EPO Examination Board SNAFU?

The results for the European patent attorney qualifying examinations came out last week, to no great fanfare. Candidates will have seen the following in their personal results notification, which relates to Paper C (Opposition):
"For the European qualifying examination 2007, the Examination Board has exceptionally decided to award 10 additional points to the grade of Paper C of each candidate. The grade for Paper C displayed on this internet page already includes these 10 points. Due to this decision the result letters will not be dispatched on 08 August as announced but on 13 August 2007".
What this Kat (who is due to take his EQEs next year) would like to know is what could have caused this to happen. He learns that the pass rate for paper C was initially much lower than for previous years, and this may have had something to do with the arbitrary extra 10% awarded to everyone. More than this he is unable to say.

Do any of his readers have any comments to make?
EPO Examination Board SNAFU? EPO Examination Board SNAFU? Reviewed by David Pearce on Wednesday, August 15, 2007 Rating: 5


  1. There is much wailing and gnashing of teeth in my office - an explanation should (hopefully) be forthcoming from the EQE organisers.

    I know that some candidate felt harshly penalised with regards to inventive step arguments that did not start from the "correct" piece of prior art.......

  2. From the Examiner's comments, a very large number of marks were lost by the incorrect selection of closest prior art for the problem and solution approach on almost all of the claims. If you picked the wrong document, you got zero for any inventive step argument - since many of the claims only had an inventive step attack, you could easily have got zero for 3 or 4 out of seven claims.

    That, coupled with a rather nasty priority problem, probably led to a very low score for many candidates.

    I suspect the mark distribution was probably more 'twin peaks', with those picking the right closest art scoring a lot, and those missing it, scoring very few, rather than the usual normal distribution.

    A blanket award of 10 marks still seems most odd - if it was purely due to it being a tough paper, I would have expected them to simply modify the marking schedule. I guess there may have been an error somewhere too.

    Most odd.

  3. Bloke from my firm, still not qualified, but this year got a near perfect score on Paper C. Whatever the Exrs were looking for, he found it, right on the button.

  4. Yes, the priority issue was nasty. However, it is the over-excessive penalisation of candidates for the incorrect choice of closest prior art which leaves me most nettled.

    Fine, offer less marks than for the correct choice of prior art, but surely some marks for "use of information" and correct argumentation (even if coming from an incorrect starting point) should be offered?

    After all, wouldn't you run those arguments in a real opposition as a backup?

  5. I believe the pass rate prior to the 10 marks being added was 17% and after 25%. Even P6 is consistently between 35% and 45%. I understand that quite a few people will be lodging an appeal, so something should come out of it (an easier exam next year maybe??)

  6. Don't even get me started! I've very narrowly failed for the second year running when my arguments have been perfectly good, but have chosen the "wrong" prior art.

    The current Opposition paper examining board is a joke, and unfortunately they've got one year left to further damage my career progression.

  7. There was quite a big trick in this year's EQE paper C.

    One of the prior art documents (Annex 2) was a patent application by the proprietors of the patent to be opposed. It was filed before the priority date of the patent in suit, and published in the priority year. As it wasn't withdrawn etc.etc. according to Art.87(4) EPC before the priority date, it consitituted the "first application" for the invention, and priority could not be validly claimed for certain parts of the patent to be opposed.

    Although there was a pointer in the Client's Letter, it seems that a lot of candidates missed this trick; see Examiners Comments, point 3. I presume that to gain full marks required candidates to realise that the subject-matter of claims 1 and 7 was disclosed in Annex 2 (which in itself was not entirely obvious), to realise that Annex 2 was still pending on the priority date of the patent in suit and to discuss the consequences w.r.t. Art. 87(4). There were then novelty attacks on claims 1 and 7 using Annex 2. It seems that a lot of marks were riding on the priority issues and the two novelty attacks.

    If many people did not realise the relevance of Annex 2, they would have missed the priority issues and the subsequent attacks on claims 1 and 7. The Examiner's report is available on the EPO website.

  8. Stats are now on the EPO website - pass rate was 30% for all people sitting the paper.

    I think the paper and marking was harsh, but not improper. The priority problem didn't jump out at you, but surely priority is one thing you analyse extremely finely for oppositions. The selection of closest art was heavily penalised, but I think from the documents the right choice was clear and in line with EPO 'wisdom' on selecting closest art.

    A hard paper, but I don't think an unfair one.

  9. Yes, that was a nasty one, Edward.

    I was fortunate enough to spot that issue. However, (to put things in perspective) even that didn't save me from failure due to my "incorrect" choice of prior art for the inventive step arguments.

  10. I too spotted the priority issue and therefore got the novelty attack, but chose A3 istead of A4 as cpa and consequently failed. Even if lots of people appeal, I presume that the mark scheme (and hence result) is highly unlikely to be changed?

  11. Did anyone else notice from the statistics that *none* of the 54 candidates resitting the exam in full passed?!

    Personally I think the board should consider revising their marking scheme and offer to re-mark any failed Opposition paper accordingly.

  12. if you check the stats from previous years, there is never many candidates who resit the exam in full and pass them all. 1 out of 60 or 70 for each year from 2004 to 2006.

    Also interesting that the resitter pass rate for C didn't change much from 2006, although it did drop about 15% for first sitters.

  13. The link to the EPO website you need is http://www.epo.org/about-us/publications/legal-professionals/eqe-compendium/C.html. Paper C is a beautifully crafted examination problem but I can see why those sitting it under examination conditions missed some of the carefully set traps. I suspect a lot of people missed out on their use of information marks, by not carefully pointing out where everything was. I wonder if you lost those too if you were looking at the wrong piece of prior art. If anyone is appealing, I would suggest they claim their use of information marks even if it is the wrong prior art because that skill has still being tested.
    For those approaching the exam, it is as well to remember that each document/fact has been put into the examination paper for a purpose. Therefore, before launching into writing your script it is worth checking whether you're going to use each document and whether you're using any document too many times. For example, if you didn't use annex 4 at all, which could have been a consequence of choosing annex 3 as the closest prior art, it should have been obvious that you were missing something. In real life you don't get that help, so make the most of it in the exam.

  14. In response to the contributor who said the "even" P6 has a pass rate of between 35% and 45%, in, I believe, 1997 P6 had a pass rate of only 16%. Anomolously low pass rates happen from time to time, no comfort to those who narrowly missed out, but a fact of life.

  15. @filemot: Actually, I did still use A4, in combination with A3, as in the 'correct' answer, but just started from the 'wrong' document. So that check didn't help.

    One of my colleagues didn't spot the priority point but still got a very good pass mark - clearly the CPA point was the deciding factor. The paper itself was not that difficult (even with the sneaky priority point) - it is the marking scheme which makes it so.

  16. Looking at the paper it does look tough and I cant properly appreciated how difficult it would have been to do it under exam conditions.

    However if I was marking it I would have failed anyone who only used A3 as the cpa. The point is not that there is a better cpa (I think you could have passed only using the less preferable A5 if you answered very well) but that A4 is not a suitable starting point for psa. There is good section on the topic in the Case Law book at 1.D.3 and this falls exactly on point of what is not useable.

    A3 describes a cup designed specifically for cold liquids and works perfectly well at its job. It would never be obvious to adapt it to make it usable for hot liquids since that isn't its purpose. There is no problem that is addressed by the invention.

  17. Yeah, I can see and understand all of the above points. Still doesn't make me feel any better about spotting the priority issue and getting 47%!

    What annoys me is the lack of an explanation. Why a blanket 10 marks? Why not 13? Why not 8? It could be that they've shifted the average pass mark to a an average pass mark, or an acceptable pass mark. Who knows?! I'd just like an explanation, so I know if an appeal is worthwhile.

  18. Check this on the EPO site: http://documents.epo.org/projects/babylon/eponet.nsf/0/1D97551122B1A104C125734B004031FA/$File/EB_Remarks_EQE_2007_en.pdf

  19. What absolute drivel.

    Read the notice as: We couldn't stomach a low pass rate, we administratively fudged the results, we know we've cocked up but we can't really admit that so we'll try to appease the silly EQE candidates with this pseudo-explanation.

    Cretins. If they wanted a different pass rate they should have produced a revised marking schedule. There can simply be no argument on that point.

  20. I share everyone's sense of unfairness about the "zero marks for wrong C.P.A." issue. However, I'm very confused about the priority point. No-one seems to have questioned whether the Examiners applied the point of law correctly, so I assume you all agree with them, but I am keen to understand why priority is lost in these circumstances.

    I agree with Ed regarding the facts that A2 is the earliest application by the proprietors, would be citable against the opposed patent if priority is lost, and, once citable, it destroys the novelty of claims 1 and 7. However, there doesn't appear to be any discussion in the Examiners' comments or in this thread as to why A2 is the first application **for the same invention** as defined in claim 1.

    G 2/98, Reasons 8.2, states that the criteria to be applied in assessing whether the application-in-suit and the earliest application are in respect of the "same invention" (meaning that the priority document is not the "first application" for the invention) are the same as those applied when assessing whether the application-in-suit and the priority document are in respect of the same invention.

    These criteria include a "novelty test" - if the application-in-suit claims matter that would be novel over the priority document (including in the case of a "selection invention"), then the priority claim is invalid. However, it seems that the reverse is not necessarily true - as suggested by the President in section 3(v) of G 2/98, if a claim is broadened in the later application compared to the more specific disclosure of the priority document, the subject matter of the later application would "lack novelty" but nonetheless priority could not validly be claimed. I believe that this latter statement requires some moderation - if the priority document relates to something that would be considered a "selection invention" over what is claimed in the later application, then the two do not relate to the same invention and the priority claim is invalid.

    I note that an alternative way of looking at this is to consider whether the claims of the later application contain added matter over what is disclosed in the priority document (G 1/03 & 2/03, IV.B.1.1 & 1.2 of the White Book) - this should give the same result.

    T 134/94 (discussed in IV.B.2.2.2 of the newest White Book) is an example of a case where only a sub-set of the matter claimed in the patent was diclosed in the priority document, and the priority was held to be invalid. The priority document mentioned two limiting features as essential for solving the problem underlying the invention, and these two features were omitted from the claim. Thus, the inventions of the priority document and the later application were held not to be the same.

    In this year's paper C, claim 1 of the opposed patent related to a receptacle for hot liquids, comprising ... a grip area which is thermally insulated from the wall. A2 disclosed cooking utensils, e.g. pots & pans, with a handle that is thermally insulated from the main body of the utensil. However, the (subjective) problem to be solved by A2 was two-fold: to avoid burning your hand on the handle when the rest of the pan gets hot, and to avoid the practical inconvenience of a handle during use and during storage. The corresponding solution was therefore also two-fold: as well as the thermal insulation, the handle had to be detachable.

    To my mind, this situation is analogous to the one in T 134/94. Claim 1 of the opposed patent has been broadened significantly compared to the disclosure of A2:
    - It relates to any receptacle for hot liquids, not just cooking utensils
    - It relates to any grip area, not just handles
    - The grip area need not be detachable, unlike the handle. This, in particular, is described as essential in A2 but is no longer essential for claim 1.

    Accordingly, since A2 and claim 1 do *not* relate to the same invention, the priority document is the first application for the invention and the priority claim is valid.

    Please please can someone tell me what I am missing??! Thank you!!

  21. Regarding the comment of August 19th : "However if I was marking it I would have failed anyone who only used A3 as the cpa. The point is not that there is a better cpa (I think you could have passed only using the less preferable A5 if you answered very well) but that A4 is not a suitable starting point for psa. There is good section on the topic in the Case Law book at 1.D.3 and this falls exactly on point of what is not useable.

    A3 describes a cup designed specifically for cold liquids and works perfectly well at its job. It would never be obvious to adapt it to make it usable for hot liquids since that isn't its purpose. There is no problem that is addressed by the invention." I have to disagree. A3 provides two teachings: one that you can use waxed paper as a container for cold liquids; the other that a cardboard sleeve can be used to provide effective thermal insulation between the fingers of a user and a cup of beverage at some temperature other than blood heat. That second point is of course the same issue as is addressed by the subject matter of claim 1 of the patent to be opposed. The teaching re low temperature in Annex 3 is clearly solely connected with the choice of waxed paper as the material for the cup. There is nothing to suggest that the use of the cardboard sleeve is in any way limited to use in conjunction with low temepratures.This, coupled with the close structural similarity (the only difference between the subject matter of claim 1 and that of A3 is that the former is "suitable for hot liquids") means that A3 is a perfectly legitimate CPA - the problem to be solved being how to adapt the A3 art to be able to cope with hot liquids.
    Interestingly at a meetingin Munich last week with some of the exam committee for paper C the examiners eventually asserted (having initially stuck by the letter of their written comments) that they had only said that they had given zero marks because, in fact, not one of the 2000+ answer scripts had contained a plausible attack starting from A3. Funnilly enough none of the EPI or CEIPI tutors in the audience found that to be plausible!
    In the same meeting it became clear that the commitee did not really understand G2/98 - they had decided loss of priority based on the filing of A2 simply because claim 1 of A1 was anticipated by A2 - they had no idea that one has to establish that A2 is for the same invention as claim 1 of A1. Again, many tutors, including some who are Divisional Directors in the EPO in Munich, found that A2 did not concern the same invention as claim 1 of A1 - and hence that claim 1 did not lose priority!

    It was clear from the examiners' comments in the meeting that next year's paper C was written many months ago and that bouyed by the "success" of the closest prior art issue in this year's paper the examiners could not resist sticking the same type of problem into next year's paper C!

    The decision of the examination Board to cease the publication of candidates' answers in the EQE Compendium was strongly opposed by the tutors, but to no avail. It has been suggested that EPI will publish papers with the marks awarded (i.e. copying the marking schedule/breakdown that is returned with the paper. There is a risk that this proposal may be subject to some kind of political suppression. So some other channel of publication may be required.

  22. I couldn't agree more with the sentiment of the previous entry.

    Is anyone aware of an official CIPA and/or epi position on this matter?

  23. In my preparation for the C paper of EQE 2015, I have just tried 2007 and the Examiners evidently got it wrong in considering that claim 1 of the patent was not entitled to priority; claim 1 would certainly be considered to add subject matter over the disclosure in A2, which cannot therefore be the 'first application' for this claimed invention. Bit disconcerting to see the Examiners getting a fundamental point like this wrong.


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