) and 2 - 5 March 2021 (main exam papers). Compared to earlier years, the main exam papers were in the same sequences as before (D, A, B, C), but A and B were held on subsequent days rather than on the same day, to limit the time behind the screen on a single day.
In the Pre-Exam, the sequence of the questions was randomized in each of the four parts (legal as well as claims analysis), to reduce the chance of cheating. Furthermore, in the legal part, the sequence of the statements within a question was randomized.
At the start of the first part of main exam paper (D1-1), all candidates could only see the German version of the first D1-part in Wiseflow. Candidates were not (immediately) aware whether the problem was an individual problem or a general problem and took all types of action: waiting, refreshing, getting in the Zendesk queue for support, exciting the system, ... Although technically the problem was solved about 6 minutes later (so that the candidates that had managed to keep a cool head could start to work on the English or French version), and candidates were awarded 30 minutes extra time (but requiring a refresh-action to actually receive those 30 minutes). This caused quite some unrest and discomfort and also resulted in a wide variety of conditions between candidates (time available depending on individual actions taken and language used; different panic and stress levels).
The day after the exam, the Examination Board issued a messageMessage from the Examination Board about paper D1.1 dated 3.3.2021 indicating that: "The Examination Board for the EQE is aware of a disruption affecting paper D1.1 and guarantees that no candidate will be disadvantaged as a result during the marking process."
At the Tutor Meeting , the Examination Board indicated that they had considered a large variety of ways to try to compensate for the differences; it thus took quite some time to decide on the matter and, when D 11/19 was issued and emphasized the need for a level playing field and equal treatment of all candidates, the fairest solution was to neutralize D1-1, i.e., to award the full amount of 25 marks out of 25 to all candidates for this first part of D1. This decision was widely appreciated.
Legal basis in the EQE 2021
According to the decision of the Supervisory Board of 20 April 2020, "For the 2021 main examination only, candidates' answers will be marked either on the basis of the legal texts and document versions in force on 31 October 2019, or on the basis of those in force on 31 October 2020, depending on which of the two dates would give the candidate the higher mark." Hereby, candidates that had fully prepared for EQE 2020 and were confronted less than two weeks before the planned exam, were not required to update all their legal texts for the EQE 2021.
It was indicated at the Tutor Meeting that apart from Guidelines of November 2018 (as being the ones in force on 31 October 2019) and from Guidelines of November 2019 (as being the ones in force on 31 October 2020), as well as the Guidelines of March 2021 (as being the ones in force on the date of the main exam papers and available via "External Resources" in Wiseflow during the exam) were accepted as valid legal basis.
At the Tutor Meeting, a tutor indicated that the differences between these three versions of the Guidelines are relatively small, but some differences may have affected the difficulty/ease of finding an answer (e.g., D1-2, Q.5 can be answered via GL/PCT-EPO A-V, 8 in the Nov 2019 or March 2021 version, but not in the Nov 2018 version, which did not yet include Chapter V - Drawings; a candidate using the Nov 2018 version thus had to find Rule 26.3ter PCT itself). This was considered acceptable as being a consequence of being flexible.
3. General remarks from the Tutor Meeting
The meeting itself opened with words of welcome and introduction by Nicolas Favre (Chair of the Examination Board).
Nicolas indicated that the meeting would not be recorded in view of privacy and to allow open discussion. He also asked all participants to refrain from recording.
Nicolas drew the attention of the audience to the fact that the EQE is a joint EPO-epi effort, made possible by a large number of volunteers who were thanked for their immense work and time. It was commented that after such a large effort of carrying out the exam electronically and while working under very challenging conditions because of the new pandemic 'normal', it may be quite advisable to favour stability and avoid abrupt changes. It was generally accepted that changes should be communicated as soon as possible and always with ample time for the benefit of candidates.
General remarks e-EQE 2021
Some questions were received prior to the meeting. Generally, these questions would not be answered explicitly, but the answers were included in the presentations by the Committees.
Nicolas indicated that this very first e-EQE was an experiment. It went well, although it was not perfect, as it was a first-time event. The EQE learned from technical glitches, one having big consequences (the D1-1 disruption, see above). If glitches would happen again, the organization will react as soon as possible.
D1-1 was neutralized as a whole. It took some time to take that decision: many scenarios and measures were considered. The fairest was to neutralize.
The EQE learned a lot from the system and will optimize it further, as far as in their control and abilities. The Wiseflow system was selected from various candidates as it was the best suitable platform for the EQE in view of the need for 3 languages all at the same time, and with 1000s of candidates at the same time.
The Examination Board tried to be as fair as possible in the marking to take into account the circumstances. E.g., for paper B there was not just one answer to get close to full marks. Also, apart from results from the pre-marking, comments on the blogs and other information available to the Examination Board were used in finalizing the marking scheme. Nicolas reminded us that the EQE is a joint effort between the EPO and epi, and that some of the comments posted on blogs indicate that some candidates seem to not be aware of this, as they refer to the EPO only.
All complaints, formal complaints timely filed as well as later complaints sent to the EQE secretariat, have all been considered by the Examination Board, even though no individual feedback was given to all concerned.
The number of appeals is higher this year than in previous years. However, the number of appeals is about proportional to the number of candidates, such that the number of appeals does not seem to be affected by the exam being online. At this moment, no further comments could be made about appeals in view of chair pending status.
All main exam papers are marked by two markers, which later check where and why they disagree.
The short time between the decision to go online and the exam was too short to adapt all papers significantly (the design process takes more than 2 years). Most EQE 2021 papers were as originally planned, i.e. on paper, versions, which were adapted within a very short time to the online format.
Guinea pig sessions, where members from other Committees take the exam, are done about 18 months before the exam, when the paper is in a more or less its final stage, in one language only (English). The guinea pigs also include English language non-native speakers. As is clear from the timing, the guinea pig sessions were not done using Wiseflow, but with the classical paper exams.
The Examination Board decides as to what is printable and what is not. Each Committee is represented in the Examination Board. The Committees perform the actual split into parts and make the printable and online-only parts.
Outlook to 2022 [comments made spread out over the meeting by various people]
Improvements to Wiseflow are not yet known. Technical limitations and functionality choices by the supplier may prohibit some improvements (e.g., Alt-Tab behaviour will likely stay the same, despite the wish to have it changed). It is expected that there will be some form of highlighting or annotation in the pdfs of the paper.
Discussions are ongoing on a possible EQE reform as of EQE 2024 or later. At this moment, no decisions have been taken yet, and no further information is available. EQE 2024 papers will be prepared according to the current format so that the exam can still be held in the current format, and -when a decision is taken- will also be made according to the new format.
4. Paper A by Andrew Hards and Anna Valborg Guðmundsdóttir
Paper A 2021 was held electronically and thus the paper was adapted to the Wiseflow and LockDown browser environment. However, fragmentation of the paper into smaller units was not possible and thus the candidates were presented with a full Paper A to solve within the traditional 4 hours.
Just before the examination, candidates were allowed to print the prior-art documents and the drawings of the application, but not the contents of the applicant's letter. A challenge of the LockDown browser was thus the analysis of the applicant's letter, seeing as it was not possible to mark or highlight the text in the PDF.
Paper A was presented at the tutor's meeting by the main drafter Jeremy Mauger and the topic this year involved coated engine components made from superalloys for use at above 1600°C. The technical problem was to provide for increased lifetime of the components during these high temperatures as the coating ended up being partially lost when subjected to thermal stress. The solution was to provide for the coating on the component in the form of a columnar microstructure while still covering all three embodiments provided by the client each having a slightly different optimization effect.
Further to the above, the client proposed using two methods resulting in a different column microstructure coating, being either formed directly or machined afterwards on the component. The key idea here was to identify the essential features of each method producing the coating required to solve the technical problem, while assuring novelty vis-à-vis D1 and D2. To fulfil these requirements, it was sufficient to state that the two methods form the components of claim 1 or alternatively incorporate the essential features of claim 1 therein.
As usual, candidates should focus on adapting the applicant's letter into a description. The guidance provided by the committee included removing the personal instructions to the client and making sure that the description is logical and consistent with the set of claims drafted. Further to that, it is of course important to present the problem of the invention and highlight the advantages of the significant dependent claims. The figures or examples can be omitted.
The committee also stressed that candidates must not provide for more than one version of an independent claim ("shot-gun approach") in hopes for catching the best claim. This strategy will result in the worst claim being marked instead. As such, the "famous last claim" can destroy a perfect claim set.
In previous years, there would always be a few papers where the markers struggled with the candidate's handwriting. It was mentioned that the markers welcomed the easily readable typed solutions this year.
In general, the tutors at the meeting felt that Paper A 2021 was traditionally structured and in line with previous years. The paper tested essential and non-essential features, had a good mix of mechanics and chemistry plus requiring different claim types. This was supported by a pass rate of 74.4% with compensable of 4.4% which is within the normal range.
When enquired if the structure of Paper A can be expected to change in the near future, the committee said that they are not against that as such. However, the exams are setup for the claims to require certain features, preventing ambiguous or multiple potential solutions, making the current exam structure favourable. We will have to see if the next papers for A will show more variation in the future, as was done for paper B 2021 which introduced new exam aspects this year.
Paper B by Harrie Marsman & Luis Ferrera
For Paper B, moderator Nicolas Favre (Chairman of EQE Examination Committee I) and Harald Schmidt-Yodlee (EPO, main drafter) attended the meeting. Harald was assisted in the preparation of the Paper by Michael Kelly (EPO) and Carsten Hohendorf (epi).
Harald gave a presentation on the paper that had a pass rate of 55.3%, complemented by a compensable grade rate of 10.0%.
It was admitted that Paper B was perhaps the least suitable paper to be tested in an eEQE, due account taken of the split paper C, which otherwise would have been the more challenging paper to take electronically. Although it was tried to relieve the difficulties in the paper being provided electronically, the paper was not easy. In particular, it is not easy to see parts of the paper side-by-side and it is not possible to see parts of the answer side-by-side. Highlighting was also not possible. Paper B was probably the most affected paper by the lack of a major part of the exam in printed form.
Paper B was on a compost container for producing organic fertilizer from organic refuse using earthworms. The technical field was considered generally understandable by all candidates. The application presents the optimum conditions for earthworms in the composting process. The earthworms need a moist and aerobic environment. The refuse should not be too wet, because (1) the compost starts to smell and (2) earthworms will not compost the refuse. If the refuse is too dry the earthworms will not survive. It is therefore necessary to control the moisture by removing excess water if the refuse is too wet and by spraying water on the refuse, if the refuse is too dry. The application also refers to a dark environment for optimal development of the earthworms, which can be achieved by locating the container in a dark area, by a non-transparent covering lid, or by a floating lid.
Harald gave an overview of the paper, discussed the prior art and official communication, and the client's instructions and claims. Expected claims, expected arguments and inferior solutions were then discussed. This has also been covered in the very complete Examiners' Report.
Main issues in the paper were the presence of 3 independent claims: a container claim 1, a method for producing a fertilizer claim 4, and a calculation method for optimizing processing organic refuse claim 6. In addition to novelty and inventive step objections, the Examiner raised an objection under Art. 52(2)(c) EPC, a novum in paper B. Furthermore, 3 prior art documents were cited by the Examiner and reference was made to a third party observation dealing with an alleged public prior art, another novum.
This made that there were quite some arguments to be made and a difficulty of the paper was that compared to previous single papers B, this year there was less guidance to the solution. Or said in other words, there was not one single golden solution, this year.
Added to this, this was the first time that paper B was tested in an eEQE, and a number of tutors criticized the fact that if less guidance is given by the applicant in its letter, the amount of time to draft the answers may need to be correspondingly increased.
Nevertheless, some participants expressed their preference to being able to copy/paste and make use of the new system. A tutor also suggested that a typing course could be selectively advantageous to those candidates disposed to improve their typing skills.
Fact was that there were quite a number of suitable solutions for claim amendments which all could score a considerable amount of marks. Thus, candidates who argued effectively in supporting a well-reasoned solution got substantial marks. It was said that creative candidates sometimes find unexpected solutions and this was not penalized. This applied especially to container claim 1 and quite some marks were available if the process method claims did not contain the same container limitations. Nevertheless, providing separate independent claims not referring to each other was something that was not necessarily expected from the majority of candidates.
In this respect, it was remarked that it was very important that a candidate decided rather quickly on a set of claims and then focused on the arguments in respect of support in the application as originally filed, novelty and inventive step, and in this paper also on the Art. 52(2)(c) EPC objection, and the public prior use issue raised in a third party observation.
Although the last two issues were not particularly difficult to argue, these were new types of objections and the total number of issues was quite high to solve in the allotted time.
On the three independent claims, it was emphasized that the Examiner in his Communication did not raise objections under Art. 82 EPC (non-unity) or under R. 43(2) EPC (multiple independent claims). The candidates were thus expected not to come up themselves with solutions to hypothetical objections under these EPC provisions. According to the IPREE, candidates have to respond to all objections raised. It is simply not needed to argue against issues that were not raised by the Examiner. Dealing with these points was seen as a waste of time with no marks to gain.
Art. 123(2) EPC was seen as being clearly hinted at when the client mentions that "we performed further experiments".
The committee also commented that there was no indication of candidates losing points or making mistakes linked with the minor lack of marking-up in the client's amended claim 5 (only EN/DE versions).
In respect of claim 6, an objection was raised under Art. 52(2)(c) EPC. As said, this was a novum in paper B. In the end, it could easily be solved by including in said claim that the method was a computer implemented method. But also other ways to amend this claim could attract marks to a maximum of 4 marks. There was no clarity objection regarding this claim in the office communication, therefore extensive reformulation was not necessary. However, the candidates who did so were not penalized. It was also commented that CII aspects frequently show up in numerous technical fields. As this matter received relatively few points, it was not seen to be a major obstacle to candidates.
The public prior use was clearly insufficiently elaborated and for that reason did not affect any of the claims. While referring to the relevant issues coming from the Guidelines, up to 8 marks were available. It was commented that most candidates did well in this matter and none adapted the claims to circumvent this document.
As was the case with the previous single papers B, the points for the claims are coupled to the amendments of the set of claims as suggested by the client. However, this year somewhat more own creativity was expected in the sense that the possible amendments were not necessarily in line with the suggestions of the client. This was not seen as a departure from the syllabus and character of previous years.
In particular, the preferred solution did not cover the embodiment with a transparent cover to use in a dark environment. The client's letter indicates that the scope of the suggested claims was commercially important such that the water spraying device was an acceptable delimitation. The client's letter may also be interpreted as indicating that the commercial scope should not be substantially reduced any further. However, this was not the interpretation of the Examiners' Report.
What was however as in previous years, and in fact to even a higher degree, was that the client is the authority in terms of the commercial products to be protected and not an authority in patent law.
It was stressed that by not responding to all the points raised in the official communication, a number of candidates were losing some marks that were relatively easy to obtain. Again it was mentioned that candidates were neither expected to write a letter to the client nor, as almost always is the case, write a letter to the marker. In particular, amendments proposed by the client but which cannot be carried out do not require any explanation.
For the argumentation of inventive step of the independent claims, there was a total of 26 marks. 20 marks for the defence of container claim 1, 4 marks for method claim 5 and 2 marks for the computer implemented method claim. Shorter inventive step arguments were appropriate for claims 5 and 6. Even using 'mutatis mutandi' could attract marks if used in correct places of the problem-solution argumentation.
For the container claim, D1 was clearly the closest prior art; in case you would have started from D2 or D3, a high number of marks would be lost. Starting from D1, a discussion on inventive step was expected wherein the non-obviousness of the invention based on D1 per se, and in combination with both either D2 or D3 would follow.
As indicated above, the Examiners' Report is quite detailed and should be read attentively.
A final remark by one of the Committee members was that he wished to observe that he was disappointed by quite unacceptable and inappropriate language expressed by certain candidates in a number of blogs after the Exam. The audience sympathised with him on that point.
6. Paper C by Jelle Hoekstra
The examination of Paper C 2021 was different from previous years in that it was held online and that it was split in two parts. Thirty minutes extra were given as a compensation for the expected overhead caused by this. The patent to be opposed and the prior art was available for printing, with exception of the claims of the patent that were only available online in the exam platform.
Looking first at the exam as if it was not held online, it can be observed that the paper was longer than average and that the technical content was more mechanical than average (and including more drawings). This will have been challenging for some candidates.
Annex 1 relates to an underwater energy storage device as is also claimed by the independent claims 1 and 4. The description of Annex 1 on the other hand was limited to storing electric energy using an underwater hydroelectric energy storage device. Annex 2 makes clear that old subsea storage tanks for petroleum products can also be seen as storing energy underwater, although they cannot be used as hydroelectric power plants. Since all prior art can be seen as underwater energy storage devices, all prior art is potentially relevant for both independent claims.
Annex 1  makes clear that underwater hydroelectric energy storage devices store electric energy as potential energy by using an electric pump to pump water into a reservoir against the hydrostatic pressure. At a later moment, propelled by the hydrostatic pressure, the water passes through a turbine which drives a generator. This converts the potential energy back into electric energy. Dependent claims 3(1), 5(4) and 6(5) include such a pump, turbine and generator and should as such be seen as limiting the technical field to underwater hydroelectric energy storage devices.
Annex 5 did not lie in this narrower field and could not be used as closest prior art in an inventive step attack on these claims.
Annex 1 claimed two priorities. Claim 1 was entitled to the first priority date; claims 2-5 were entitled to the second priority date. Claim 6, depending on claim 1 was attacked under Art.123(2). For claim 6, depending on claim 5, the committee had designed a partial priority situation. The range of claim 6 split into two sub-ranges. One subrange was entitled to the second priority date; the other subrange only to the filing date. This situation is new in Paper C, following G 1/15. Since partial priority will be here to stay in Papers C and D, it is recommended that candidates master situations as described in claim 6.
Five pieces of prior art were provided. A3, A5 and A6 were straightforward Art.54(2) documents. A2 could be used under Art.54(2) for the filing date part of claim 6(5). For all other claims A2 was published too late to be directly useable but could be used as evidence of earlier prior use and the footnote in A2 represented common general knowledge. The earlier prior use in A2 could not be used in any attack since the visible part of the prior use did not disclose sufficient detail. This is unusual in paper C. The evidence of common general knowledge in A2 could be used. It is recommended that candidates familiarize themselves with using 'too late' documents as evidence and prior use. A2 used in this exam provides a good example.
A4 could be used under Art.54(3) for claim 1 and under Art.54(2) for the other claims. It was unusual that A4 was not novelty destroying for claim 1 and that the Art.54(3) aspect could not be used.
The following expected attacks on the claims were as such not unusual for Paper C:
- Claim 1: lack of novelty A3, combining two embodiments which was allowed based on a link between the embodiments.
- Claim 2(1): lack of inventive step - partial problems, using A3, A6, A4
- Claim 3(1): lack of novelty A3
- Claim 4 (independent): lack of novelty A5 in view of common general knowledge in the footnote of A2
- Claim 5(4): lack of inventive step using A4 and A5 (A5 was not closest, resulting in a swap)
- Claim 6(1): was added during examination and could be attacked under Art.123(2). The claimed range was shown in the description but not for the claimed embodiment.
- Claim 6(5): the first partial range lacked inventive step using A4 and A5, similar as for claim 5(4). The second partial range lacked inventive step using A2 and A6.
(Quite) some candidates did not agree with the intended attack on claim 4, arguing that A5 did not disclose 'buckling resistance'. Candidates performing an inventive step attack along the lines of claim 5 seem to have been awarded most/all marks for claim 4.
In summary, had Paper C 2021 been held onsite it would probably have been seen as a rather usual paper, albeit a bit long and a bit too mechanical.
In the online exam, the committee had the challenge to divide a paper into a two-part online exam, using a paper which was originally prepared for a single part, onsite exam. Quite some of the older C papers naturally split into two parts (independent claims targeted at different objects and the prior art more or less falling into two different groups). That was unfortunately not the case here - all independent claims relate to an underwater energy storage device and all prior art was possibly relevant.
A very creative argument was found by the committee for explaining why paragraph -, claims 4-6 and Fig.5 of Annex 1 were not supplied to the European patent attorney yet in part 1 ("Due to unforeseen circumstances the European Patent Register does not seem to be functioning properly this morning. I present you with the information we have available now and will give you the rest of the information when the European Patent Register is available again"). The full prior art was already given for part 1. In part 2, the full paper was supplied. Candidates had to fully analyse almost 39 pages twice. This has clearly been challenging. A2 and A5 were not used to attack claims 1-3 in the first part. Had claims 4-6 been available immediately, it would have been easier to conclude that A2 and A5 were indeed not relevant for part 1 but only for part 2. Alternatively, A2 and/or A5 could have been provided in part 2 only or the time allocation to the two parts could have been changed (adding the extra 30 min. to part 1 only). The splitting in C 2021 leaves room for improvement.
All in all, C 2021 was somewhat more challenging than previous papers, due to its length, the split and some unusual aspects such as the partial-priority situation, but most well-prepared candidates will have been able to recognize and type most of the attacks in the time available for each of the parts. Candidates no doubt appreciate being able to type the attacks and be able to copy parts from the exam paper.
7. Paper D by Roel van Woudenberg
Representing Examination Committee III: Tiem Reijns (chairman), Martin Noe, Olivier Kern (D1), Scott Roberts (D2)
General remarks (Tiem Reijns)
Tiem Reijns indicated that, apart from the technical difficulties, paper D was generally well-scored: candidates seemed (somewhat) better prepared, and the electronic syllabus was used widely.
This year's D paper had a record pass rate due to the neutralization (85,9% pass, 5,9% compensable fail). However, also already before neutralization the pass rate would have been good: about 50%. (Note that candidates obtained their real score, as well as the score including the neutralization. Unfortunately, no statistics were made available on the real scores, not on the effect of the neutralization). This high pass rate was not expected, but it may be due to the D2 being relatively straightforward and fair (as also some tutors indicated), and due to the forced time allocation (causing candidates to use more time on D1 and scoring better than the last few EQE's on D1; fewer candidates skipped entire D1 questions). Also, the D 2021 paper is designed for 5 hours, 30 minutes extra is available for answering since 2017, and an additional 30 minutes was available to compensate for restriction of the parts (limited freedom to allocated time across the complete paper, only within a part).
During the first 5 minutes of the first D1-part, D1.1 was only available in German. The D1-1 disruption was due to a human error. Many candidates panicked and exited from Wiseflow, requiring the invigilator password for continued use, resulting in a long queue. The Examination Board reacted quickly with a message that no candidates would be adversely affected. After extensive considerations, and after D11/19 emphasized level playing field, it was decided to neutralize D1-1. Other solutions were discarded, e.g., taking D1.1 out completely would have taken us out of the 40:60-60:40 D1:D2 ratio, and it would also have had disadvantages candidates who would have done well on D1.1.
The electronic syllabus was used widely. However, copying a legal provision or a part of the Guidelines into your answer (e.g., by copying it from the legal texts on the EPO website available via External Resources) is not considered an answer.
Only legal basis from the REE/IPREE is legal basis scoring marks. However, alternative legal basis is often accepted too, such as in some cases the Euro-PCT Guide.
Three versions of the Guidelines were allowed: November 2018 (legal text in force on 31.10.2019), November 2019 (legal text on 31.10.2020), and March 2021 (available in External Resources).
Candidates are requested to stick to the syllabus and to indicate in their answers which version they are using. Candidates using the latest version of the Guidelines had a slight advantage (see above), which is accepted as being a consequence of being flexible.
Copying the question into your answer is allowed, but scores no marks, neither does a timeline.
An advantage of copying the question into your editor may be that you can annotate in the editor, and that you can copy the sub-questions.
A tutor commented that it is much appreciated that limiting the knock-on effect of an early error has been a consistent design aspect in modern D2-papers (certainly as of 2013). It gives a lot of relief to candidates that run into a difficult issue early and are not confident on whether and how they solved it.
Answering and marking
The purpose of the Examiners' Report is to help future candidates prepare. The Examiners' Report shall be read as the correct factual answer for 100 marks. In some questions alternative answers attracted marks, but only the best answer is in the Examiners' Report. Some additional comments were awarded extra marks (sometimes referred to as bonus marks).
In principle, all information in a question is relevant. Candidates should answer the question, and should not speculate. Giving both a correct and a wrong answer to the choice of the marker, did not attract any marks.
Full legal basis is what is needed to support the answer in full: Article and/or Rule and/or Guidelines and/or case law, whatever is needed to support all aspects of the answer. Alternative legal basis often attracts (full) marks.
There are no negative marks in D1, nor in D2.
D1-part: summary of the paper
This year's D1 came in two parts of 90 minutes and 25 marks each. The DI had a well-balanced mixture of EPC and PCT questions, with common topics as well as some less familiar topics.
Candidates that were well-prepared, with a sound legal knowledge and familiar with their legal reference books and other material should have been able to score 50-60% or more out of the 50 marks within the time available.
Some topics were expected, such as divisionals and (restoring) pendency; languages and translations - here, in PCT; priority, in particular some form of partial priority - here, in the form of a partial first application issue G 1/15, T 282/12; restoration of priority - here, recognition by the EPO as dO of restoration done by the USPTO as rO under the unintentional criterion; fees - here refunds of search and examination fees. Some topics were not so familiar, e.g., a PCT application filed with the EPO in English but with the text in the figures in Portuguese, and amendments of a granted patent in view of a national prior right in Germany (requiring discussions on Art. 105a EPC as well as on Art. 123(2)&(3) EPC).
The online access to the Guidelines GL/EPO and GL/PCT-EPO was convenient and may have been of additional help. E.g., the GL/EPO have an extensive part on refunds in GL/EPO A-X, 10, including links to RFees 9 and OJ 2019, A4 with the refundable amounts in 10.2.1 on refunds of search fees. As a PCT example, using GL/PCT-EPO may have been a very efficient way to find the R.26.3ter PCT provisions in GL/PCT-EPO A-V, 8 "Text matter in drawings" together with a paper copy of the PCT Rules, that gave all information needed to answer. Some would have preferred hyperlinked pdf versions of the Guidelines rather than HTML pages, so that one could use them in the same way as during normal work, but the HTML version worked well too.
The legal texts in force on 31 October 2020 are the valid legal texts for EQE 2021 according to the REE/IPREE, but -in view of the cancellation of EQE 2020- exceptionally also the legal texts in force on 31 October 2019 ("the EQE 2020 syllabus") were accepted (Decision Supervisory Board 20 April 2020), with the marking "depending on which of the two dates would give the candidate the higher mark". The texts that were available online were neither of those two, but the actual texts on the date of the exam, 2 March 2021; answers based on these texts were also accepted. Note that there were some differences which allowed to answer more efficiently when using the online editions: e.g., in the 2021-edition of the GL/EPO the effect of failing to meet the filing requirements for divisionals was made explicit and could have been of help for answering Q.1; the 2021-edition of the GL/PCT-EPO was extended with A-VI, 1 "Claim to priority", including A-VI, 1.5 "Restoration of the right of priority" which could have been of help for answering Q.2.
The first D1 part, D1.1, consisted of questions 1 (9 marks), 2 (8 marks) and 6 (8 marks), i.e., 25 marks, for which 90 minutes were available (minus or plus time due to the D1.1-issue, see above), followed by a break.
In Q.1, an EP application had been filed with inventions X and Y, of which only X was searched. The question tested the legal consequences of filing a divisional in a wrong language, and the steps required to have the non-searched invention Y searched while the original EP application was no longer pending.
Q.2 related to restoration of priority right upon entry into the EP phase. It tested the (non-)recognition of successful restoration of priority by the USPTO as rO in the EP phase as well as the steps to get to a successful restoration after entry into the EP phase.
Q.6 asked about the procedural steps to limit claims for a single EPC state in view of a national prior right while maintaining the claims unamended for the other EPC states, as well as the allowability of a proposed amendment. The latter required identifying issues under Art. 123(3) EPC.
The second D1 part, D1.2, consisted of questions 3 (7 marks), 4 (8 marks) and 5 (10 marks), i.e., also 25 marks, for which again 90 minutes were available.
Q.3 asked whether the search and/or examination fees could be refunded, at which rate, and what you would have to do to obtain the refunds. Two situations were tested. In the first situation, no claims were filed with the EP application, and the candidate had to recognize that the search would not start if no claims would be filed. In the second situation, the invitation under Rule 70(2) EPC was waived, such that the search report was issued with a first communication under Art. 94(3) EPC.
Q.4 addressed a priority situation wherein EP-D1 claims priority from an identical US-D directed to bolts made of metal, while an even earlier EP-D0 from the same applicant directed to a bolt made of aluminium was cited in the search report of EP-D1. The answer required a careful discussion of the first application in the meaning of Art. 87(1) EPC and partial priority (G 1/15, or more specifically, T 282/12: partial first application). It also tested the use of a disclaimer to restore novelty over EP-D1, which was a Art.54(3) prior right.
In Q.5, candidates had to discuss two scenarios wherein a PCT application was filed with the EPO, indicating the EPO as ISA, and candidates had to indicate what the effect of the language was on the competent rO and on possible further translations. In Q.5-(1)&(2), the PCT application was completely filed in Portuguese. In Q.5-(3)&4), the PCT application was filed in Portuguese with the drawings in English. So, candidates had to address which languages the EPO as rO accepts (Rule 157(2) EPC), and what happens if the language is wrong (Rule 19.4 PCT); which languages the EPO as ISA accepts (EPO-WIPO Agreement), and what the effect is if the text of the drawings is in a different language than the language of the description and the claims (Rule 26.3ter(a) PCT).
The full answers to the questions are given in the Examiners' Report. It also indicated, as every year, important guidance for answering (e.g., "Candidates are reminded that they should pay attention to the way the questions are asked") - most of these points were also emphasized at the meeting (see above under "General remarks" and "Answering and marking").
D2-part: summary of the paper
The 50-mark, 3-hour D2 was of lower complexity than the D2s of the previous years and relatively straightforward. The paper presented all inventions and applications in a clear and concise way (and largely chronologically), including abbreviations for the various claims features and including effects of all features to support inventive step. The questions were very explicit and were, as in most recent years, a clear agenda as to what to address.
Well-prepared candidates, that did not only give their conclusions but gave a complete reasoning without any implicit steps, should have been able to address most of the expected aspects (but will also have missed some aspects or some detail) and to score 50-60% or more out of the 50 marks within the 3 hours available.
Some key aspects were a complex patent situation with invalid priority due to a first application issue (W-JP - W-IT - W-EP), insufficiency of disclosure / lack of enablement (B, S+Y+B), and amendments during opposition (Art.123(2)/Art.83 - Art.123(3) trap w.r.t. B; as well as Art.123(3) w.r.t. the amendment to S+Y+A), a competitor being commercially successful already with products under the scope of a (potential) claim of a currently dead application, missed EP entry of HP-PCT and remedy, (no) Art.54(3) effect of HP-PCT application (yet), whether/how opposition against W-EP would be partially or fully successful, and, in particular, admissibility of new arguments and evidence in opposition proceedings.
There were not too many events in the timeline - for most candidates the most essential tool when doing a D2 case - such that the risk of losing a lot of time due to a redrawing of the timeline was small.
Compared to earlier D2-papers of 60 marks, the length and difficulty of this D2 matched well to 50 marks. The situation as-is is quite standard, as are the improvements and the FTO questions, but with few tricky bits. Funny subject-matter and nice names, hopefully makes candidates smile during a stressy exam!
Comments from Committee
The Committee commented on the questions submitted prior to the meeting and addressing various specific items in D1 and D2 questions.
Questions in the D1 part
Oliver Kern and Tiem Reijns commented on the questions submitted w.r.t the D1-part.
In Q.1, the legal basis for EP-A2 not being treated as a divisional cited in the Examiners' Report was J 13/14, but Art.90(2) EPC was also accepted (same marks). Art.121(3) EPC was indicated as justification as to why the parent was revived (pending restored).
W.r.t. Q.6: the legal basis for limitation for a single state only can be found in the Guidelines. Note that 2018/2019 version of the GL may have left room for some doubt, as it stipulates that the substantive requirements for limitation had to be met for all claim sets: if interpreting this as all including the set for the other states, one would conclude that the other, non-limited claim set does not meet these requirements (as it is not a limitation vis-as-vis the claims as granted for the other states, R .95(2) EPC). However, that possible misunderstanding is taken away in the 2021 edition, where the underlined words have been added in D-X, 10.1:
"The limitation could result in the claims becoming different in different contracting states if the requester wishes to restrict the claims with respect to one or more, but not all, contracting states in order to avoid conflict with national prior rights. Such different sets of claims can be allowed, provided that the substantive requirements are met for all sets for which the requester is seeking an amendment."
It was not required to propose an alternative, allowable amendment (even though the candidate's solution did) when answering Q.6: the question only asked whether the proposed amendment was allowable, not whether another amendment would be possible. It was also not considered to be an implicit aspect of the question, which a tutor had considered in view of the word "advise" just before the explicit questions.
In Q.4, both G 1/15 as well as T 282/12 (which is exactly to this situation) were accepted as legal basis for the partial priority due to a partial first application issue. In Q.4, it was expected to not only conclude on prior art status (Art.54(2) or (3) EPC), but also on the effect thereof (novelty yes/no).
W.r.t. Q.5, it was commented that Euro-PCT Guide (2020) 2.23.001 only covers the situation where the whole PCT application is in a single language. To answer Q.5, GL/PCT-EPO and/or R.26.3ter itself were needed.
Questions and comments w.r.t. the D2 part
Scott Roberts, the main drafter of the D2-part, commented on the paper and on the questions submitted w.r.t the D2-part.
Scott indicated that feedback from the tutors was taken into account when drafting this paper: some humour, simple abbreviations of the subject-matter (single-character abbreviations for each feature), and reducing perpetual incorrectness. He indicated that it is a design feature of the D2 to reduce perpetual incorrectness and an important consideration in the design. High-level topics are generally independent, can be recognized by candidates separately and can be solved independently. It was suggested that future papers would also include simple abbreviations of their subject-matter in the paper.
A tutor commented that the paper does not indicate since when we manufacture SPRINGY (S) (see ): this appears not to have impact, but it could have been important if a candidate considered that priority EP from W-IT for S in W- was valid. The Committee indicated that the first disclosure of Springy feature S was not given as it may have a risk in that it may have effect in underlying design, as it could deemphasize the important parts of the case (priority of W-EP claim 1). If backup is too recognizable, the need for the real question may become too limited.
A tutor suggested that there may be more marks for FTO, as this year only few marks. The Committee commented that the conclusions follow from other analysis, which was more than half of the marks, so that the number of marks reflects the nature of the conclusions. Even though it was suggested that it be considered to deduce marks if candidates conclude wrongly on rights conferred (esp. when concluding wrongly that a patent provides a positive right to make/sell/use), the D committee indicated that they do not want to do a negative marking for any type of errors.
8. Pre-Exam by Nico Cordes and Roel van Woudenberg
Representing Examination Committee IV: Stefan Kastel (epi)
The Pre-Exam 2021 was split into 4 parts (2 legal, 2 claims), each designed for 60 minutes and with 10 minutes extra time for each part to accommodate for the limitations caused by the split into parts was appreciated, in particular the reduced freedom to allocate time across the various questions. The split into parts was generally appreciated, as it allowed to limit the duration behind the screen and allowed to take a drink or leave the exam position for other reasons during scheduled breaks.
Each of part 1 and part 2 comprised 5 legal questions, in randomized order within a part, and with the four statements of each question being presented in a randomized order. As in 2019, the claims analysis part consisted of 2 cases, each having 5 questions in part 3 resp. part 4. In the claims part, the questions were in the same order for all candidates, but the four statements of each question were presented in a randomized order.
All questions, statements, prior art documents and claim sets were provided in all 3 languages. This resulted in quite some scrolling, especially in the claims parts, where a single webpage showed the claim set in all 3 languages, the case statement of the question in all 3 languages, and then 4 tri-lingual statements with a True/False tick boxes. (Note: for Pre-Exam 2022, adaptations to the layout and some degree of language selection are being implemented.)
Within a part, candidates were free to take the questions in any order. After finalizing a part, it was no longer possible to go back to that part to make any changes.
At the Tutor Meeting, it was indicated that all information that was brought to the attention of the Committee and the Examination Board, as well as posts and comments on blogs, were carefully considered to see whether any neutralization were required. However, apart from a complete neutralization of Q.10 (herein, the numbering follows that as presented in the Compendium-version of the paper) due to a drafting error, no individual statements were neutralized. Some appeals are still pending, but no comments could be made at the time of the meeting.
The legal part of this year's Pre-Exam had similar style and a difficulty level as in 2019, and a bit more difficult than those of 2016, 2017 and 2018. As in the last few years, the legal questions were a mix of questions addressing several topics that were to be expected (such as time limits, fees, filing date requirements, languages, EP entry) as well as some less-usual topics which well-prepared candidates would have been able to find in their EPC/ reference materials/ Guidelines (lack of enablement, who can speak at oral proceedings, auxiliary requests, appeal). Some usual topics, such as divisionals and EP-entry, were back as expected. The most recent G-decisions, notably partial priority (G 1/15 and G 1/16), were not yet tested in this Pre-Exam, while G 1/15 was already tested in the D2-part of the D paper of 2019 and also in this year's D1-part of the D paper.
Well-prepared candidates having good knowledge of the EPC and PCT and knowing their material well (reference books, EPO Guidelines, PCT Applicants' Guide, Euro-PCT Guide) for fast look-up should have been able to answer most of the statements correctly and well within the time available, provided they had their material updated to the legal status of 31 October 2020 (the cut-off date for Pre-Exam 2021). The EPO Guidelines in particular play a key role to get to the right answers. Candidates with a poor preparation will have found those questions considerably more difficult than the questions from earlier years.
Q.1 tested renewal fees for a EP application and for its divisional, and was relatively straightforward. The question required also careful reading, as it asked whether the fee can be validly paid on a certain day, and did not -as is more usual- ask for the last possible date (although it appeared to be the last day).
In Q.2, various aspects of priority under PCT were asked, as well as to whom to pay the international filing fee.
Q.3 tested aspects of a divisional: pendency, language, generation fee, prior art effects between parent and divisional.
Q.4 tested miscellaneous aspects of a PCT application in the international phase and the EP phase, including the requirements for a PCT application to become Art.54(3) prior art.
Q.5 asked about filing an opposition, an intervention, or third party observations and party status.
Q.6 was possibly one of the most difficult questions, addressing Art.83 objections. The answer to statement 6.3, which asked whether essential technical information that is present in the abstract can be incorporated into EP-X as missing parts within one month from the date of filing, led to discussions amongst candidates on the blogs. The Examiners' Report considered this not to be possible as the abstract is not part of the disclosure (Art. 85 EPC), so that this incorporation would offend Art. 123(2) EPC. However, some candidates argued that the available technical information could still be submitted as a missing part under R.56 EPC, where the abstract would just serve the purpose to indicate that the applicant had such the information available, and in view of R.56 providing for a 2-month time limit (i.e., not as the basis for amendments in the application as filed), where the presence of the "one month" in the statement seemed to indicate that a provision with a time aspect in it had to be considered. However, the statement was not neutralized.
Q.7 checked fresh opposition grounds in opposition appeal, requiring G 10/91 and, for an intervenor joining during the appeal stage, G 1/94. Candidates may have found it difficult to answer Q.7 as the situation was not about first instance opposition, i.e., well covered by the Guidelines, but about appeal, i.e., not covered by the Guidelines, and needed Decisions of the Enlarged Board for answering.
Q.8 presented various persons and asked whether they could speak or make submissions during oral proceedings.
In Q.9 the use of different languages by the representative or the EPO during oral proceedings was checked.
Q.10 was probably the most difficult question, but it was neutralized due to an edit error when the question was amended after the review (Q.10 mistakenly refers to applicant B and applicant A while it was intended to refer to only one applicant B, different from applicant A in Q.4). It addressed non-unity in the international phase: protest, EP entry with non-unity, refund of (additional) search fee in the EP phase, and (100%) refund of the search fee is a divisional is filed.
Claims analysis part
The claims analysis part of the Pre-Exam 2021 had a similar style as in 2019, in that the claims analysis part was structured into two parts which were in the 2021 exam separately identified as part 3 and 4 (with parts 1 and 2 being the legal parts). Parts 3 and 4 each concerned a separate case with their own set of questions, rather than one case of ten questions as in all pre-2019 exams.
Part 3 concerned a European patent application for a glass composition for use as a photochromic lens. As opposed to earlier pre-exams, this part did not explicitly identify a limited number of embodiments (e.g., a 'first' embodiment, a 'second' embodiment) but rather described a wide range of different compositions (e.g., with different compounds, different weights, optional aspects, etc.) as well as several distinct categories of invention (e.g., a composition, a manufacturing process, a photochromic lens).
The European patent application was accompanied by three prior art documents D1-D3. Interestingly, the prior art status of D1-D3 was not explicitly identified, but instead the filing date of the European patent application and the filing and publication dates of the prior art were given, from which one could determine that D1 and D2 were Art. 54(2) EPC documents and that D3 appeared to be an Art. 54(3) EPC document. The Art. 54(3) status of D3 was later questioned in two statements on inventive step (statements 15.1 & 15.4). This was the first appearance of an Art.54(3) prior art in the claims analysis part of the Pre-Exams.
For questions 11-13, a first claim set of nine claims was provided, which included six claims for the composition, two process claims and a product-by-process claim. The statements covered a wide range of topics including the scope of protection of a product defined by its intended use, numerical ranges, the scope of protection of a product-by-process claim, essential features, clarity, and novelty. The answer to statement 12.4, which questioned the clarity of a claim containing the terms 'low' and 'high', was widely discussed online amongst candidates. The claim was considered to be clear by the Examiner's report as both relative terms were considered to be clear in the context of the whole disclosure of the application. Some candidates, however, remarked online that while 'high' was defined in the application, the term 'low' was not defined in the application. The statement was ultimately not neutralized. For question 14, a second claim set of five claims was provided which represented amendments filed during examination, with the following statements questioning the allowability of amendments under Art. 123(2). For statement 15, a third claim set of 3 claims was provided, with the following statements questioning inventive step. The answers to statements 15.1 and 15.2 were challenged in the blogs. The claims define claims defines "A glass composition for use as [a photochromic lens comprising ...]" and these statements indicated the phrase "technical field, i.e. the field of photochromic lenses". One could argue that the technical field of the claim is not the lens (product) but the composition (material), which view one could consider confirmed by claim I-8 (defines "A process for manufacturing a photochromic lens from the glass composition"). The Examiners' Report did not acknowledge this interpretation, but took the claims to be in the technical field of photochromic lenses; the two statements were not neutralized.
Part 4 concerned a European patent application for a protection device for a tablet computer. The description described two different embodiments: a first embodiment and an alternative second embodiment.
The European patent application was accompanied by two prior art documents D1-D2, of which the prior art status was explicitly identified as being Art. 54(2) EPC prior art. Interestingly, D1 seemed far removed from the invention as it described a shipping box. However, the shipping box did appear to have at least some features in common with the protection device, and also seems to be suitable to 'protect' a tablet computer. This 'suitability' was then later questioned in statements on novelty over D1.
For questions 16 to 19, a claim set of seven claims was provided, which each defined different embodiments of the protection device. The statements covered a wide range of topics including clarity, scope of protection, novelty over D1 (being the shipping box prior art) and D2, and basis for amending claim 1 of the claim set. The answer to statement 18.1, which questioned the novelty of a particular claim over D2, was widely discussed online amongst candidates as there seemingly was an inconsistency between a prior art embodiment as described in D2's text (in which a part of the device was divided into 3 sections) and as shown in D2's figure (which showed the part being divided into 4 sections); depending on whether one considered the part of D2's embodiment to be divided into 3 or 4 sections, the answer to the statement would differ. The Examiners' Report did not acknowledge this discrepancy; the statement was not neutralized. The answer to statement 19.4, which questioned the basis for a particular amendment of claim 1, was also widely discussed online amongst candidates, with some candidates arguing that the amendment represents an unallowable intermediate generalization with respect to the description as some features, which were present in the embodiment serving as basis in the description, were omitted/not included in the claim. The Examiners' Report argued that the omitted features were part of all embodiments and thus could be omitted from the claim. The statement was ultimately not neutralized. For question 20, a single claim was provided, with the following statements questioning the inventive step of the claim.
During the tutor meeting itself, the Examination Board stated that they received questions and suggestions on the neutralization of select statements, and that they reviewed the statements but did not see a reason to neutralize the statements.
Comments and questions
In response to a question from a tutor, Stefan Kastel indicated what the Committee and Examination Board consider when deciding on a possible neutralization of a statement or question: statistics, blog posts and comments may indicate possible problems and committee discussion. The Committee provides their intended solution as a recommendation to the Examination Board. The Examination Board decides on the matter.
Stefan indicated that tutors and candidates can help by posting comments and considerations in the blogs.
Q.10 in the current Pre-Exam was fully neutralized due to a drafting error in the paper, or rather due to an error in amending the question after feedback from the review rounds. The design and review of the paper comprises a first test by the Committee members. Then, a second test is done with the guinea pig group, composed of members from other Committees. Also, EC V (the Quality Committee) checks the paper. Despite that, the error in Q.10 was unfortunately not spotted as late-stage amendments do not go through all the review steps again.
Stefan indicated that the current exam is essentially an exam designed to be done on paper, which was reformatted into the online version. The same will apply to the 2022 Pre-Exam. On the longer term, the Pre-Exam may benefit from Wiseflow or another online exam system as it can also allow to, e.g., ask for dates rather than just True/False.
A tutor noted that the tri-lingual presentation in Wiseflow required a lot of scrolling, and requested to split the languages for Pre-Exam 2022 and later. Stefan commented that tests are ongoing to split it, and this will also be done in the Mock, while there is also still some work needed.
No detailed statistics were shared as to scores per question, or per part. It was indicated that no such statistics are available as the Secretariat had other priorities in view of all the changes this year.
The relatively high pass rate cannot be attributed to a high score on the legal parts or a high score on the claims analysis parts: there is no clear relation, and the scores for the parts are higher than previous scores.
A tutor commented that randomizing the sequence of statements within a single question in the legal part and in the claims part, as well as of questions in the legal parts, has the risk that it may provide an equal level playing field, due to some sequences being more difficult than others. The Committee indicated that randomization is done to make cheating more difficult, and that the intention is to draft new questions such that there is no problem if the order of the statements is changed.
Q.19 comprised 4 alternative amendments to claim IV.1. Each statement read "Under Article 123(2) EPC, there is basis for amending claim IV.1 of the originally filed application as follows: [...]". The question and the statements were silent about how the dependent claims were amended. A tutor asked whether the effect of the amendment to the complete claim set had to be considered when answering the statements, as amending claim IV.1 as suggested could strictly speaking also lead to (possibly) non-allowable subject-matter in the resulting claim dependencies - see GL (2021) H-V, 3. Stefan indicated that the question only asked about the claim itself, and not about the effect in the dependencies. He also indicated that it could be expected that the full claim set with amendments indicated would be given if it would have to be considered.
9. Concluding remarks
The annual meeting of EQE tutors and members of the EQE Committees took place on 19 and 20 October 2021 by videoconference. The EQE 2021 papers were discussed in detail. The questions submitted prior to the meeting were addressed by the Committees when discussing the papers, and several other questions were asked during the meeting.
With this report, tutors summarize the papers, including their online format, and provide information of the points discussed at the meeting so that candidates can also find this information. In addition, we hope that our summaries and comments can assist when reading and interpreting the official Examiners' Reports of the EQE 2021 papers.