The "Information on the schedule for the EQE 2024 examination papers" (dated 27 July 2023) is now available on the EQE website. 

The EQE 2024 will take place online using the examination software Wiseflow, with substantially the same setup as the e-EQE/Online EQE of 2021, 2022 and 2023.

The pre-examination is again split into four parts of 70 minutes, each part having 5 questions (4 statement per question). Each part must be completed before the start of the next break, with the next set of questions only becoming available after the break. Once the time allowed for a part has elapsed, it will not be possible to go back to that part. The pre-examination lasts four hours and forty minutes.

No documents will be available for printing in the legal parts,

Candidates will be allowed to print the description of the invention as well as the prior-art documents for the claim analysis parts before the start of the appropriate part. The documents allowed for printing will be made available during the break preceding the relevant claim analysis part.

No calendars will be provided (see here).

Further, in view of the amendments to Rule 126(2)/127(2)/131(2) EPC per 1 November 2023 (1 day after the legal cutoff date acc IPREE, i.e., 31 October 2023), refer to: this blog post

(Note that that the document may be subject to minor changes as testing continues. Please check the EQE website for updates. E.g., for EQE 2023, an updated version of the document was published in December.)

Please feel invited to post your comments. You are allowed to post anonymously and do not need an account, but please give your name or a nickname for an easy and inter-human interaction.

The results for Pre-Exam 2023 came out yesterday afternoon, 10 May, finally, in MyEQE.

Congratulations to all that passed!

The Examiner's Report for Pre-Exam 2023 was published "already earlier" this Monday, 8 May (here).

Surprisingly only two statements were neutralized: 5.3 (needed a 2024 calendar) and 16.3 (in our version 16.1).

Statement 14.4 in part 3, for which we gave arguments for T (official answer) as well as for F, was not neutralized.

The statements in part 4 relying on the interpretation of "water-based solvent" being "just water" (and hence direct and unambiguous disclosures of %w/w of water) or "a solvent having a base of / based on water also including something more" (and hence no such direct and unambiguous disclosure og “water only”) were not neutralized - see 17.4, 18.3 and 20.1.

Please feel invited to post your comments (using your name or a nick name, not anonymously) to the respective parts of our Pre-Exam 2023 blogs:

• http://pre-exam.blogspot.com/2023/03/pre-exam-2023-first-impressions.html 
• http://pre-exam.blogspot.com/2023/03/pre-exam-2023-our-answers-to-legal.html 
• http://pre-exam.blogspot.com/2023/03/pre-exam-2023-part-3-cleaning-utensils.html
• http://pre-exam.blogspot.com/2023/03/pre-exam-2023-part-4-erasable-inks-our.html

Statistics have not yet been made available but the EQE secretariat – they are usually published together with the statistics for the main exam papers.

Update 11 July 2023: We were just informed by another tutor that the Examiner's Report for the Pre-Exam on the EQE website has been replaced by a new one (without that being easily spotted as its carries no date or version number, as as there was no mention on the website that it was updated). The original one had errors with dates in one of the legal questions, and was in English only. The new one is in all three languages. 

Update 24 May 2023:

“Subject: EQE 2023 Pre-examination - Communication from the Examination Board

Dear candidate,

We would like to inform you that after the release of the pre-examination results on 10 May 2023, we have encountered some discrepancies between the results communicated and what was to be expected in view of the Examiners’ Report. Upon conducting a thorough investigation, we have successfully identified the source of the issue, which is of a technical nature. Please be informed that the problem has been solved.

As a consequence, the results have been recalculated and must be re-issued. Therefore, the decision of the Examination Board concerning your result of the pre-examination 2023 communicated to you on 10 May 2023 is hereby revoked. A new decision based on the correct result is now available in myEQE.

Best regards / Mit freundlichen Grüßen / Sincères salutations

The Examination Secretariat
on behalf of the Examination Board”

The Supervisory Board of the EQE issued a decision on "Notification and time limit calculation" dated 26 June 2023:

"Candidates sitting the EQE 2024 (pre-examination and main examination) can use as legal basis Rules 126, 127 and 131 EPC as in force on 31 October 2023 or Rules 126, 127 and 131 EPC as in force on 1 November 2023."

So, when calculating time limits that run from the (fictitious) date of notification of a document, you are free to use:

• either the current "10-day rule" for deemed notification (or true date of receipt if received later) according to current Rule 126(2)/127(2) (as in force until 31/10/2023) 
  
  
• or the new PCT-like version (as in force from 1/11/2023) with deemed notification on date of dispatch/date of the document and a compensation for receipt later than 7 days (OJ 2022, A101, article 1(10)-(12); OJ 2022, A114, section IV; and OJ 2023, A29; also Guidelines E-II, 2.3 and 2.4).

This implies that the correct (True or False) answer will not depend on the version of the Rule used when the Pre-Exam answers.

Our Q&A book "Basic Legal Questions for Pre-Exam and Paper D" gives time limit calculations for both versions of R.126(2)/127(2) for all questions involving time limits calculated from he notification of a document.

Where notification is effected in accordance with paragraph 1, the letter shall be deemed to be delivered to the addressee on the tenth day following its handover to the postal service provider, unless it has failed to reach the addressee or has reached him at a later date; in the event of any dispute, it shall be incumbent on the European Patent Office to establish that the letter has reached its destination or to establish the date on which the letter was delivered to the addressee, as the case may be.

Where notification is effected by means of electronic communication, the electronic document shall be deemed to be delivered to the addressee on the tenth day following its transmission, unless it has failed to reach its destination or has reached its destination at a later date; in the event of any dispute, it shall be incumbent on the European Patent Office to establish that the electronic document has reached its destination or to establish the date on which it reached its destination, as the case may be. 

Computation shall start on the day following the day on which the relevant event occurred, the event being either a procedural step or the expiry of another period. Where the procedural step is a notification, the relevant event shall be the receipt of the document notified, unless otherwise provided. 

(2) Where notification is effected in accordance with paragraph 1, the document shall be deemed to be delivered to the addressee on the date it bears, unless it has failed to reach the addressee. In the event of any dispute concerning the delivery of the document, it shall be incumbent on the European Patent Office to establish that the document has reached its destination and to establish the date on which the document was delivered to the addressee. If the European Patent Office establishes that the document was delivered to the addressee more than seven days after the date it bears, a period for which the deemed receipt of that document is the relevant event under Rule 131, paragraph 2, shall expire later by the number of days by which the seven days were exceeded.

(2) Where notification is effected by means of electronic communication, the electronic document shall be deemed to be delivered to the addressee on the date it bears, unless it has failed to reach its destination. In the event of any dispute concerning the delivery of the electronic document, it shall be incumbent on the European Patent Office to establish that the document has reached its destination and to establish the date on which it reached its destination. If the European Patent Office establishes that the electronic document has reached its destination more than seven days after the date it bears, a period for which the deemed receipt of that document is the relevant event under Rule 131, paragraph 2, shall expire later by the number of days by which the seven days were exceeded.

(2) Computation shall start on the day following the day on which the relevant event occurred, the event being either a procedural step or the expiry of another period. Where the procedural step is a notification, the relevant event shall be the deemed receipt of the document notified, unless otherwise provided.

Where a period starts on the day of the date of a document or letter emanating from a national Office or intergovernmental organization, any interested party may prove that the said document or letter was mailed on a day later than the date it bears, in which case the date of actual mailing shall, for the purposes of computing the period, be considered to be the date on which the period starts. Irrespective of the date on which such a document or letter was mailed, if the applicant offers to the national Office or intergovernmental organization evidence which satisfies the national Office or intergovernmental organization that the document or letter was received more than seven days after the date it bears, the national Office or intergovernmental organization shall treat the period starting from the date of the document or letter as expiring later by an additional number of days which is equal to the number of days which the document or letter was received later than seven days after the date it bears.

If you plan to sit the Pre-Exam 2024, be aware that enrolment has opened on 1 February 2023 and that the enrolment deadline is 15 May 2023.

Note that for a first time enrolment to the pre-examination candidates must already have registered (deadline for registration was 15 January 2023 - see the EQE registration webpage and our earlier blog post). Candidates who have previously been admitted to the pre-examination are already registered.

Please refer to the EQE enrolment webpage and the document "Enrolment process and fees for the EQE 2024" dd 27 January 2023 for details.

DeltaPatents Course Offer

Please refer to our webpage for our course offer for Pre-Exam 2024: here. In particular:

• Pre-Exam Integrated course (13 x full-day classroom session): see here.
• Pre-Exam Distance Learning (13 x 1,5-2 hour online sessions): see here

“This invention provides erasable inks that provide good writing performance when used in writing instruments such as pens. The erasable inks are water-based inks that have a short "waiting time", i.e. inks that can be erased soon after they are applied on a surface made, for instance, of paper. Because the water-based inks are based on using water as a solvent rather than on using other solvents, the erasable inks of the invention are relatively non-toxic and odour-free.” [002] of the description of the client’s application)

Our answers to this second claims analysis part are given below. We have numbered the questions and statements for easy reference in the discussion.

During the exam, candidates had access to the EPO Legal Text pages, so including the Guidelines. Access was to the live versions, so to the versions in force on 17 March 2023 (so not the version of 31.10.2022 acc REE/IPEE).

Candidates could access the exam in all languages, English, French and German.

In the claims analysis parts (as in the legal parts), the order of the four statements of each of the questions was randomized, i.e., it was different for different candidates. 

In view of the randomized order, we provide the questions and statements together with our answers. If you check your answers with ours, note that the order of the questions and of the four statements from a single question may be different!!!

Please feel invited to comment!

The exam had a mix of common and less-common claims analysis topics. Part 4 was very very chemical with many function-defines agent and resins, many chemical names and formulas, ranges and an example in a table. It seemed that the paper lacked some definitions to also allow the non-chemist to understand it all in full, e.g., as to how much water is contained in a water-based solvent system, and whether an ester-based solvent system also includes water.

Please do not post your comments anonymously - it is allowed, but it makes responding more difficult and rather clumsy ("Dear Mr/Mrs/Ms Anonymous of 18-03-2022 18:03"), whereas using your real name or a nickname is more personal, more interesting and makes a more attractive conversation. You do not need to log in or make an account - it is OK to just put your (nick) name at the end of your post.

Note: the other claims part is discussed in another blog post: here; the legal part is discussed in another blog post: here; first impressions and general comments can be posted here.

Nico & Roel

Question 16

Claims as filed with the description on 16.08.2019

I.1. An erasable ink composition comprising:
(a) water;
(b) a colouring agent; and
(c) a releasing agent.

I.2. An erasable ink composition comprising:
(a) water;
(b) a colouring agent;
(c) a releasing agent; and
(d) a film-forming polymeric binder.

I.3. An erasable ink composition according to claim I.2, wherein the water is present in an amount ranging from about 40% to about 90% w/w.

I.4. An erasable ink composition according to claim I.2, wherein the colouring agent is present in an amount ranging from about 0.5% to about 30% w/w.

I.5. An erasable ink composition according to claim I.2, wherein the releasing agent includes a modified siloxane and is present in an amount ranging from about 0.3% to about 30% w/w.

I.6. An erasable ink composition according to claim I.2, wherein the polymeric binder is present in an amount ranging from about 1% to about 15% w/w and comprises a polyvinyl butyral resin.

I.7. An erasable ink composition according to claim I.2, wherein said erasable ink has an erasability of greater than 95% when erased within five minutes of applying the ink to the sheet of paper.

I.8. A pen comprising an outer body, a writing tip at one end of said body, a reservoir included within said body and connected to said writing tip, and within said reservoir a waterbased erasable ink composition comprising:
(a) water;
(b) a colouring agent in an amount of 1.5% to about 30% w/w;
(c) a releasing agent having a water solubility ranging from about 0.5% to about 70% of the erasable ink composition; and
(d) a film-forming polymeric binder.

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

Question 17

After receipt of the search report from the EPO, the applicant envisages to replace claims I.1. and I.8. respectively as follow:

I.1. An erasable ink composition comprising:
(a) water;
(b) a colouring agent; and
(c) a releasing agent.

I.1bis. An erasable ink composition comprising:
(a) water;
(b) a colouring agent; and
(c) a film-forming polymeric binder.

I.8 . A pen comprising an outer body, a writing tip at one end of said body, a reservoir included within said body and connected to said writing tip, and within said reservoir a waterbased erasable ink composition comprising:
(a) water;
(b) a colouring agent in an amount of 1.5% to about 30% w/w;
(c) a releasing agent having a water solubility ranging from about 0.5% to about 70% of the erasable ink composition; and
(d) a film-forming polymeric binder.

I.8bis. A pen comprising an outer body, a writing tip at one end of said body, a reservoir included within said body and connected to said writing tip, and within said reservoir a waterbased erasable ink composition comprising:
(a) water in an amount ranging from about 40% to about 90% w/w;
(b) a colouring agent in an amount of 1.5% to about 30% w/w;
(c) a releasing agent having a water solubility ranging from about 0.5% to about 70%; and
(d) a film-forming polymeric binder.

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

Question 18

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

Question 19

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

Question 20

Consider that the following new set of claims (II.1 to II.3) was filed by the applicant during the examination proceedings to expedite prosecution and the patent was granted five months ago with the following set of claims:

II.1. An erasable ink composition comprising:
(a) from about 40% to about 90% w/w of water;
(b) from about 1.5% to about 30% w/w of a colouring agent;
(c) from about 0.3% to about 30% w/w of a releasing agent; and preferably
(d) from about 1% to about 15% w/w of a film-forming polymeric binder.

II.2. An erasable ink composition comprising:
(a) from about 40% to about 90% w/w of water;
(b) from about 1.5% to about 30% w/w of a colouring agent;
(c) from about 0.3% to about 30% w/w of a modified siloxane releasing agent.

II.3. An erasable ink composition, wherein said erasable ink has an erasability of greater than 95% when erased within five minutes of applying the ink to the sheet of paper.

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

 We look forward to your comment! (Please use your name or a nickname)

(c) DeltaPatents

(No drawings with D2)

Our answers to this first claims analysis part are given below. We have numbered the questions and statements for easy reference in the discussion.

During the exam, candidates had access to the EPO Legal Text pages, so including the Guidelines. Access was to the live versions, so to the versions in force on 17 March 2023 (so not the version of 31.10.2022 acc REE/IPEE).

Candidates could access the exam in all languages, English, French and German.

In the claims analysis parts (as in the legal parts), the order of the four statements of each of the questions was randomized, i.e., it was different for different candidates. 

In view of the randomized order, we provide the questions and statements together with our answers. If you check your answers with ours, note that the order of the questions and of the four statements from a single question may be different!!!

Please feel invited to comment!

The exam had a mix of common and less-common claims analysis topics.

Please do not post your comments anonymously - it is allowed, but it makes responding more difficult and rather clumsy ("Dear Mr/Mrs/Ms Anonymous of 18-03-2022 18:03"), whereas using your real name or a nickname is more personal, more interesting and makes a more attractive conversation. You do not need to log in or make an account - it is OK to just put your (nick) name at the end of your post.

Note: the other claims part is discussed in another blog post: here; the legal part is discussed in another blog post: here; first impressions and general comments can be posted here.

We look forward to your comments!

Nico & Roel

Question 11

Claim set I

I.1. Cleaning utensil comprising:
a first layer comprising a sponge material;
a second layer comprising fibres.

I.2. Cleaning utensil according to claim I.1, wherein the cleaning utensil is a cleaning cloth and the sponge material comprises a synthetic sponge.

I.3. Cleaning utensil according to claim I.1, wherein the fibres comprise polypropylene.

I.4. Cleaning utensil according to claim I.1, wherein the cleaning utensil is a cleaning cloth and the second layer comprises fibres having loops or upstanding ends.

I.5. Cleaning utensil according to claim I.1, wherein the cleaning utensil is a cleaning cloth and a first portion of the fibres of the second layer is woven to form a web and a second portion of the fibres of the second layer has upstanding ends or loops protruding upwardly from the web.

I.6. Cleaning utensil according to claim I.5, further comprising a reinforcement layer arranged between the first layer and the second layer.

I.7. Cleaning utensil according to claim I.1, wherein the second layer comprises a first portion of fibres having a first weight and a second portion of fibres having a second weight, wherein the first weight is equal to or less than 25 decitex and the second weight is at least 100 decitex.

Assume that the claim set I was filed with the above description of the invention. For each of the statements, indicate whether the statement is true (T) or false (F):

Question 12

Assume that the claim set I was filed after the description and drawings in response to a communication under Rule 58 EPC. For each of the statements, indicate whether the statement is true (T) or false (F):

Question 13

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

Question 14

Claim II. 1 corresponds to claim I.1 amended to include the features of claim I.5:

II.1 Cleaning utensil comprising:

a first layer comprising a sponge material;
a second layer comprising fibres,
wherein the cleaning utensil is a cleaning cloth and a first portion of the fibres of the second layer is woven to form a web and a second portion of the fibres of the second layer has upstanding ends or loops protruding upwardly from the web.

Note: So embodiment 3

Claim III. 1 corresponds to claims I.1 amended to include the features of claim I.5, I.7 and the additional features of the mass of the fibres disclosed in the description:

Note: I.5 and I.7 were each single-dependent on I.1.

III.1 Cleaning utensil comprising:

a first layer comprising a sponge material;
a second layer comprising fibres,
wherein the cleaning utensil is a cleaning cloth and a first portion of the fibres of the second layer is woven to form a web and a second portion of the fibres of the second layer has upstanding ends or loops protruding upwardly from the web,
wherein the second layer comprises a first portion of fibres having a first weight and a second portion of fibres having a second weight, wherein the first weight is equal to or less than 25 decitex and the second weight is at least 100 decitex,
wherein the first portion of fibres make up 65% to 75% of the total mass of the fibres and the second portion fibres make up 25% to 35% of the total mass of fibres.

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

Question 15

Assume that the claim set I was filed with the above description of the invention. For each of the statements, indicate whether the statement is true (T) or false (F):

 We look forward to your comments! (Please use your name or a nickname)

(c) DeltaPatents

Annex – Pre-printables for Part 3 (copied from the pdf; added 19/3)

EUROPEAN QUALIFYING EXAMINATION 2023

Pre-examination

Documents for part 3

* Description of the application
* Document D1


Description of the application

Cleaning utensil

[001] The present invention relates to a cleaning utensil, in particular a cleaning cloth.

[002] Cleaning utensils such as cloths, mops and brushes may be used to clean many
types of surface. Different types of cleaning utensils may be more effective depending on
the type and amount of dirt which has to be removed from the surface.

[003] Figure 1 illustrates a first embodiment of a cleaning cloth 1 which comprises an
upper layer 2 and a lower layer 3. The lower layer 3 is made of a sponge material and the
upper layer 2 is made of fibres 4 that are woven to form a textile. The lower layer 3 may be
used to distribute water and cleaning solution over a surface in order to wet and soften the
dirt which has to be removed. The textile surface of the upper layer 2 is stiffer than the
sponge surface of the lower layer 3 and provides a more abrasive cleaning of the surface
to better remove dirt from the surface. The sponge surface of the lower layer 3 may also
be used to remove dirt loosened from the surface by the textile surface of the upper
layer 2. The cleaning cloth 1, therefore, includes two different types of cleaning surface
which can be used for different cleaning actions for an improved cleaning effect.

[004] Figure 2 illustrates a second embodiment of the cleaning cloth 1 that additionally
includes a reinforcement layer 5 that is positioned between the lower sponge layer 3 and
the upper layer 2 of woven fibres 4 forming the textile. The reinforcement layer 5 provides
an additional mechanical reinforcement of the cleaning cloth 1 which is useful when using
the cloth 1 to clean large surfaces. In some embodiments, the reinforcement layer 5
comprises a sponge material which has a higher water absorption capacity than the
material of the lower sponge layer 3 and the upper textile layer 2. For example, the sponge
material of the reinforcement layer 5 may include a higher degree of porosity which
enables it to store a larger amount of water. Thus, the sponge material of the
reinforcement layer 5 can release water to the upper and lower layers 2, 3 to prevent the
upper and lower layers 2, 3 from becoming too dry. This release of water into the upper
and lower layers 2, 3 improves the cleaning action of the cleaning cloth 1.

]005] Figure 3 illustrates a third embodiment of the cleaning cloth 1 illustrated in Figure 1
which includes a different arrangement of the fibres 4 of the upper layer 2. The lower
layer 3 includes the sponge material. In this third embodiment, a first portion of the fibres 4
is woven to form a web 7 and a second portion of the fibres 4 has upstanding ends 8 or
loops 9 protruding upwardly from the web 7. The loops 9 and upstanding ends 8 provide
more abrasive cleaning of a surface and also capture dirt removed from the surface thus
improving the cleaning efficiency.

[006] The fibres 4 of the upper layer 2 of each of the first, second and third embodiments
may preferably comprise two portions that include fibres of different weights in order to
enhance the cleaning effect. The heavier fibres provide an enhanced mechanical cleaning
action by virtue of their stiffness and the lighter fibres ensure sufficient flexibility of the cloth
when cleaning non-planar surfaces. If used in the third embodiment, the lighter fibres are
used to provide the web 7 and the heavier fibres are used to form the upstanding ends 8
and loops 9 protruding from the face of the web 7.

[007] Preferably, the fibres 4 of the first portion have a weight equal to or less than 25
decitex and the fibres 4 of the second portion have a weight of at least 100 decitex. The
weight of the fibre refers to the mass per unit length, which is measured in decitex (grams
per 10 000 m). The lighter fibres of the first portion make up 65% to 75% of the total mass
of the fibres and the heavier fibres of the second portion make up 25% to 35% of the total
mass of fibres.

[008] In each of the first, second and third embodiments, the fibres 4 comprise one of the
following polymers: a polypropylene, a polyamide, a polyester or a combination of these
polymers. The sponge material of the first, second and third embodiments may be a
natural sponge or a synthetic sponge.

Drawings of the application

(click on the image for a larger view)

Assume that the following document D1 is prior art under Article 54(2) EPC.

Document D1: Cleaning cloth

[001] Figure 1 illustrates a cleaning cloth 10. The cleaning cloth 10 comprises a first
layer 11 comprising fibres woven to form a textile, a second layer 12 comprising a natural
sponge material and a third layer 13 comprising fibres woven to form a textile. The second
layer 12 is arranged between the first layer 11 and the third layer 13 such that the sponge
material is held in a pouch formed of woven fibres. In some embodiments, the fibres of
both the first layer 11 and the third layer 13 comprise polypropylene with an antibacterial
coating.

[002] The fibres of each of the first and third layers 11, 13 comprise two portions having
different weights in order to improve the cleaning action. The fibres of the first portion have
a weight of 20 to 35 decitex and the fibres of the second portion have a weight of at
least 150 decitex. The weight of the fibre refers to the mass per unit length, which is
measured in decitex (grams per 10 000 m). The lighter fibres make up 54% to 64% of the
total mass of the fibres and the heavier fibres make up 36% to 46% of the total mass of
fibres.

[003] The sponge material of the second layer 12 has a greater water absorption capacity
than the outer textile layers 11, 13 and can release water into the outer textile
layers 11, 13 in use to increase the cleaning efficiency of the cleaning cloth 10.

Drawing Document D1

(click on the image for a larger view)

We also let ChatGPT provide answers to parts 3 & 4 of the Pre-Exam.

Some practical difficulties were that only plain text could be entered, which means that in part 3, the figures couldn't be provided, and that the underlining when indicating amendments was not present.

If one would consider our answers (see seperate posts, which are not necessarily correct!!) as the intended solution and applied the Pre-Exam's marking scheme (all correct: 5 points, 1 wrong: 3 points, etc), ChatGTP achieved 16/50 points which is well below the required passing grade of 35 (normalized from 70 for the entire exam to 35 for parts 3 & 4) and rather a score associated with mere guessing.

See below for ChatGPT's answers and short reasoning (red marked where ChatGPT's answer deviated from ours):

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.

 To all who sat the Pre-Exam today:

Please be reminded that you can view your exam answer after the exam, via the eye below the "1. Paper"-icon in the bottom left part of the flow window of the respective flow. (It may not be available immediately after the official end of the respective part of the paper, but only 30-60 minutes later.) Apart from the pre-printable parts, the paper itself cannot be downloaded (but in 2021 and 2022, the text of the questions and the statements are included in the answer).

Note that the questions (legal part) and 4 statements within a question (all parts) may appear in a different order here than they were in your actual exam, as the exam presents them in a randomized order to you. 

This was the third online -EQE with the Pre-Exam being held in four parts, and with the questions almost fully being taken from the screen (only the description of the application and the prior-art documents in the claims analysis parts were printable; also no calendars were provided).

Our answers to the legal part are given below. We have numbered the questions and statements for easy reference in the discussion.

During the exam, candidates had access to the EPO Legal Text pages, so including the full EPC Articles and Rules, Guidelines, GL/PCT-EPO, National Law Tables, Case Law, and the Euro-PCT Guide (HTML versions), as well as to some of the PCT Legal Texts, esp. PAT Articles and Rules and the PCT Applicant’s Guide in the new eGuide format (as on www.wipo.int/pct/en). Access was to the live versions, so to the versions in force on 17 March 2023 (so not the version of 31.10.2022 acc REE/IPEE).

Candidates could access the exam in all languages, English, French and German.

In the legal as well as the claims analysis parts, the order of the four statements of each of the questions was randomized, i.e., it was different for different candidates. 

Also the order of the questions was randomized in the legal parts (e.g., the sequence shown below was presented to one candidate, while another candidate reported getting what is shown below as Q.2 as the first question,), but not in the claims analysis parts.

In view of the randomized order, we provide the questions and statement together with our answers. If you check your answers with ours, note that the order of the questions and of the four statements from a single question may be different!!!

This year’s exam reused quite some questions from earlier Pre-Exams, with essentially just names of persons and dates adapted. Well-prepared candidates that practiced all old exams from the Compendium, including the 2019 Pre-Exam in rhe Wiseflow EQE Compendium, or the updated versions thereof from our P-book will presumably have appreciated this approach.  It also had a strange side-effect: it led to one statement of which candidates may not have understood why it was the way it was, as it hinted/related to a legal provision that was in force from 1/4/2010 until 31/3/2014 and hence the topics of a statement in Pre-Exam 2014…

Please feel invited to comment!

Please do not post your comments anonymously - it is allowed, but it makes responding more difficult and rather clumsy ("Dear Mr/Mrs/Ms Anonymous of 17-03-2023 20:23"), whereas using your real name or a nickname is more personal, more interesting and makes a more attractive conversation. You do not need to log in or make an account - it is OK to just put your (nick) name at the end of your post.

You may also want to check the other blogs: first impressions and claims analysis (part 3 & part 4 - added 18/3)

Diane & Roel

Pre-Exam 2023

Part 1&2 - Legal Questions (2 x 70 minutes)

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.

F – Assuming the statement related to the filing fee for EP-A when that is filed in the name of only Alvar - R.6(3)-(7): he is entitled if he files it in Finnish and files a declaration                             

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.

T – R.40(1)                    

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

T – Art.14(2)

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

F – do not know if pri was transferred to Alvar only

NB: substantially the same Q as in another very recent pre-exam (2019,Q.1)       

NB: confusing that "Today" is not the day of the exam, as is the usual case at the EQE questions.                 

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.

F – references thereto deemed deleted – R.56(4)   -, application stays alive                           

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

F – excluded                     

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.

T – R.56(2)                         

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

T – R.56(2), no pri so no R.56(3) possible

NB: substantially the same Q as in an earlier pre-exam (2018, Q.2)                           

Question 3

Saïd intends to file the following patent applications in French language:

(1) a European patent application EP-S

(2) an international patent application PCT-SE.

PCT-SE will be jointly filed in the name of Saïd and Eric. Eric lives in Paris. Saïd lives in Lebanon and is of Lebanese nationality. Lebanon is not a PCT member state.

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

3.1. If, two months after validly filing PCT-SE, Saïd moves to Paris, the EPO will, upon request, record the change of residence in relation to PCT-SE.

F – you can file the request for the recordal with the EPO if the EPO as used as rO (not given in the Q; could also be FR or IB), but IB does the recordal --- see also  Pre-Exam 2019 statement 5.4   

3.2. PCT-SE can be validly filed with the International Bureau as receiving Office.

T – Eric Paris, IB always possible if at least one from a PCT state                         

3.3. Saïd can validly file EP-S with the EPO.

T – Art.58, Art.133(2)                    

3.4. PCT-SE can be validly filed with the EPO as receiving Office.

T – Eric Paris

NB: substantially the same Q as in another very recent Pre-Exam (2019, Q.5)     

NB:Although French national security restrictions apply, the PCT application is still a valid application if a French resident does not use INPI as RO for first PCT filing - there is no penalties in PCT, but there may be penalties under French law. See https://pctlegal.wipo.int/eGuide/view-doc.xhtml?doc-code=IB&doc-lang=en#RO: "It is the responsibility of the applicant or the applicant’s agent to comply with any applicable national security provisions before filing an international application with the International Bureau as receiving Office.              

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.

F – no such option in Art.61(1), no other legal basis either

NB: no stay requested; EPO not yet informed of outcome, so will still assume                     

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.

T – after informing EPO Art. 61(1)(a); GL A-IV, 2.4                                     

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

T – after informing EPO Art. 61(1)(c); GL A-IV, 2.6                       

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.

T – after informing EPO Art. 61(1)(b), G 3/92; ; GL A-IV, 2.5             

Question 5

On 31 January 2022, Susanne, a German national living in Germany, filed a PCT application PCT-S in German, validly claiming priority from her European patent application EP-S, filed on 29 January 2021 in German. PCT-S contains claim 1 as originally disclosed in EP-S and claim 2 directed to an improved embodiment that was not disclosed in EP-S. PCT-S was published in German on 7 August 2022. Susanne sold PCT-S to Ian, a British national. The international search report issued by the EPO as International Searching Authority states that claim 1 is not novel over the prior art and the subject-matter of claim 2 is novel and involves an inventive step. Ian wants to enter the regional phase before the EPO for PCT-S. Today is 6 March 2023.

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

5.1. When entering the regional phase before the EPO, Ian can file an English translation of PCT-S so that the language of the proceedings of the regional phase of PCT-S will be English.

F – G 4/08                         

5.2. Withdrawing the priority claim of EP-S will affect the effective date of claim 2.

F – prio for for claim 2 not valid as subject-matter not in EP-S, so no effect of withdrawal of pri on its effective date (Claim 1 has valid pri (same subject-matter & 29/1/2021 after R.134(1)) and claim 2 has not (31/1/2022))                          

5.3. Today, 6 March 2023, Ian can withdraw the priority claim of PCT-S in the international phase so that the time limit for entering the regional phase before the EPO for PCT-S expires on 2 September 2024.

T – can withdraw until 29/1/2021 + 30m R.90bis.3 -> 29/7/2023 (Sat) -> 31/7/23;  then EP-entry time limit becomes  31/1/22 + 31m R.156(1) EPC -> 31/8/24 (Sat) -> 2/9/24

But one could also answer:

F – because we weren’t told that Ian has been recorded to IB as new applicant

NB: It has never been necessary that a calendar of the next year was needed!                     

5.4. The time limit for entering the regional phase before the EPO for PCT-S claiming priority from EP-S ends on 31 July 2023.

F – 29/1/2021 + 31 -> 29/8/2023 (Tue)  (incorrectly using 30m would lead to T)                 

Question 6

European patent application EP-P was filed as a first filing on 2 December 2019 and was published on 13 June 2021. On 28 November 2021, you received the first communication from the examining division under Article 94(3) EPC regarding EP-P. European patent application EP-D was filed with the EPO on 8 December 2022 as a divisional application of EP-P. Today, 6 March 2023, EP-P is still pending. Some of the claims of EP-D contain subject-matter that was not originally disclosed in EP-P. The renewal fees for EP-D have not yet been paid.

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

6.1. The renewal fees, already fallen due, may be validly paid for EP-D on 11 April 2023 without an additional fee.

T – 8/12/22 + 4m R.51(3) -> 8/4/23 (Sat) -> 11/4/23 (Tue, as 10/4 is Easter Monday)                        

6.2. In the present case EP-P will be regarded as prior art under Article 54(2) EPC against EP-D.

F – Art.76(1)                      

6.3. At present, EP-D is deemed to have 8 December 2022 as its date of filing.

F – Art. 76(1): 2 Dec 2019                           

6.4. An EP divisional application cannot be validly filed after 24 months from the issuance of the first communication under Article 94(3) EPC in respect of EP-P and therefore EP-D was not validly filed as a divisional application.

F – you can only go wrong here if you have a really old legal text (there was a rule to this effect between 1/4/2010 and 31/3/2014)

NB: substantially the same Q as in an earlier pre-exam (2014, Q.2) – at the time of that exam, the rule with a 24m time limit was in force.                          

Question 7

A company having its principal place of business in France files an international patent application at the French national patent office. The language of this international patent application is English. As a receiving Office, the French national patent office accepts international patent applications filed in French only. The International Searching Authority for this international patent application is the European Patent Office, which accepts the following languages for international search: English, French and German.

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

7.1. The search fee is collected by the International Searching Authority for its own benefit.

F – rO – PCT Rule 16.1(b)                            

7.2. The international patent application will be considered to have been received by the French national patent office on behalf of the International Bureau as receiving Office.

T – R.19.4(a)(ii) wrong language               

7.3. The international patent application will be transmitted to the International Bureau.

T – R.19.4(b)                     

7.4. A translation is required by the European Patent Office for the international search.

F – EPO as ISA accepts English – last sentence of  case statement of the question itself - see also EPO-WIPO Agreement or Euro-PCT Guide 3.1.015               

Question 8

A European patent application, EP-A, was filed in English on 2 September 2021 claiming priority from a Swedish national patent application, SE-A, which was filed on 2 September 2020. EP-A was published on 9 March 2022. EP-A is pending.

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

8.1. The European examination proceedings are in progress. Third-party observations written in English are filed today and explain why a scientific journal article published in Swedish on 10 August 2020 is novelty-destroying for the claimed subject-matter of EP-A. The third-party observations are filed anonymously at the European Patent Office, together with a copy of the Swedish publication.
In view of this, the third-party observations are validly filed.

T – GL E-VI, 3 and R.3(3) – evidence may be in any language                        

8.2. Third-party observations must cite prior art documents.

F – can be e.g. Art.123(2) or Art.84                         

8.3. The decision to grant a patent based on EP-A has already been sent to the applicant. Third-party observations are received by the EPO just before the publication of the mention of the grant. They cite a new document destroying the novelty of the allowed claims.
In view of this, the examining division will consider them and resume the examination proceedings.

F – only considered ad resumed R.71a(2) if filed before the decision to grant (EPO Form 2006A) has been handed over to the EPO postal service - GL E-VI, 3                        

8.4. A patent based on EP-A has been granted. The mention of the grant was published on 1 March 2023. Third-party observations are validly filed today.
In view of this, the person filing the third-party observations will be a party to the opposition proceedings if opposition proceedings start.

F – Art.115, also G 2/19                

Question 9

When filing a European patent application with 14 claims, the applicant also submits a request for examination by filing the written request and paying the examination fee. The European Patent Bulletin mentions the publication of the European search report on 20 January 2023. The European search opinion states that claim 1 lacks novelty. The applicant receives an invitation under Rule 70(2) and Rule 70a(2) EPC dated 13 February 2023 setting a time limit of six months running from the publication of the European search report.

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

9.1. The applicant can validly file a request for accelerated examination before timely filing of a valid reply to the invitation.

F – Ex Div must be responsible, only after reply                 

9.2. If the applicant omits in his timely reply to the European search opinion to indicate that he wishes to proceed further with the application, the application is deemed to be withdrawn.

F – response = indication                            

9.3. The application shall be deemed to be withdrawn if the applicant files a reply to the invitation on 14 August 2023.

T – 20/1/23 + 6m -> 20/7/23 (you would wrongly answer F if you do 6m from 13/2/2023 or 10d+6m from 13/2/2023)                           

9.4. If the applicant validly replies to the invitation and files three additional claims, he must pay the claims fees for two claims within one month of filing the claims.

F – R.45(1) or R.71(4) not now                  

Question 10

Applicant Andrew names Berta as sole inventor in his European patent application EP-A.

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

10.1. The EPO informs Berta in a communication about her designation as inventor in the European patent application EP-A.

F – not anymore – R.19 as amended per 1/4/2021; was done before that time                    

10.2. Berta can pay any fees to the EPO.

T – anyone can pay – GL2022/GL2023 A-X, 1                      

10.3. Berta can waive her right to be mentioned as inventor in the published European patent application EP-A

T – R.20(1)                         

10.4. If Carla was incorrectly designated as inventor in the European patent application EP-A, there is no way to request rectification of the incorrect designation.

F – R.21              

We look forward to your comments!

(c) DeltaPatents

Good luck with the Pre-Exam 2023!

Our EQE blogs will be open for your comments and opinions w.r.t. the Pre-Exam, A, B, C and D shortly after the exams. We will post our (provisional) answers to the various papers shortly after the exam - for the Pre-Exam, we will use separate blog posts for the legal part and for the claims analysis part, and one for first impressions. 

Do not post any comments as to the merits of the answers of a certain exam paper/flow on the blogs while an exam/flow is still ongoing. Also, do not post the invigilator password or anything else that may be considered the breach of the exam regulations, instructions to the candidates, code of conducts, etc (see, e.g.,  EQE homepage, EQE notices, EQE online website, MyEQE, and the emails from the EQE secretariat).

All candidates, as well as tutors who helped candidates prepare for EQE 2023, are invited to contribute to the discussions on our EQE blogs! You can post your comments in English, French or German. You are invited to post your comments under your real name, but it is also possible to use a nickname if you wish to hide your identify.

The DeltaPatents team

NB: you can not comment to this blog post; comments will be accepted from a new blog post "First impressions" as of 16:10, i.e., which will become available after the Pre-Exam has finished.

The "Information on the schedule for the EQE 2023 examination papers" is now available on the EQE website (first version 27 September 2022; updated version 19 December 2022)

The EQE 2023 will take place online using the same setup as the EQE of 2021 and 2022.

The pre-examination will have the same syllabus and character as before, but -as in 2021 and 2022- it will be split into four parts of 70 minutes, each part having 5 questions (4 statement per question). Each part must be completed before the start of the next break, with the next set of questions only becoming available after the break. Once the time allowed for a part has elapsed, it will not be possible to go back to that part. The pre-examination lasts four hours and forty minutes.

Candidates will be allowed to print the description of the invention as well as the prior-art documents for the claim analysis parts before the start of the appropriate part. The documents allowed for printing will be made available during the break preceding the relevant claim analysis part.

No calendars will be provided (see here).

Candidates often ask us questions on possibilities to file a Pre-Exam appeals based on an alleged unclarity, alleged ambiguity or alleged error in a Pre-Exam question or statement or in the Examiner's Report or based on a different understanding or interpretation of the question or statement.

Below, a recent decision from the Disciplinary Board of Appeal (which is the competent Board of Appeal for EQE appeals) is discussed that presents a nice overview of the (limited) extent of the competence of the DBA, and also addresses how Pre-Exam questions and statements need to be interpreted by candidates, the Pre-Exam Committee and the Examination Board. The decision answers substantially all questions that candidates ask us on Pre-Exam appeals, so we present it in this Pre-Exam blog rather than in our Case law Blog. 

Also, we present a (non-exhaustive) overview of neutralizations of Pre-Exam statements/questions and of Pre-Exam appeals.

Interpretation

D 2/21, reason 5 provides: “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).”

D 2/21, reason 5 concludes from this that: “[…] 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).”

D 2/21, referring to D 5./16, r. 33,  also clarifies that candidates shall not dig for exotic exceptions and candidates cannot twist the interpretation tot their advantage, and that it is rather a question of the correct interpretation or general understanding, rather than looking for exceptions or far-fetched interpretations.

D 2/21, reason 5: “However, 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". […]”

Although the decision does not give an example, I can imagine that examples could be where, when filing a PCT application, nationality and/or residence of an application or the language of the application are not given, one can strictly not confirm that the EPO is the competent rO while this is strictly speaking of relevance – but where it would be clear from the question as a whole that this is not an aspect tested (as in Pre-Exam 2021, Question 2. Note that in Pre-Exam 2018, the EB did take an expection into account, i.e. Art.25 EPC while the question was -in my view- clearly directed to pre-grant proceedings and neutralized 4.4; the Examiner;as Report even indicates “On account of this rare possibility the statement 4.4 has been neutralised and marks are awarded for both answers”)

Appeals

Before you sit the exam

Come well-prepared to the Pre-Exam. The Pre-Exam shows pass rates of 85% and higher, indicating that Pre-Exam is well doable for well-prepared candidates. Prepare for a good legal knowledge and a good understanding of claims analysis topics (e.g., taking our Pre-Exam Intergrated course and practicing from our L-book and P-book), learn how to read and understand exam questions, to recognize what is tested and to come to answer efficiently. Also get acquantained with the exam platform wit hits secure brower, Wiseflow, and get familiar with the way the questions and statements are presented to you in Wiseflow; also participate in the mock exams under exam situations where the exam platform is tested in full operation, including camera, microphon and proctoring/invigilation.

While sitting the Pre-Exam, you can only answer with TRUE or FALSE and cannot hand-in any notes or comments. It is recommended to take some notes on paper as to how you came to an answer, such as your legal basis or your interpretation of special terms, notably the ones which you consider ambiguous, and where you sense or expect that they will be subject to discussion after the exam.

Try to prevent the need to appeal

You may possibly prevent an appeal by drawing the attention of the Pre-Exam Committee and the Examination Board to the issue via comments to our Pre-Exam blogs -where others may support and strenghten your point, and/or indicate why your reasoning is not convincing (yet)- and via e-mail to the Pre-Exam Committee and the Examination Board via the EQE secretariat (Art. 19(1) REE). If the Committee and he Examination Board are convinced that a statement must be neutralized before the results letters and the Examiner's Report are issued, the neutralization will be performed for all candidates and no appeals are necessary. The EQE Committees and the Examination Board have indicates at various occasions that they are considering the blogs and the comments posted there on when deciding whether neutralization of a statement needs to be considered (also considering otehr factors, such as statistics). The marking will thus immediately have included the neutralizations. This is presumably the most efficient, and certainly the quickest, way to get statements neutralized.

You can also file a formal complaint. For EQE 2023, the "Instructions to candidates concerning the conduct of the European qualifying examination" dd December 2022 (https://documents.epo.org/projects/babylon/eponot.nsf/0/0EBC9DA304DF20A4C125868100424C67/$FILE/Instructions_EN.pdf), item 8, provides: "Candidates wishing to lodge a complaint concerning the conduct of the examination must do, so at the latest by the end of the day on which the paper concerned takes place, by filling in the dedicated form made available by the Examination Secretariat."

For EQE 2022, the “ Instructions to candidates concerning the conduct of the EQE” (https://documents.epo.org/projects/babylon/eponot.nsf/0/0EBC9DA304DF20A4C125868100424C67/$FILE/Instructions%20to%20candidates%202022.pdf), item 8 provided: “Candidates wishing to lodge a complaint concerning the conduct of the pre-examination or the main examination can do so at the latest by the end of the day on which the examination takes place by sending an email with a written statement of the facts to the Examination Secretariat (helpdesk@eqe.org) and stating their full name and EQEReg number.” 

If that is not successful

If neither the "informal" way via the blogs or the formal way via complaints is not successful and the reasoning given in the Examiner’s Report does not make you reconsider, you may want to appeal if you obtained a FAIL – Art. 24(1) REE. If you do not individually appeal your individual FAIL decision within the 1-month appeal time limit, the individual FAIL decision in respect of your Pre-Exam becomes final and can in principle not be overturned anymore. However, in some cases, in particular where the appeal was granted quickly by the Examination Board in interlocutory revision, the neutralization that resulted from the appeal was applied widely; one should however not rely on this, and it is recommended to file your individual appeal.

A notice of appeal including the statement setting out the grounds for appeal must be filed in writing with the Examination Secretariat within one month of the date of notification of the decision appealed against – Article 24(2) REE. The appeal fee must also be paid within the same one month period - Article 24(2) REE. 

Note D 36/21, reasons 1.4.2-1.4.3 emphasized that the appeal needs to be filed according to the provisions of Art. 24(2) REE in conjunction with Article 6(1), second sentence, RPDBA, which sets out that the appeal "shall be signed by the appellant", and Article 6(2) RPDBA, which stipulates that a "notice of appeal and any written statement setting out the grounds of appeal may be filed by facsimile but a signed document reproducing the contents of every such notice and statement shall be filed within two weeks of the receipt of the facsimile". "[...] Consequently, the standard means of communication for filing an appeal [...] is an appeal document in paper form signed by the appellant;

• this document may be sent by postal services or delivered by hand to the Secretariat. 
• Article 6(2) RPDBA provides for the sole exception to this rule, namely the option to file the appeal by fax in due time provided that the original is subsequently filed within two weeks."\

Note that, 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 - Article 24(4) REE. Unfortunately, no information is available (to my knowledge) in the public documentation woth respect tot he conditions and amounts of the refunds – it is e.g. not known whether whether the fee will be refunded in full or in (which) part if the appeal is withdrawn immediately after the EB forwarded the appeal tot he DBA, or when the DBA issued its preliminary opinion, just before oral proceedings (if requested), or during oral proceedings but before the decision is pronounced. Also, there is no public information as to how many appeals are withdrawn and at which moment; there is also no information published about the topics that have been raised in appeals that were withdrawn.

An appeal is examined in two-steps:

First, the Examination Board (who issued the FAIL decision based on the marking done by the Pre-Exam Committee) will review their decision in view of the arguments submitted. If the Examination Board considers the appeal to be admissible and well-founded, it shall rectify its decision and order reimbursement of the fee for appeal – Art. 24(3), 1st sentence REE -, i.e. interlocutory revision is granted. The Examination Board can only consider arguments based on the grounds that the REE or any provision relating to its application has been infringed – Art.24(1) REE. Arguments will need to be convincing as the Examination Board also approved the original answers, so you will need to make them change their mind. The EB has not indicated what the scope of their competence and the extent of their examination as to, e.g., substantive arguments and interpreation is, but it seems that they follow the scheme set out by the DBA, albeit taking a less strict approach.

Then, if the appeal is not allowed by the EB within two months from notification of the decision -i.e., if the EB did not grant interlocutory revision-, it is remitted to the Disciplinary Board of Appeal of the EPO – Art. 24(3), 2nd sentence REE. In D 2/12, the DBA gives a nice overview as to how they apply the principle that appeal may only be on the grounds that the REE or any provision relating to its application has been infringed – Art.24(1) REE: their scope is quite limited by, in particular, Art. 24(1) REE and consistent case law of the DBA.

D 2/12 provides the following (emphasis added; line breaks added):

"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).

However, 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). […]

7. However, the Board of Appeal considers that statement 12.4, including the facts underlying the pre-examination question, cannot be answered clearly and unambiguously with "False" for the following reasons. […]

13. In view of the above, the expectation that candidates should be able to derive the clarity of the term "low temperature" in feature (vi) of claim I-8 from the term "high temperature" in feature (ii) of that claim is not considered justifiable by the Board of Appeal. […]

15. This further reasoning in the report also does not justify that the answer to statement 12.4 can be clearly and unambiguously stated as "False": […]

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."

Examples of Pre-Exam appeals and neutralizations (not exhaustive)

• Examiners' Report - 2022, Pre-Exam 2022, complete Part 3 (Q.11 - Q.15) was immediately neutralized due to a translation error in the German version [005] of the description, second line (It should have read Poly-Y and not Poly-X).
  
  
• Examiners' Report - 2022, Pre-Exam 2022, Part 4: Q.20 was immediately neutralized as the question as presented in Wiseflow to the candidates missed the information in respect of which claim the (cloasest prior art) question had to be assessed.
  
  
• D 2/21, D 4/21, D 7/21 (EN),  D 6/21 (DE), D 5/21, D 3/21 (FR) - Pre-Exam 2021, statement  12.4 "Claim I-8 is unclear due to the use of the term low":
  "2. According to the report the question "Claim I-8 is unclear due to the use of the term low" had to be answered "FALSE". However, the Board holds that on the basis of this report the question "Claim I-8 is unclear due to the use of the term low" cannot clearly and unambiguously be answered "FALSE".";
  "3. [...] Case Law Book, II.A.3.1 and II.A.6.3.5, according to which "The clarity stipulation under Article 84 EPC 1973 concerned only the claims, and therefore ... required that they be clear in themselves, without there being any need for the skilled person to refer to the description." With regard to this case law there is a strong indication that the appellant's answer "TRUE" to question 12.4 may a priori not be evaluated as incorrect taking into account the examination questions as a whole, hence, a categorically "FALSE"-answer appears not to be justified."
  "4. The reasoning provided in the report does not justify the "FALSE"-answer either, since it is not comprehensible that "feature (vi) in claim I-8 is clearly distinguished from the term "high" in feature (ii) of claim I-8"."
  "5. Furthermore, as pointed out in the statement of grounds of appeal, the argumentation in the report "Although broad, the term is not necessarily unclear [GL 2019 F-IV 4.6.1]" explicitly concedes that the statement 12.4 cannot unambiguously be answered as FALSE or as TRUE. "Not necessarily unclear" does not allow an unambiguous clear or unambiguous unclear, which is required for a pre-examination statement (see D 3/19, point 2.3 of the reasons)."
  "6. The Board also agrees with the appellant that the statement in the report, referring to GL 2019 F-IV 4.6.1, "if a relative term is not the only feature to distinguish the subject- matter of a claim from the prior art", does not allow the conclusion that "the use of the relative term may not be objected to under Article 84 EPC". Rather,  the actual text of the GL 2019 F-IV 4.6.1 only states that ...[...] Hence, it is not tenable that the term "low" categorically "may not be objected to" as stated in the report."
   
• D 5/21 (FR) - Pre-Exam 2021, statement  19.4 "Conformément à l'article 123(2) CBE, il y a une base pour modifier comme suit la revendication IV.1 de la demande déposée initialement: [...]" / "Under Article 123(2) EPC, there is basis for amending claim IV.1 of the originally filed application as follows: [...]":
  "3.6 En ce qui concerne l'omission de la caractéristique 1, c'est à dire l'exigence que les charnières entre les trois sections parallèles de la couverture ne soient pas seulement parallèles entre eux, mais aussi parallèles à la charnière reliant la partie de couverture et la partie de réception, le rapport des Examinateurs ne donne aucune explication pourquoi cette omission serait conforme à l'article 123 (2) CBE. La Chambre considère qu'il est acceptable et justifié de soutenir que la caractéristique 1 se rapporte uniquement au deuxième mode de réalisation de l'invention et est liée de façon inextricable à la caractéristique extraite du paragraphe [05]. En effet, selon le paragraphe [05] les trois sections parallèles ne doivent pas seulement êtres plates et rigides, mais aussi parallèles à la charnière reliant la partie de couverture et la partie de réception afin de pouvoir former un prisme triangulaire qui peut servir de support incliné à la partie de réception. Par conséquent, la caractéristique 1 ne pourrait pas être omise sans enfreindre l'article 123 (2) CBE. L'affirmation 19.4 peut donc être considérée comme fausse."
  
  
• Examiner’s Report 2021: Q.10 was immediately neutralized due to an erroneous wording in the question introduced by a late amendment to the question. The issue was widely spotted and reported and no appeals were necessary.
   
• D 3/19, Pre-Exam 2019, statement 4.1 "If Didier files the application in Dutch, he must file a translation into one of the EPO's official languages within two months of filing the application.”: 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.

• Examiner’s Report - 2018, Pre-Exam 2018, statement 5.3: The Examiner’s Report as amended after interlocutory revision of Pre-Exam appeals indicates: “In view of arguments raised on appeal it appears that the statement 5.3 could be understood as referring to the concept of “entry” versus “early entry” into the European phase with regard to 26 February 2018. This would additionally require the lifting of the processing ban before the 31-month time limit has expired by filing a request for early entry (cf. GL E-IX, 2.8 and OJ EPO 2013, 156). Thus in view of this interpretation it was decided to neutralise the statement 5.3 and award marks for both answers.." 
  
  
• Examiner’s Report - 2018, Pre-Exam 2018, statements 12.2 and 12.4 were immediately neutralized. 
  
  
• Examiner’s Report - 2018, Pre-Exam 2018, statement 13.1: Initially, the Examiner’s Report indicated False (indicating that "the dependency of claim II.3 is not correct (Article 84 EPC). Claim II.3 should be dependent only on claim II.1"). The Examiner's Report was revised after interlocutory revision to neutralize statement 13.1, including revised comments, and indicating "In view of these arguments both possible answers are considered to be correct. For this reason it was exceptionally decided to award marks for both answers."
  
  
• D 1/17 (EN), D 2/17 (DE), Pre-Exam 2017, statement 18.4: "2. It is undisputed and also admitted in the Examiner's Report that there is a 'slight difference' of the German language version compared to the French and English version in the third sentence of paragraph [003] of document D2.", "4. When resorting to the German version the Candidate in an attempt to solve any possible ambiguity emanating from the English and French versions could consider that the vibrations of the melody could be independent and not generated via the loudspeaker. A Candidate resorting only to the English or French version was therefore provided with different information compared to Candidates also referring to the German version."
   
• D 1/16 (DE), D 2/16 (DE), D 4/16 (EN), statement 5.4: German version different from English version; definite article ("der Vertreter") vs indefinite article ("a representative"): "3. The definite article "der" before "Vertreter" refers in this context to a specific individual. Contrary to the note of the Examination Board in its letter dated 15 June 2016, the definite article in the context of statement 5.4 cannot be interpreted in a generalised sense as "representatives in general". With regard to Rule 22(3) IPREE, which applies analogously to the pre-examination, the words "der Vertreter" can only be seen as a reference to the representative Hassan indicated in the introductory case."
• D 6/16 and D 10/16 were not successful. D 6/16: "3. The appellant's submissions regarding the alleged mistakes would require an in-depth review of the content of the examination material. In order to establish whether the alleged mistakes actually occurred, the board in fact would have to review if not all, then at least a substantial part of the examination paper and the corresponding part of Examiner's Report. The board would have to perform a detailed, partly technical analysis of the facts presented, e.g. of the description and the drawings of the client's European patent application, of the statements as such or of the claims and the state of the art mentioned in the statements. Therefore, the subject of the review requested in the present appeal appears to be the 'correct' interpretation of the contested statements for the assessment in the examination paper, and equally the examination of the corresponding solutions in the Examiner's report as to their correctness. Thus, an examination of the lines of argument put forward by the appellant would result in an exercise which obviously could not be carried out without a value judgment. In the board's view, the assessment of claim features on the one hand and their comparison with technical details of the disclosed invention and the prior art documents on the other hand would be such a value judgment, which inevitably would have to be based on at least a significant portion of the facts presented in the examination paper."
  "4. However, in accordance with the consistent jurisprudence of the Disciplinary Board of Appeal, value judgments are not, in principle, subject to judicial review (see Case Law of the Boards of Appeal, 8th Edition 2016, Chapter V.2.6.3). The board considers that this settled jurisprudence of the Disciplinary Boards of Appeal is also applicable to appeals concerning the pre-examination. This is so even though the marking of the papers, the latter being understood as the according of the marks on the basis of the answers, is hardly ever in dispute, given the simple marking scheme of a multiple choice test where the answers are merely 'True' or 'False', so that their evaluation is straightforward and objective. However, the review requested in the present case is clearly not directed to the marking itself, but to the content of the pre-examination as presented to the candidates. As explained above, deciding on the issues raised by the appellant (the application as filed and interpretation of the terms therein, analysis of claims and their scope in relation to novelty, extended subject-matter and choice of closest prior art) would result in an exercise which appears to be well beyond the powers of the board, as this would in fact be tantamount to reviewing the substantive content of the examination material."
  
  
• D 2/15 (DE), Pre-Exam 2015, statements 16.3, 20.4 and 5.2 not successful
  
  
• Examiner's Report 2015, statement 20.2 was neutralized: "The formulation of 20.2 was however unnecessarily complex. Just by using the expression “D2 could be replaced by” instead of “D2 could replace” the solution would become “True”, since there is no teaching that solid wood could be replaced by the material of D1. For this reason, it is exceptionally decided to award marks for the answer “True” as well."
   
• Pre-Exam 2015, addendum to the Examiner's Report: the Examination Board allowed interlocutory revision in appeals based on 15.2 and 17.3. The EB informed the appellants at the end of March and this addendum was published on the Compendium pages,statements 15.2 and 17.3:
  "Since it can be argued (as it was done in some appeals) that the disclosure of D1 may not be sufficient for the candidate to conclude that cardboard generally comprises wood fibres, it was decided to award marks also for the answer “True” in statement 15.2 and for the answer “False” in statement 17.3 to the appellants (Art. 24(3) of the Regulation on the EQE for professional representatives). In addition, also candidates who did not file an appeal on this issue but in the light of these considerations would have passed, were upgraded and were informed accordingly."
  
• D 2/14 (DE), D 3/14 (EN), D 4/14 (FR), D 5/14 (DE), D 6/14 (DE), Pre-Exam 2014, statement 10.4: 
  "6. [...] Consequently, the examiner's evaluation of the examination papers rests upon a question that cannot, upon an objective reading, be derived from statement 10.4 of the pre-examination 2014."';"7. The appellant's understanding of statement 10.4 of question 10, on the basis of which she arrived at her answer, is justified from an objective point of view. [...] As a consequence, the answer to statement 10.4 was "false" and not "true" as indicated in the Examiner's Report for the pre-examination 2014. The discrepancy between the question underlying statement 10.4 and the expected answer according to the Examiner's Report was thus to the disadvantage of the appellant."; "8. As a result, the examiners of Examination Committee IV have based their evaluation of the pre-examination 2014 on an incorrect premise, since the Examiner's Report for that examination was based with respect to statement 10.4 on a different question from that inferable from said statement on an objective reading. Therefore, the contested decision is based on serious and obvious mistakes which can be established without reopening the entire marking procedure. The appeal is thus well founded and allowable. According to Article 24(4) REE, the contested decision has to be set aside and the appeal fee reimbursed."
  The DBA also commented on the need to get to a quick decision by interlocatory revision in clear and unequivocal cases:
  "9. Pursuant to Article 24(3) REE, the department whose decision was contested (in the present case the Examination Board) must rectify its decision if it considers the relevant requirements to be fulfilled. This also means that the Examination Board is obliged to assess carefully whether or not these requirements are met before deciding to grant or refuse rectification and, in the latter case, referring the matter to the board of appeal (D 38/05 of 17 January 2007, point 3 of the Reasons; D 4/06 of 29. November 2006, point 3 of the Reasons). In clear and unequivocal cases, rectification is a quick and simple way of cancelling flawed decisions and spares the parties the cost, in time and money, of appeal proceedings. Rectification is thus in the public interest and in particular in the interest of the appellant (D 38/05 of 17 January 2007, point 2 of the Reasons; D 4/06 of 29. November 2006, point 2 of the Reasons). Having regard to the obvious discrepancy between the question underlying statement 10.4 and the expected answer according to the Examiner's Report, rectification (Article 24(3) REE) was warranted in the present case, especially in view of the fact that candidates who apply to sit the European qualifying examination must first pass the pre-examination (Article 11(7), last sentence, REE)."

Decision D 2/21 of 3.2.2022 (pdf) has European Case Law Identifier: ECLI:EP:BA:2022:D000221.20220203. Photo "Red flags" by =Nahemoth= obtained via Flickr under CC BY 2.0 license (no changes made).
D 4/21 (in English) and D 6/21 (in German) have substantially the same content.

Posted 9/2/2022; Updated 10/2/22 in view of  D 4/21 and D 6/21; Updated 14/2/2022 in view of D 5/21 (12.4 & 19.4); Updated 19/2/2022 in view of D 7/21 (12.4); Updated 24/2/2022 in view of D 3/21 (12.4); Updated 25/4/2022 in view of Examiners' Report 2022 (Q.11-15, Q.20); updated 16/11/2022 in view of D 36/21 (how to file an appeal); updated 20/12/22 in view of Instructions to the candidates for EQE 2023 (amended compared to EQE 2022 version).

This was the first e-EQE with the Pre-Exam being held in 4 parts, and with the questions almost fully being taken from the screen (only the calendars in the legal part and the application and the prior art in the claims analysis parts were printable).

In the legal as well as the claims analysis parts, the order of the four statements of each question was randomized, i.e., it was different for different candidates. 

Also the order of the questions was randomized in the legal parts (e.g., a candidate reported getting what is shown below as Q.2 as the first question and getting what is shown as Q.1 below as the third question), but not in the claims analysis parts. [Updated 2.3.2021, 9:20]

On earlier years, we just provided a list of T and F's for the 4 statements per question, as all candidates had the same order of them in the paper exam. In view of the randomized order, we now also provide the statements. If you check your answers with ours, note that the order of the questions and of the four statements from a single question may be different!!!

Please feel invited to comment!

Note: the claims analysis part is discussed in our other blog post: here.
First impressions and general comments can be posted here.

[Update 4 March 2021 7:15:] We have compiled a version of the paper, in English; it is available here. In our version, the sequence of the questions and statements corresponds to the order as was presented to some candidates; other candidates obtained the questions (in the legal parts) and the statements within a question (in the legal parts as well as in the claims analysis parts) in different order. The sequence/numbering of the questions in our version of the paper corresponds to that used in this blog post.

Our answers to the legal questions are given below.

[Update 2 April 2021 8:45:] 
The Examiner's Report was published yesterday on the EQE website (Compendium); all our answers to Q.1-Q.9 correspond to the answers in the Examiner's Report; Q.10 was completely neutralized (see below).
Note that in the Examiner's Report the order of Q.7 and Q.8 is swapped compared to our version, and that the order of the statements in most of the questions is different from our version.

Q.1

The European patent application EP-A was filed on 07 September 2017. The mention of grant of the patent was published in the European Patent Bulletin on 10 February 2021.

The applicant validly filed a divisional application from EP-A (EP-A-DIV) on 05 February 2021.

·         1. The renewal fee for EP-A in respect of the fourth year was due on 07 September 2020.

o   FALSE – last day of month: 30 September 2020 – Art.86(1), R.51(1)

·         2. The renewal fee for EP-A in respect of the third year could have been validly paid on 03 May 2019

o   TRUE – due on 30 Sep 2019, third yr renewal may be paid 6m in advance, so as of 31/3 – R.51(1), de-ultimo-ad-ultimo J4/91

·         3. The renewal fee for EP-A in respect of the fifth year shall be paid to the EPO

o   FALSE – grant was 10/2/21, fifth year starts Sep 2021, so to national offices – Art.86(2), Art.141(1)

·         4. All renewal fees due in respect of EP-A-DIV can be validly paid without an additional fee on 07 June 2021.

o   TRUE – 5/2/21 + 4m [R.51(3)] -> 5/6/21 (Sat) [R.134(1)] -> 7/7/21 (Mon)

Q.2

Anna, a French citizen, validly filed a French patent application FR-1 on 06 February 2020. On 08 February 2021 she filed an international application PCT-1 in respect of the same subject-matter as FR-1 at the EPO. Anna intends for PCT-1 to claim priority from FR-1.

·         1. The filing fee for PCT-1 shall be paid directly to the International Bureau.

o   FALSE – need to pay to rO = EPO (FR nat/res, FR language assumed); R.15.1 PCT

o   *The statement cannot be answered without any doubt as the language in which PCT-1 is field by Anna is not specified. If PTC-1 would not have been filed in EN/FR/DE, then EPO will transmit PCT-1 to the IB and the IB is considered the rO (R.19.4(a)(ii))), because EPO as rO does not accept other languages (R.12.1 PCT; R.157(2) EPC).

·         2. PCT-1 can validly claim priority from FR-1.

o   TRUE - 6/2/20 + 12m -> 6/2/21 (Sat) -> 8/2/21; same applicant, same subject-matter; (independent of language being the same or different)

·         3. PCT-1 cannot validly claim priority from FR-1, if FR-1 has been abandoned before the filing of PCT-1.

o   FALSE – Art.4A(3) Paris Convention (PC equivalent of Art.87(3)): Priority can be claimed from FR-1 as long as a filing date has been accorded, whatever may be the subsequent fate of the application.

·         4. Anna can validly file the priority declaration in May 2021

o   TRUE – R.26bis.1 PCT 6/2/20 + 16m -> 6/6/21 (Sun) -> 7/6/21 (Mon)

Q.3

European patent application EP-P was filed as a first filing on 16 December 2018. EP-P was published on 17 June 2020. Application EP-P-DIV1 was filed with the EPO on 06 December 2019 as a divisional application from EP-P. A second divisional application from EP-P (EP-P-DIV2) was filed with the EPO on 06 November 2020. Today, EP-P is still pending. Some of the claims of EP-P-DIV2 contain subject-matter that was not originally disclosed in EP-P.

·         1. EP-P-DIV1 was not validly filed as a divisional application of EP-P, because EP-P-DIV1 was filed before the publication of EP-P.

o   FALSE – “any pending” - R.36(1)

·         2. EP-P will be regarded as prior art under Art. 54(2) EPC against EP-P-DIV2.

o   FALSE – divisional has same date as parent, and the extending matter has no date at all – Art.76(1)

·         3. For EP-P-DIV2 an additional fee as part of the filing fee for a divisional application of a second generation had to be paid.

o   FALSE – divided from same parent, so also a first generation (not filed from EP-P-DIV1)

o   See also Figure in GL A-IV, 1.4.1.1 showing EP2 and EP3 as first generation divisionals out of EP1

·         4. If EP-P was filed in Portuguese and translated into English, EP-P-DIV1 must be filed in English.

o   FALSE – may be filed in PT with translation into English later – R.36(2)

Q.4

Applicant A files today, 01 March 2021, an international application, PCT-A, with the EPO. PCT-A claims priority from the applicant’s European patent application, EP-A, filed on 27 February 2020.

·         1. The publication date of PCT-A can be postponed, if the claim to priority is validly withdrawn before completion of the technical preparations for international publication.

o   TRUE – R.90bis.3(d,e) PCT

·         2. For PCT-A to be considered as comprised in the state of the art under Article 54(3) EPC, it is sufficient that PCT-A is published in English.

o   FALSE – also need to pay filing fee - R.165 EPC 

·         3. If PCT-A contains 20 claims, claims fees shall be paid for five claims within one month of the date of filing.

o   FALSE – no claims fees for PCT (and entry is not filing)

·         4. The period for entering the European phase will expire on 02 October 2023.

o   FALSE - 27/2/20 + 31m (R.159(1) EPC) -> 27/9/22 (which is a Tuesday, but no calendar provided for 2022)

o   You would have wrongly concluded TRUE if you started from 1/3/2021 and would have had a 2023 calendar: 1/3/21 + 31m -> 1/10/23 (Sunday, but no calendar provided for 2023 either) [R.134(1)] -> 2/10/23

o    If you answered FALSE because you concluded on 1/10/23, you had the wrong reason and were lucky that the statement was also FALSE.

Note: no calendars were available for 2022 nor 2023, only for 2020 and 2021…

Q.5

The mention of the grant of the European patent EP-G was published in the European Patent Bulletin. Competitor B filed a notice of opposition against EP-G on the last day of the opposition period.

One month after expiry of the opposition period and following a request from the proprietor of EP-G to competitor Z to cease alleged infringement, competitor Z instituted proceedings for a ruling that competitor Z is not infringing patent EP-G.

·         1. Provided that the opposition proceedings are still pending, competitor Z can file an admissible notice of intervention within three months of the date on which the proceedings for a ruling that competitor Z is not infringing patent EP-G are instituted.

o   TRUE – Art.105(1)(b), R. 89(1), GL D-VII, 6

·         2. If the notice of opposition has not been signed by the opponent or by his representative before expiry of the opposition period, the opposition division shall reject the opposition as inadmissible.

o   FALSE – R.50(3), GL D-IV, 1.2.1(ii): you first get invited

·         3. Competitor B shall file a statement setting out for the first time the grounds of opposition within two months from the date of filing the notice of opposition.

o   FALSE – within 9m of Art.99 (Rule 76(2)), so on this same last day

·         4. If W files third party observations before expiry of the nine-month opposition period, W will be summoned to any oral proceedings taking place before the opposition division.

o   FALSE – W not a party if W only filed TPOs – Art.115

Q.6

A European patent application, EP-X, relating to invention X was filed in January 2020. EP-X includes two alternative embodiments: X1 and X2. Embodiment X1 is not sufficiently disclosed as essential technical information is missing. Embodiment X2 is sufficiently disclosed.

·         1. An objection from the examining division under Article 83 EPC can be overcome by restricting EP-X to embodiment X2.

o   TRUE – why not? Amendment overcomes deficiency

·         2. An objection from the examining division under Article 83 EPC regarding embodiment X1 can be overcome by filing additional technical information.

o   FALSE – application shall be enabled; adding tech info would violate 123(2); only informing examiner does not change the application (would work if it is enabled by the examiner considers not; here the question says it IS not)

·         3. If the missing essential technical information regarding embodiment X1 is present in the abstract, the essential technical information can be incorporated into EP-X as missing parts within one month from the date of filing.

o   FALSE – no such provision; also note that abstract is not part of application as filed for 123(2)

o   Note (added 02.03.2021, 8:00): although missing parts can be added within 2 months from filing under Rule 56(2) (at the cost of a redate) so that "essential technical information can be incorporated into EP-X as missing parts within one month from the date of filing", there is no link/relevance of that to the content of the abstract, so there is also no dependency on whether or not "the missing essential technical information regarding embodiment X1 is present in the abstract". Due to the lack of this link, we consider the statement to be False: a statement composed of multiple parts (an argument and a conclusion) can only be valid if both parts are correct and also the argument is in support of the conclusion.

o   [Update 2 April 2021 8:45:] The Examiner's Report does not address Rule 56, nor the relevance of the 1 month in the statement, nor does it address how to asses a statement with a condition (If ..., then ...; see the comments on the blog as to extensive discussions on how to assess such statements). The Examiner's Report only indicates:

"FALSE - The abstract is not part of the disclosure (Article 85 EPC) so including the essential technical information from the abstract would offend Article 123(2) EPC".

·         4. If the examining division does not raise any objection under Article 83 EPC, lack of sufficiency of disclosure will not be a valid ground for opposition against the patent granted on the basis of EP-X.

o   FALSE – oppo can be based in any ground incl insufficiency Art.100(b)

Q.7

The applicant Mr Y filed a European patent application EP-Y. In the summons to oral proceedings, the examining division objected to claim 1 of EP-Y as not having an inventive step in view of document D1 in combination with the skilled person´s common general knowledge.

At the oral proceedings before the examining division, the professional representative of Mr Y is accompanied by Professor N. The professional representative requests that Professor N is allowed to make oral submissions during the oral proceedings. Professor N is a well-known expert in the technical field of the patent application and has recently been awarded a Nobel prize for her work in that technical field.

Moreover, Professor N is accompanied by five of her students who also wish to attend the oral proceedings. Neither the presence of Professor N nor that of her students had been announced prior to the oral proceedings.

·         1. The students of Professor N may attend the oral proceedings as members of the public.

o   FALSE – exam div oral proceedings are not public - Art.116(3); GL E-III, 8.1

·         2. The EPC does not provide for the hearing of witnesses during examination proceedings.

o   FALSE – Art.117(1) allows it in any proceedings before the EPO

·         3. The examining division may admit auxiliary requests filed and signed by Professor N during the oral proceedings.

o   FALSE – professor N is not allowed to represent – Art.134(1)

·         4. Professor N has the right to make oral submissions during the oral proceedings, since she must be considered by the examining division to represent the “person skilled in the art”.

o   FALSE – he is an accompanying person and should have been announced in advance; whether he can speak is at discretion of the division - GL E-III, 8.5

Q.8

European patent EP-C was opposed on the grounds of lack of novelty and lack of an inventive step. The opposition division rejected the opposition. The opponent filed an admissible appeal against the decision of the opposition division. Appeal proceedings concerning European patent EP-C are currently pending.

·         1. A fresh ground of opposition under Article 100(b) EPC can now be introduced into the appeal procedure provided that the fresh ground is raised by third party observations under Article 115 EPC, even if the patent proprietor does not agree to its introduction.

o   FALSE – G 10/91, hn 3

·         2. A fresh ground of opposition under Article 100(b) EPC can now be introduced into the appeal procedure provided that the board of appeal considers the ground of opposition as prima facie relevant, even if the patent proprietor does not agree to its introduction.

o   FALSE – G 10/91, hn 3

·         3. A fresh ground of opposition under Article 100(b) EPC can now be introduced into the appeal procedure since the patent proprietor is party to the appeal proceedings as of right.

o   FALSE – G 10/91, hn 3

·         4. A fresh ground of opposition under Article 100(b) EPC can now be introduced into the appeal procedure provided that the fresh ground is raised in an admissible notice of intervention filed during the pending appeal proceedings, even if the patent proprietor does not agree to its introduction.

o   TRUE – G 1/94 (Note: GL D-VII, 6 hints to it, but is directed to first instance )

Q.9

European patent application EP-F has been filed in French and oral proceedings have been scheduled before the examining division. At the beginning of the oral proceedings, the professional representative requests to speak in English without providing for interpretation into French. He also requests that the minutes be written in English and declares that he is aware that, if both his requests are permitted, no interpretation and translation into French will be provided, neither for the oral proceedings nor for the minutes.

·         1. During the oral proceedings, the representative can validly file a new amended set of claims in English.

o   FALSE – R.3(2): amendments (which are to be submitted in writing) must be in language of proceedings, so French

·         2. The examining division may reject the request to speak English in the oral proceedings, even though English is an official language of the EPO.

o   TRUE – R.4(1): if the party/representative provides for interpretation, he has the right to use EN; else, it is at the discretion of the division R.4(4)

·         3. The examining division may agree to the request that the minutes be written in English, except for amendments to EP-F, which will be entered in the minutes in French.

o   TRUE (as far as the statements are spoken in English, and provided that the request to speak English was allowed) – R.4(6)

·         4. If the examining division agrees, the representative may make a part of his oral statements during the oral proceedings in Swedish.

o   TRUE – R.4(4)

Note: you can also use the various paragraphs of GL E-V to answer Q.9

Q.10

Applicant B validly files an international application, PCT-B, in 2019 without claiming priority and elects the European Patent Office as competent International Searching Authority (ISA). The European Patent Office is of the opinion that PCT-B does not comply with the requirements of unity of invention and relates to four inventions: B1, B2, B3 and B4. In response to the invitation from the EPO as ISA to pay additional search fees for B2, B3 and B4, applicant A pays additional search fees for B2 and B3 under protest and the protest fee is duly paid. Four months later, applicant A receives the International Search Report.

Note: the reference to Applicant B and later applicant A seems to be an error in the question: in our understanding, reference to a single applicant was intended in the question itself (only the applicant receives the ISR) and to the same applicant in the second statement (only the applicant of the parent can file a divisional). The question is only consistent if "Applicant B" is replaced by "Applicant A", such that all references are to applicant A. (The reference to PCT-B rather than PCT-A can be explained by the earlier reference to a PCT-A in Q.4). Our answers below are based on this correction.

[Update 2 April 2021 8:45:] The Examiner's Report was published yesterday on the EQE website; Q.10 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."

·         1. In order to receive a refund of an additional search fee paid in the European phase, the applicant must pay the additional search fee under protest.

o   [Update 2 April 2021 8:45:] NEUTRALIZED acc. Examiner's Report

o   FALSE – protest procedure only exists in international phase, not in EP regional phase

o   See also GL (2019) A-X, 10.2.2 and C-III, 3.3: examining division will, on request, review the justification for charging the search fee in its invitation under Rule 164(2) - no protest fee needed

·         2. If applicant A files a divisional application, EP-B-DIV, for invention B2 at the EPO, after PCT-B validly entered the European phase, the search fee paid for EP-B-DIV shall be refunded at 100%

o   [Update 2 April 2021 8:45:] NEUTRALIZED acc. Examiner's Report

o   FALSE – GL A-X, 10.2.1 + OJ 2019,A4, item 1.2a) : "full refund" but that is 84% for an international search with WO on a PCT application

o   *TRUE can also be argued if you considered applicant A to not be the same applicant as applicant B who filed PCT-B, and considering that neither the question nor the statement specified that the application has been transferred from applicant B to applicant A. The divisional would thus have been filed in the wrong name. The purported divisional application EP-B-DIV that is not filed in the name of the applicant B of the parent application EP-B will not be processed as a European divisional application (GL A-IV, 1.1.3), so that any fees paid will be refunded (GL A-IV, 1.1)

·         3. If the review body of the ISA finds that the protest was entirely justified, the additional search fees will be refunded but not the protest fee.

o   [Update 2 April 2021 8:45:] NEUTRALIZED acc. Examiner's Report

o   FALSE – protest fee also; R.40.2(c) PCT; GL/PCT-EPO A-III, 9.3 or B-VII, 7.2

·         4. If PCT-B has validly entered the European phase without any amendments to the claims, the EPO will invite the applicant to pay a search fee for invention B4 within a period of two months.

o   [Update 2 April 2021 8:45:] NEUTRALIZED acc. Examiner's Report

o   *TRUE if you assume that no amendments are filed in the R 161/162 period – R.164(2). We expect that this was the intended answer.

o   *But this ignores that the R.164(2) communication does not depend on what is claimed when entering the EP phase (i.e., specified under R.159(1)(b)), but depends on what the situation is at the end of the 6m period to (in this case, mandatory) respond to the R.161(1)/R.162 communication. So that:

o   *FALSE can be argued as well: as there is no indication as to where we are in time (inside or outside the R.161(1)/162 period), it will depend on whether it is no longer to file amended claims or whether it is still possible, and, if amended claims are filed, whether B4 will still be among the claims at the end of the 6m period of R.161(1)/162 and which form the basis for the examination as to whether a R.164(2) must be issued or not

o   *FALSE can be argued also by: as there is a non-unity, the applicant must file a response to the search opinion by commenting and/or amending. As the question does not indicate that such response has been filed, the application will be deemed withdrawn at the end of the R.161(1) period, so that no R.164(2) will be issued (unless remedied with FP etc).

o   Note: the 2 month period runs from the notification of the invitation

*Note: our original answer said True - R.164, but due to some valid arguments raised by some candidates, we added why FALSE can also be considered a correct answer [Updated the parts with the *; 5 March 2021]

Note: due to the randomization of the order of the statements, the order is a bit strange here… The third statement would be expected as the first as that is chronologically the earliest. Also, the first statement would be expected after the last, as those two statements are related - then, the risk that the additional fee in statement 1 would be mistaken as a fee payable in the international phase rather than the EP phase would be much reduced compared to the order presented above. Different candidates, who got the statements presented in different order, may thus have experienced different difficulty levels for this question.

As in the legal part, when you check your answers with ours, note that the order of the statements within a question may be different!

Please feel invited to comment!

Note: the legal part is discussed in our other blog post: here. 
First impressions and general comments can be posted here.

[Update 4 March 2021 7:15:] We have compiled a version of the paper, in English; it is available here. In our version, the sequence of the questions and statements corresponds to the order as was presented to some candidates; other candidates obtained the questions (in the legal parts) and the statements within a question (in the legal parts as well as in the claims analysis parts) in different order. The sequence/numbering of the questions in our version of the paper corresponds to that used in this blog post.

Our claims analysis answers are given below.

[Update 2 April 2021 8:45:] 
The Examiner's Report was published yesterday on the EQE website (Compendium); all our answers to Q.11-Q.20 correspond to the answers in the Examiner's Report, possibly except 12.3. No statements were neutralized in the claims analysis part, except possibly 12.3 (see below).

Part 3 - A glass composition for use as a photochromic lens

[Update 8 March 2021: added the claim sets]

QUESTION 11 -

Set of claims I, used in several questions:

I-1. A glass composition for use as a photochromic lens comprising:

silicon dioxide;

component A;

component M; and

component X.

I-2. The composition according to claim I-1 wherein component A is present in the composition in a content of about 10% to about 30% by weight.

I-3. The composition according to claim I-1 or claim I-2 wherein component A is selected from the group consisting of sodium oxide, sodium carbonate and boron trioxide.

I-4. The composition according to claim I-1 wherein component M is present in the composition in a content of 5% to 10% by weight.

I-5. The composition according to claim I-4 wherein component M is present in the composition in a content of 15% by weight.

I-6. The composition according to any one of claims I-1 to I-5, wherein component X is selected from the group consisting of compound alpha, compound beta and compound gamma.

I-7. The process according to any one of claims I-1 to I-6, wherein component M is selected from the group consisting of: lime, zinc oxide and alumina.

I-8. A process for manufacturing a photochromic lens from the glass composition according to any one of claims I-1 to I-7, which comprises the following steps:

(i) mixing components A and M together in a first vessel to obtain a first mixture;

(ii) heating silicon dioxide in a second vessel to an high temperature;

(iii) adding the first mixture from step (i) to the second vessel from step (ii) to form a second mixture;

(iv) adding component X to the second mixture;

(v) forming a photochromic lens; and afterwards

(vi) allowing the photochromic lens to cool to a low temperature.

I-9. A photochromic lens obtainable by the process of claim I-8.

11.1 Claim I-1 is limited to a glass composition which is only for use as a photochromic lens

    False: “for use as a photochromic lens” is to be interpreted as ‘suitable for use as’ but which allows other uses.

11.2 The protection of claim I-8 extends to the photochromic lens directly obtained by the process

    True: According to Art 64(2) EPC/Art. 28(1)(b) TRIPS, protection of a process claim extends to the directly obtained product by that process. A manufacturing claim is a process claim.

11.3 A photochromic lens which is identical to the photochromic lens of claim I-9, but which is not obtained by a process of claim I-8, falls under the scope of claim I-9

    True: Product-by-process claim. Here, the method steps are only used to define the properties of the product, but are otherwise not limiting.

11.4 Claim I-4 covers a glass composition for use as a photochromic lens, comprising silicon dioxide, sodium oxide in a content of 10% to 30% by weight of the composition, component M in a content of 5% to 10% by weight of the composition, and component X

    True: The claim does not specify features/limitations which are not present in the given glass composition (sodium oxide is an example (type of) of A)

12.1 Claim I-5 is clear

    False: Claim I-5 is dependent on claim I-4 which already limits M to 5-10% by weight. The additional feature of claim I-5 is thus contradictory with claim I-4.

12.2 Claim I-7 is unclear due to its dependency on claims I-1 to I-6

    True: Claims I-1 to I-6 are composition (product claims) and do not relate to a process; a claim stating “the process according to any one of claims I-1 to I-6” is thus unclear.

12.3 Claim I-8 is unclear due to the use of the term low.

"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]."

The Examiner's report argumentation is discussed in the comments to our "Results" blog (here). Please feel invited to contribute to the discussion there.

[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 12.3 (12.4 in the Examiner's Report) is FALSE.

Our original answer and notes:

    True: ‘low’ is an undefined relative term; in addition, the description does not indicate that ‘low temperature’ has a generally accepted meaning in the art.

    Note: the claim does not only use the term low" but also the term "high" so that it may argued that "low" is not a relative term as such, but relative to the other "high". But even when considering that, the claim is not clear to to the term "low": Refer to GL F-IV 4.6.2 "Clarity objections", which provides: 

"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." 

While the application does provide preferred ranges for a "high" temperature, there is not a single range or value mentioned of what would be a "low temperature". So, one cannot conclude whether "low" means less than room temperature, even lower, or just a bit less than "high" while still several hundreds degC (quite high), not even when considering the whole disclosure, such that the statement "Claim I-8 is unclear due to the use of the term low" (but not so much due to the term high) is TRUE. [Updated 17 March 2021]

12.4 Claim I-1 contains all essential features of the glass composition of the invention

    False: According to [009] of the client’s application, it is essential that the content of component M is between about 5% to about 10% by weight. This thus represents an essential feature.

13.1 D1 discloses a component X being selected from the group consisting of compound alpha, compound beta and compound gamma

    False: D1 does not disclose any species/examples of X. Disclosure of X as a genus does not imply disclosure of its species.

13.2 The subject-matter of claim I-1 lacks novelty over D1

    False: D1 shows the combination of A, M and X only as a selection from three lists (‘multiple list selection’). The specific combination is thereby not disclosed by D1.

13.3 The subject-matter of claim I-2 lacks novelty over Example 2 of D2

    True: D2 second example’s disclosure of 30% by weight of A anticipates the claimed end-point of the range of about 10% to about 30% of A.

13.4 The subject-matter of claim I-4 is novel over Example 3 of D2

    False: D2 third example’s disclosure of 7% by weight of M falls within the claimed range of 5-10%.

QUESTION 14

During examination the applicant files a new set of claims II to replace the originally filed claim set I:

II-1. A glass composition for use as a photochromic lens comprising:

silicon dioxide;

component A; and

component M.

II-2. The composition according to claim II-1 further comprising component X.

II-3. The composition according to claim II-2 wherein component M is not zinc oxide.

II-4. The composition according to claim II-2 wherein component A is present in the composition in a content of 10% to 30% by weight.

II-5. The composition according to claim II-2 wherein component X is selected from the group consisting of compound alpha and compound beta.

14.1 Claim II-3 is allowable under Article 123(2) EPC

    True: True, claim II-3 corresponds to claim I-1 but with an allowable disclaimer (‘not zinc oxide’) according to G2/10.

14.2 Claim II-1 is allowable under Article 123(2) EPC

    False: The claim omits component X but which according to [011] provides the photochromic characteristics to which the invention pertains; there is no mention X can be omitted in a glass composition for a photochromic lens; its omission is thereby not directly and unambiguously derivable from the application.

14.3 Claim II-4 is allowable under Article 123(2) EPC

    True: The combination of claims II-4, II-2 and II-1 corresponds to originally filed claim I-2.

14.4 Claim II-5 is allowable under Article 123(2) EPC

    True: The combination of claims II-5, II-2 and II-1 is based on originally filed claim I-6 when directly dependent on claim I-1 and claiming two of the three options (alpha, beta, gamma)

QUESTION 15

A further amended set of claims is filed during examination:

CLAIM SET III

III-1. A glass composition for use as a photochromic lens comprising:

silicon dioxide;

component A which is present in a content of 16% by weight;

component M which is present in a content of 5% to 10% by weight; and

compound alpha which is present in a content of 10% by weight.

III-2. The composition according to claim III-1 wherein component A is selected from the group consisting of sodium oxide, sodium carbonate and boron trioxide.

III-3. The composition according to claim III-1 or claim III-2 wherein component M is selected from the group consisting of lime and alumina.

15.1 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 photochromic lens, the colour of which is surprisingly more resistant to temperature changes than when compound beta or compound gamma is used

    True: D2 only discloses X in form of beta and gamma; according to [012], these do not have the advantageous effect of providing resistance to color changes due to temperature changes.

15.2 A combination of D2 and D3 could be used to validly attack claim III-1 for lack of inventive step

    False: D3 is Art. 54(3) and thus not part of the state of the art for inventive step.

15.3 D2 can be considered to be the closest prior art for claim III-3 because it relates to the same technical field, i.e. the field of photochromic lenses

    True(*): D2 is indeed from the same field; D1 is from a more remote field being glass compositions for bottles.

    (*) False can also be argued: see comment below

     [Update 2 April 2021 8:45:]
     The statement was not neutralized in the Examiner's Report. Only True was considered correct.

15.4 The objective technical problem to be solved by the subject-matter of claim III-1 with respect to D2 is the provision of a photochromic lens, the colour change of which is resistant to temperature changes

    True(*): This is indeed the technical effect of using alpha as X.

     (*) False can also be argued: see comment below.

     [Update 2 April 2021 8:45:]
     The statement was not neutralized in the Examiner's Report. Only True was considered correct.
     The Examiner's report argumentation is discussed in the comments to our "Results" blog (here).
     Please feel invited to contribute to the discussion there.

(*) Your answer to 15.3 and 15.4  may depend on whether you interpreted claim III-1 as in essence defining a photochromic lens, or rather as defining a glass composition which is a precursor to a photochromic lens (e.g., by still having to be manufactured from a glass composition, as defined by the preamble and step (v) of claim I-8). We more or less expect the intended answers to be ‘true’ . 
However, there are certainly good arguments to be made for ‘false’; in particular doe [015] clearly define that a composition is obtained from mixing components and that this mixture (the composition) is the formed into a photochromic lens: the lens can thus not be consider to be a composition, but is is made from a composition. It may thus be argued that the composition is rather a composition for use in making a photochromic lens or a composition for a photochromic lens, than as a composition shaped to be used as a photochromic lens. It would be like "a plastic used as a cup": such phrasing is unclear as to whether it defines a plastic usable to make a cup from, or as a cup made out of plastic.
Also see various comments posted to this blog w.r.t. 15.3 and 15.4. [Expanded 5 March 2021]

Part 4 - Protection device comprising a receiving part for receiving a tablet computer and a cover part

The following set of claims IV was filed together with the second European patent application. This set of claims IV will be used in several questions:

IV.1 Protection device comprising a receiving part for receiving a tablet computer and a cover part.

IV.2 Protection device according to claim IV.1, wherein the protection device comprises a hinge between the receiving part and the cover part.

IV.3 Protection device according to claim IV.1 or IV.2, wherein the receiving part comprises a flat base, preferably as shown in Fig.1.

IV.4 Protection device according to any preceding claim, wherein the receiving part comprises an elastically deformable means for securing the tablet computer within the receiving part.

IV.5 Protection device according to claim IV.4, wherein the elastically deformable means comprises four elastically deformable corners.

IV.6 Protection device according to any preceding claim, wherein the cover part comprises a flat and rigid section.

IV.7 Protection device according to any preceding claim, wherein 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.

16.1 Claim IV.7 defines that the cover part is divided along its longer dimension into three parallel sections that are respectively joined by parallel hinges, and which are foldable into a triangular prism shape

    False: Claim IV.7 misses “along its longer dimension”

16.2 Claim IV.3 meets the requirements of Art. 84 EPC

    False: Reference to a figure; the flat base could have been defined in words (see, e.g., claims IV.4-6) which means that a definition by reference to a figure is certainly not allowable.

16.3 A protection device comprising a receiving part for receiving a tablet computer and a cover part having two hinges between the cover part and receiving part falls within the scope of claim IV.2

    True: ‘comprises a hinge’ does not exclude the presence of two or more hinges

16.4 Claim IV.4 lacks clarity because of an incorrect dependency

    False: No problem with the dependency; the receiving part is already defined in claim 1.

17.1 D1 destroys the novelty of the subject-matter of claim IV.4

    True: D1 discloses a frame made of elastically deformable material as the receiving part (‘tablet computer held tightly therein’) and a cover part in the form of the folded flaps.

17.2 D1 destroys the novelty of the subject-matter of claim IV.2

    True: The bottom part of the shipping box can be considered as a receiving part (“flat base and four walls for receiving the tablet computer”) and the flaps as the cover part; the flaps are attached to the walls via hinges.

17.3 D1 destroys the novelty of the subject-matter of claim IV.6

    True: ‘according to any’ = OR claim. D1 is at least novelty destroying for claim IV.6+IV.1 (the broadest alternative) and thus novelty destroying for the claim. Namely, D1’s flat base is rigid and flat.

17.4 D1 destroys the novelty of the subject-matter of claim IV.7

    False: D1’s flaps (or other features) do not seem to be arranged as three joined parallel sections.

18.1 The subject-matter of claim IV.4 is novel over D2

    False: See [002] of D2: “Both the flat base and the peripheral wall deform elastically for receiving and securing the tablet computer in the receiving part”; this anticipates at least the combination of claim IV.4 + IV.1, i.e., the broadest claimed alternative.

18.2 The subject-matter of claim IV.7 is novel over D2

    False: See [004] of D2; while it is not disclosed that the hinges are parallel, this seems to be implied by the sections being arranged in parallel and joined by hinges.

     (*) True can also be argued: D2 [004] refers to Fig.3 in D2, but the figure shows 4 sections folded into a triangular prism whereas the description says three. You may consider this an error in a prior art document, and use GL G-IV, 9 to conclude that either the figure is correct and the text wrong (such that D2 shows a cover split into 4 sections rather than the claimed 3 so that the claim is new) or that multiple corrections of [004] and Fig. 3 are possible (such that D2 must not be taken into account, so that the claim is new).  See comments posted to this blog. [Added 5 March 2021]

"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. As this was not done in the amended claim [and those features are necessary to hold the table computer in the receiving part], the statement is FALSE."

"TRUE - 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."

Some candidates informed me that the individual Pre-Exam results are available in MyEQE now (31/3/2021, 15h)

A mock Pre-Exam under exam conditions will be available on 7 December 2021, based on the exam of 2019. See also here.

Note that the Mock Pre-Exam paper may not include calendars - you can take them from the Pre-Exam 2019 Compendium here.

Update 14/1/2022: Pre-Exam candidates have been informed by the EQE secretariat that: 

"A further mock flow is offered on 3 February 2022 between 9:30 and 17:30 CET under examination-like conditions to test your equipment and settings (e.g. camera and microphone). 
For those who have not yet done such a test, please note that this one is indispensable before sitting the EQE." 

(See below for the full message)

Note that the Mock Pre-Exam paper may not include calendars - you can take them from the Pre-Exam 2021 Compendium here.

You will not receive calendars with the actual Pre-Exam 2022. In the actual exam EQE 2022 the basis for calculating time limits are the days on which the EPO filing offices are closed as published in the Official Journal. Candidates are encouraged to have the closing days of 2020, 2021 and 2022 at hand during the examination, as wella s a list of Saturdays and Sundays in these years. No calendars will be provided with the examination papers. See here.

Please feel invited to post your experiences with the Mock and the platform, comments and tips as comments to this blog. It is appreciated if you use your name or a nickname in your post, for easy reference (you can use the Anonymous option and close the message with your name, or use the google account or name option).

The message from the EQE secretariat informing candidates about the Mock on 3 Feb 2022 (emphasis added):

"Please be informed that a further mock flow is offered on 3 February 2022 between 9:30 and 17:30 CET under examination-like conditions to test your equipment and settings (e.g. camera and microphone). For those who have not yet done such a test, please note that this one is indispensable before sitting the EQE.

This was the second online -EQE with the Pre-Exam being held in 4 parts, and with the questions almost fully being taken from the screen (only the description of the application and the prior art in the claims analysis parts were printable).

In the legal as well as the claims analysis parts, the order of the four statements of each of the questions was randomized, i.e., it was different for different candidates. 

Also the order of the questions was randomized in the legal parts (e.g., the sequence shown below was presented to one candidate, while another candidate reported getting what is shown below as Q.2 as the first question,), but not in the claims analysis parts.

During the exam, candidates had access to the EPO Legal Text pages, so including the full EPC Articles and Rules, Guidelines, GL/PCT-EPO, National Law Tables, Case Law, and the Euro-PCT Guide (HTML versions), but not to the PCT Legal Texts on www.wipo.int/pct/en. Access was to the live versions, so to the versions in force on 18 March 2022 (so not the version of 31.10.2021 acc REE/IPEE).

Candidates could access the exam in all languages, English, French and German.

The exam had a mix of topics (common and some less-common), with some surprising absences: no time limits, no remedies, no EP entry, no 71(3) acts, no priority. Entitlement was certainly unexpected for many candidates, as well as some elements of the appeal question and details on (late) fee payment under PCT.

Until 2019, we just provided a list of T and F's for the 4 statements per question, as all candidates had the same order of them in the paper exam. In view of the randomized order, we now also provide the questions and statements. If you check your answers with ours, note that the order of the questions and of the four statements from a single question may be different!!!

Please feel invited to comment!

Please do not post your comments anonymously - it is allowed, but it makes responding more difficult and rather clumsy ("Dear Mr/Mrs/Ms Anonymous of 18-03-2022 22:23"), whereas using your real name or a nickname is more personal, more interesting and makes a more attractive conversation. You do not need to log in or make an account - it is OK to just put your (nick) name at the end of your post.

You mYay also want to check the other blogs: first impressions and claims analysis

Pre-Exam 2022

Part 1&2 - Legal Questions (2x 70 minutes)

Part 1

Question 1

Francesca has filed a European patent application EP-F before the EPO. Francesca did not develop the invention which is the subject of EP-F. In drafting EP-F Francesca used information in Andrew’s laboratory notebook, without Andrew’s consent. EP-F was published in December 2017 and is still pending.

1. Andrew can validly request that EP-F be refused no later than three months after the decision recognising his entitlement to EP-F has become final.
2. Francesca can withdraw EP-F at any time from the date on which Andrew provides evidence to the EPO that he has instituted proceedings against Francesca seeking a decision that Andrew is entitled to the grant of the European patent based on EP-F.
3. Andrew can seek a stay of proceedings if he provides evidence that he has instituted proceedings against Francesca seeking a decision that Andrew is entitled to the grant of the European patent based on EP-F.
4. No renewal fee has to be paid during a stay of proceedings.

Our answers

1. T – Art.61(1)(c) + R.16(1)
2. F – R.15
3. T – R.14(1) 
4. T / F – this is a point under debate as Rule 14 is silent about the due dates for divisionals, but only mentions periods (esp. that of R.51(2)).
   GL A-IV, 2.2.3 “Legal nature and effects of the stay” says “Stay of proceedings implies that the legal status quo existing at the time of the suspension is maintained, i.e. neither the EPO nor the parties can validly perform any legal acts while proceedings are suspended (J 38/92)”. So, as no legal acts can be validly done, no legally valid payments can be done/required.
   GL A-IV, 2.2.4 says “As far as renewal fees are concerned, they continue to fall due during the period of stay.”.
   From combining those two GL paragraphs, it may be considered that renewals that fall due are deferred to the date of resumption as in the case of an interruption under R.142 (GL E-VII, 4; J 902/87 mut.mut.), so that they do not need to be paid during the stay.
   However, some legal texts provide that the renewal fee must be paid during the stay by either F or A, which appears to be at odds with the legal nature of the stay.
   [Update 15 April 2022:] The Examiners' Report provides:
   "FALSE: All periods other than those for the payment of renewal fees, running at the date of the stay of proceedings, shall be interrupted by such stay, Rule 14(4) EPC and Guidelines A-IV, 2.2.4: hence renewal fees must be paid even during such stay."

Question 2

Hans filed an admissible notice of opposition against European patent EP-1, which was granted with two independent claims, namely claim 1 and claim 2 relating respectively to two different parts of the patent. The only ground for opposition that he raised was lack of inventive step in respect of claim 1. The opposition is not filed against the patent as a whole, but only against claim 1. In particular, he argued in the notice of opposition that the subject-matter of claim 1 lacked inventive step over the combination of D1 and D2, both published before the effective date of EP-1. Theresa filed third-party observations during the pending opposition proceedings, arguing that claim 2 lacked novelty over D3, a Japanese patent application published before the effective date of EP-1.

For the following statements, assume that the right to be heard of all parties involved has been respected and no amendments have been filed during the opposition proceedings.

1. After the opposition division has considered Theresa’s third-party observations, the opposition division may revoke EP-1 based on lack of novelty of the subject-matter of claim 2.
2. If the opposition division considers that the subject-matter of claim 2 lacks inventive step over D2 in combination with D3, the opposition division may revoke EP-1 for lack of inventive step of the subject-matter of claim 2 over D2 in combination with D3
3. If the opposition division considers that the subject-matter of claim 1 is not sufficiently disclosed, the opposition division may revoke EP-1 because the subject-matter of claim 1 is not disclosed in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art.
4. If the opposition division considers that the subject-matter of claim 1 lacks novelty over D1, the opposition division may revoke EP-1 for lack of novelty of the subject-matter of claim 1.

Our answers

1. F – claim 2 not in extent, and extent cannot be broadened – G 9/91
2. F – claim 2 not in extent, and extent cannot be broadened – G 9/91
3. T – Art.114(1), R.81(1) & G 10/91
4. T – Art.114(1), R.81(1 & G 10/91

Question 3

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

A board of appeal …

1. … may exercise any power within the competence of the department which was responsible for the decision appealed.
2. … may decide in a three-member composition without a legally qualified member.
3. ... may base its decision on a fresh ground for opposition only submitted during the appeal proceedings without the consent of the patentee.
4. … may remit a case to the department which was responsible for the decision appealed for further prosecution.

Our answers

1. T – Art.111(1)
2. F – in any type of appeal, at least one legal member needed – see Art.21(2)-(4)
3. F – G 10/91 assuming there is no intervention during the appeal (An interventer may raise a different ground – G 1/94 -, but "if a fresh ground for opposition is raised by the intervener, the case should be remitted to the first instance for further prosecution unless special reasons present themselves for doing otherwise, for example when the patentee himself does not wish the case to be remitted" - G 1/94, reason 13).
4. T – Art.111(1)

Company A has filed a European patent application EP-A with the EPO. Company B has negotiated with Company A the transfer of European patent application EP-A to Company B.

1. The transfer of a European patent application becomes effective vis-à-vis the EPO only when it is published in the European Patent Register
2. The transfer of a European patent may be recorded in the European Patent Register during the opposition period.
3. It is possible to validly transfer EP-A from Company A to Company B only for the designated contracting states FR and DE.
4. The transfer of EP-A may be recorded in the European Patent Register at the request of Company B, upon production of documents providing evidence of such transfer and payment of an administration fee.

Our answers

1. F – R.22(3) effective as from date on which transfer requested, evidence provided and fee paid
2. T – R.85
3. T – Art.71
4. T – R.22

Question 5

Roberto and Mario are Brazilian citizens living in São Paolo, Brazil. They are the applicants for European patent application EP1, which has been filed today in Portuguese together with a French translation. EP1 claims the priority of a previous Brazilian application P1.

1. If EP1 is assigned to a British company, the language of the proceedings may be changed to English after registration of the transfer.
2. EP1 will be accorded by the EPO a filing date, only if the content of EP1 does not extend beyond the content of P1 as originally filed.
3. Roberto and Mario are entitled to a reduction of the filing fee.
4. If the French translation had not been filed in due time, EP1 would be deemed not to have been filed.

Our answers

1. F – G 4/08
2. F – Art.80, R.,40; only effect is that priority is not valid for the extra matter
3. F – not Art.14(4) persons
4. F – deemed withdrawn, Art.14(2)

Part 2

Question 6

Roberto and Mario are Brazilian citizens living in São Paolo, Brazil. They are the applicants for European patent application EP1, which has been filed today in Portuguese together with a French translation. EP1 claims the priority of a previous Brazilian application P1. It is assumed now that Roberto and Mario intend to file a divisional application EP1-DIV relating to the pending patent application EP1.

1. EP1-DIV may be validly filed with the EPO at the filing offices in Munich, The Hague and Vienna.
2. EP1-DIV may be validly filed in English.
3. EP1-DIV may be validly filed in Portuguese.
4. EP1-DIV must be filed within 12 months from the filing date of EP1.

Our answers

1. F – Not in Vienna - Art.76, R.36(2)
2. F – R.36(2): PT or FR
3. T – R.36(2)
4. F – R.36(1), any pending

Question 7

The dimethyl fumarate molecule (DMF) is known from the prior art in the following respects:

Document D1 discloses DMF as a biocide for the treatment of clothing, shoes and furniture against mould growth.

Document D2 concerns a patent which discloses DMF for the treatment of the skin disease psoriasis and of multiple sclerosis.

The prior art does not disclose any further disease that can be treated with DMF

1. The subject-matter of the claim “DMF for use as a medicament” in a European patent application filed today is novel over the above-mentioned prior art.
2. The subject-matter of the claim “DMF for use in the treatment of cancer” in a European patent application filed today is novel over the above-mentioned prior art.
3. The following claim wording is allowable in a European patent application filed today: “Use of DMF for the manufacture of a medicament for the treatment of cancer”.
4. The subject-matter of the claim “DMF for use in the treatment of skin diseases” in a European patent application filed today is novel over the above-mentioned prior art.

Our answers

1. F – D2 already shows DMF for a medical treatment
2. T – Art.54(5)
3. F – G 5/83 -> G 2/08, GL G-VI, 7.1
4. F – D2 already shows DMF for treatment of a specific skin disease

Question 8

Jan, a US national and resident of the USA, filed an international application PCT-J with the USPTO on 10 January 2022. On filing, Jan indicated the EPO as one of the designated Offices. The EPO was immediately informed of its designation.

The USPTO charges the late payment fee for a delayed payment of the international filing fee as allowed under the PCT.

1. If the international filing fee is not paid in due time, Jan can validly pay the international filing fee together with the late payment fee within a time limit of one month from the date of the invitation sent by the receiving Office.
2. A consequence of not paying the international filing fee with the late payment fee within the prescribed time limit is that the USPTO will notify the EPO as the designated Office that PCT-J is considered to be withdrawn.
3. Jan must pay the international filing fee to the International Bureau.
4. A consequence of not paying the international filing fee with the late payment fee within the prescribed time limit is that the USPTO will declare that PCT-J is considered to be withdrawn.

Our answers

1. T – R.16bis.1(a) PCT
2. F – 29.1(ii) PCT: IB informs dO
3. F – R.15.1 PCT: competent rO, so USPTO
4. T – Art.14(3) PCT, R.16bis.1(c) PCT; AG-IP 5.195

Question 9

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

1. A Japanese citizen resident in Japan may validly file a European patent application without being represented by a professional representative.
2. The EPO will accord a date of filing to a European patent application filed by an identifiable applicant using EPO Form 1001, even if the description is filed in Chinese.
3. If an international application contains no part which on the face of it appears to be a claim or claims, a date of filing will not be accorded to that international application.
4. If a request for grant is not filed on a form drawn up by the EPO, an application filed together with that request will not be dealt with as a European patent application.

Our answers

1. T – Art.133(2) EPC “other than in filing a European patent application”
2. T – Art.80, R.40; Art.14(2) EPC
3. T – Art.11(1)(iii)(e) PCT
4. F – Art.80, R.40; GL A-II, 4.1.1

Question 10

A communication pursuant to Rule 71(3) EPC has been issued for a European patent application. The applicant has fulfilled all the necessary requirements. The related decision to grant a European patent has been despatched on the basis of the documents (Druckexemplar) transmitted to the applicant with the communication under Rule 71(3) EPC. The mention of the grant of the European patent has been published in the European Patent Bulletin.

However, in the course of the preparation of the publication of the specification of this European patent an error arose, whereby page 2 of the description is missing in the published specification of this European patent. As a result of this error, the published specification of this European patent as a whole does not disclose the claimed invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art.

1. If the language of the grant proceedings for this European patent was English, a notice of opposition may be validly filed in German
2. To transfer the status of opponent to a different person during opposition proceedings, it is sufficient to file a declaration including the names, addresses and signatures of both the original opponent and the person wishing to take over the status of opponent.
3. The European patent could be revoked on the basis of an opposition based on the ground of Art. 100(b) EPC because in the published specification of this European patent the invention without page 2 of the description is not disclosed in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art.
4. This error in the published specification of this European patent may be corrected at any time.

Our answers

1. T – R.3(1), DE is off EPO language Art.14(1)
2. F – cannot freely transfer G 2/04
3. F – text of grant is decisive, not of erroneous B1 publ – GL C-V, 10 & H-VI, 6
4. T - GL H-VI, 6

The first claims part was about yoga mats and textile bags for completely covering and for transporting yoga mats. The second claims part was about sethod for preserving wine, or -more general- alcoholic beverages, in a bottle.

As in the legal part, when you check your answers with ours, note that the order of the statements within a question may be different!

Please feel invited to comment!

During the exam, candidates had access to the EPO Legal Text pages, so including the full EPC Articles and Rules, Guidelines, GL/PCT-EPO, National Law Tables, Case Law, and the Euro-PCT Guide (HTML versions), but not to the PCT Legal Texts on www.wipo.int/pct/en. Access was to the live versions, so to the versions in force on 18 March 2022 (so not the version of 31.10.2021 acc REE/IPEE).

Candidates could access the exam in all languages, English, French and German.

The exam had a mix of common and less-common claims analysis topics.

Please do not post your comments anonymously - it is allowed, but it makes responding more difficult and rather clumsy ("Dear Mr/Mrs/Ms Anonymous of 18-03-2022 22:23"), whereas using your real name or a nickname is more personal, more interesting and makes a more attractive conversation. You do not need to log in or make an account - it is OK to just put your (nick) name at the end of your post.

Note: the legal part is discussed in our other blog post: here. 

First impressions and general comments can be posted here.

Part 3

Question 11

1. The features of claim 11 imply a limitation of the dimensions of the textile bag.
2. A yoga mat consisting of poly-X is covered by the scope of claim 7.
3. The material of claim 5 is defined by means of a functional feature.
4. The subject-matter of claim 13 lacks clarity.

Our answers:

1. T – [001]: yoga mats have a standardized size – so the bag shall not be too small to cover such mat – GL F-IV, 4.14.2 covering sheet for …
2. F – in view of “consist”
3. T – “providing …”
4. T – the organic material is growing in an active way (even after a bad has been made from it?) & relatively slow growth has no clearly defined meaning

Question 12

1. The subject-matter of claim 2 is novel over D3.
2. A valid argument that the subject-matter of claim 4 is novel over D3 is that in D3 the first face is the face that is in contact with the athlete.
3. A valid argument that the subject-matter of claim 6 is novel over D2 is that in D2 the yoga mat is only partially coated with a layer of poly-X.
4. The subject-matter of claim 8 is novel over each of D1, D2, D3 and D4.

Our answers:

1. F 
2. F 
3. F – “has a” does not imply fully coated
4. T

Question 13

1. The subject-matter of claim 10 is novel over D1.
2. The subject-matter of claim 13 is novel over D2.
3. The subject-matter of claim 10 is novel over D2.
4. The present application indicates that a yoga mat made of poly-Y is more effective than a yoga mat made of poly-X or poly-Z in reducing sweat generation on the body of the athlete while the athlete is in contact with the yoga mat.

Our answers:

1. F – poly-Y [005]
2. T – fully organic
3. F – poly-Y in claim only preferred; poly-Z satisfied material features
4. T – [005], SRV of Poly-Y is 100, whereas it is 84 and 93 for Poly-X resp poly-Z

Question 14

1. A modified single claim 1 which reads “Yoga mat having a first face and a second face, wherein the first face has a coating of poly-X, the poly-X covering 100% of the first face.” would be allowable under Article 123(2) EPC.
2. A modified single claim 1 which reads “Yoga mat having a first face and a second face, wherein the first face and the second face contain silver ions.” would be allowable under Article 123(2) EPC.
3. A modified single claim 1 which reads “Yoga mat having a first face and a second face, wherein the yoga mat has an SRV of 90 or more.” would be clear under Article 84 EPC.
4. A modified single claim 1 which reads “Yoga mat having a first face and a second face, wherein the yoga mat has an SRV of 90 or more.” would be allowable under Article 123(2) EPC.

Our answers:

1. T – would be 1+5+6+9(max) w/o 5, but that is OK as poly-X (claim 6) is a "material providing secure but reversible adhesion of the mat onto the floor" (claim 5). I.e., the functional feature is limited to the specific poly-X
2. F – silver only described on second surface, not on both
3. F – secret protocol – [005]
4. T - [005], last sentence. But it would not be clear.

Question 15

1. In D2 and in the present application the material poly-X has essentially the same purpose.
2. The additional features defined in claim 8, whereby the second face of the yoga mat contains silver ions, has the technical effect of reducing bacteria growth.
3. The subject-matter of claim 13 solves the objective technical problem of providing an organic, sustainable yoga mat with respect to D1 as closest prior art.
4. The subject-matter of claim 14 is novel over D1.

1. T - provides secure but reversible adhesion of the yoga mat onto the floor
2. T – [004]
3. F – [006] very fashionable
4. F – D1 “because it is made entirely of poly-Y” implicitly discloses ‘Use of poly-Y in the production of yoga mats’

“Assume in the following that inventive step has to be assessed in respect of claim II.9.”

"There is a translation error in the German version [005] of the description, second line. It should read Poly-Y and not Poly-X.

Due to this translation error the Examination Board decided to award full marks to all candidates for questions 11 to 15."