Tuesday, 1 March 2016

Pre-Exam 2016: our (provisional) answers to the claims analysis part


Before checking your own answers with the provisional answers given below, please first check out on the blog post  First impressions of Pre-Exam 2016? for general questions and general comments about the Pre-Exam 2016 (English, French and German), and post your first impressions there. The Legal part is discussed in a separate blog post.

Our preliminary answers to the claims analysis part (not thoroughly reviewed, subject to typo's) are:

Q11  F, T, T, F
Q12  T, F, T, F
Q13  T, T, T, F
Q14  F, F, F, T
Q15  F, F, T(*), F
Q16  F, F, F, T
Q17  T, F, F, F
Q18  F, T, F, T(**)
Q19  T, F, F, F
Q20  T, F, F, T

Any different opinions are welcome! Please post your opinions as comments to this blog, so everybody can from the discussion.  Comments are welcome in any official EPO language. So, comments in German and French are also very welcome!

(** Update: although we remain divided on 18.4 we now lean towards 'True'  in view of the comments, so we have switched our answers in our 'preliminary answers')

Nico, Roel.

See onwards for our short comment on each answer.


11.1 F, claim I.1 is directed at a system comprising a container ('genus'), which would cover a container with a pouring zone ('species').
11.2 T, all claim features are present in the sauce pan of Fig. 1.
11.3 T, all claim features are present in the sauce pan of Fig. 2. Note that according to [011], the sauce pan of Fig. 2 also comprises a skirt (even with the sections of the skirt together not fully circumventing the lid).
11.4 F, claim I.1 is limited to a system comprising a container, whereas the statement refers to solely a lid which is suitable for closing a container.

12.1 T, all claim features are present in the sauce pan of Fig. 3, see in particular [015] describing the claimed bayonet-type securing means.
12.2 F, the embodiment of Fig. 2 comprises a circular opening 35 instead of a spout, see first sentence of [012], with [006] defining a spout to be a protruding lip.
12.3 T, although the opening for pouring in the embodiment of Fig. 3 is a spout, which is different from a circular opening (see [006], first sentence of [012]), the container still comprises a circular "upper" opening 70 which is suitable for pouring its contents.
12.4 F, claim I.1, on which claim I.6 depends, is limited to a system comprising a lid.

13.1 T, claim I.5 refers to "the" securing means, which is functionally defined in claim I.3 but not in claim I.1 or I.2 to which claim I.5 refers. Not only is the antecedent of the securing means incorrect, it also appears that the structural definition of claim I.5 depends on the general functional limitation introduced in claim I.3, in that claim I.5 does not specify that the securing means are "for securing the lid to the container".
13.2 T, according to [012], the opening 55 is suitable for pouring, namely when the lid is suitably rotated "in a pouring position".
13.3 T, according to [014], the dimension of opening 55 is greater than any of the performations of the straining section 45.
13.4 F, there appear to be no clarity issues with respect to dependency (unlike, e.g., claim I.5).

14.1 F, D1 has all claimed features when depending on claim I.1, including perforations 25 having the same size and releasable securing means 27, 12, see D1 [002], [003].
14.2 F, D1 has all claimed features when depending on claim I.6 and claim I.1. Note that the combination of claims merely refers to the container comprising a "circular opening" which reads onto the "upper circular opening of the container 1", see D1 [001].
14.3 F, D2 has all claimed features, see D2 [001], [002].
14.4 T, D2 does not disclose the container comprising a spout, which according to [006] is a lip protruding from the side wall.

15.1 F, claim I.11 is in part defined by reference to another entity, in that the size of the performations is defined with respect to the size of food pieces which are to be cooked in the container, which appears to be an unallowable reference according to GL F-IV 4.14 3rd, paragraph as the size of the food pieces does not appear to be standardized.
15.2 F, 'large' is an undefined relative term, see GL F-IV 4.6
15.3 T(*), by referring to another feature of the claim (rather than to another entity), the size limitation is clear in that one can easily determine its scope/infringement.
15.4 F, according to [002] of D2, D2's lid has two straining zones each having differently sized perforations, with the larger perforations allowing solid contents to be poured out and thus anticipating "an opening for pouring" as defined by claim I.10.

16.1 F, the lid appears to have been described as comprising perforations in the described embodiments and claims (see, e.g., claim I.1), which has been removed here and which removal appears to fail the essentiality test as the perforations provide the 'straining' function and thereby represent an essential part of the invention.
16.2 F, not supported by the claims as these, by way of claim I.1, always require at least two perforations, and does not appear to be supported by the description as filed either, for example, as the perforation is not limited to being in the skirt.
16.3 F, the 'nearest' support appears to be claim I.1 in combination with [016], with the latter however only disclosing an engraved arrow (species) and not 'pointing means' (genus). A disclosed species does not provide support under A. 123(2) for a genus.
16.4 T, appears to be allowable, based on the last sentence of [004] "The container 10 can further comprise a handle 20". Note that this is an intermediate generalization-type of situation, and thus the test of GL H-V 3.2.1 should be applied. Our feeling is that the intended answer is that it is allowable, as there is not much structural and functional relationship between the handle and the remaining features of the embodiment(s).

17.1 T, appears to match the effect given in [017], namely "keeping the lid on the container" when rotating in either position.
17.2 F, seems to be a technical effect of the holding means rather than of the lid being moveable around a vertical axis into the two positions.
17.3 F, the distinguishing feature should include the claimed position where straining is not possible, as in D3 straining is possible "in any seated position of the lid on the container", see D3 [002].
17.4 F, claim II.1 does not explicitly, nor implicity, exclude the sausepan from being a pressure cooker, in that it has no features wich render the sauce pan unsuitable as a pressure cooker; thus, this 'disclaimer'-like feature cannot be a distinguishing feature.

18.1 F, D1 is a kitchen utensil for washing vegetables which is different from a sauce pan, and thus appears to be more remote from the claim than D2-D4.
18.2 T, D2 appears to be similar in terms of field and purpose (e.g., "a sauce pan enabling easy straining of liquid"), while being closer than D3 by additionally providing a closed position, with D3 rather providing straining in "any seated position".
18.3 F, although D4 has holding means that appear to lock the lid to the container, see [001] of D4, D2 appears to be more remote from the purpose of claim II.4 than D2, as D4 is not described to address the straining of liquid from the container.
18.4 T(**), we are now leaning towards D2 as CPA for the same argument as provided for 18.2.

19.1 T, according to [007], the closed position (which is a distinguishing feature with respect to D3), "prevents for example boiling liquid from espacing through the spout 30" during cooking, which may indeed occur in D3 and which appears to be unsafe.
19.2 F, seems to mismatch the technical effect of the engraved arrow (being the only described species of the position indicating means) in [016].
19.3 F, for at least the reason that the claimed combination of "lid being vertically moveable into straining/closed position" (i.e., claim II.2, on which II.4 depends) does not appear to follow from the combination of D2 with D4. In fact, the straining mechanism of D2 appears to be incompatible with the locking mechanism of D4.
19.4 F, similar reasoning as for 19.3, subject matter of claim II.2 is missing.

20.1 T, this indeed seems to be a technical effect of the securing means, see [009].
20.2 F, the securing means is only defined to secure the lid in the straining position, not in the second position (the non-straining, cooking position).
20.3 F, the locking means in D4 are not used for securing the lid during straining, but rather to secure the lid during (pressure) cooking, which is a different purpose.
20.4 T, since the combination of D1 with D3 would have the claimed second position in which the liquid cannot be strained through the perforations.

(*) One may also argue that claim I.13 (and claims I.11 and I.12) misses essential features (see GL F-IV 4.5) which ultimately renders the claim unclear. For example, claim I.13 fails to define the opening in the container, e.g., a circular opening 35 or sprout 30. 
(**) We're particularly divided about this one - one may also argue D3 as CPA if one considers that the claim now defines the liquid being strained through a 'purposefully' provided opening of the container, which may render the claim closer to D3 (which uses a sprout) than D2.


Any different opinions are welcome! Please post your opinions as comments to this blog, so everybody can from the discussion.  Comments are welcome in any official EPO language. So, comments in German and French are also very welcome!


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 29-02-2016 23:57"), whereas using your real name or a pseudonym is more personal, more interesting and makes a more attractive conversation.

© Copyright DeltaPatents, 2016
All rights reserved. No part of this answer may be reproduced, used in any way for generating further course material or updates, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without written consent of DeltaPatents.The answer is made available for personal use only.

131 comments:

  1. The Pre-Exam 2016 paper is now available in all three EPO languages via the links in the opening paragraph of the blog.

    ReplyDelete
    Replies
    1. Is it known, when the EPO will send us the results?

      Delete
  2. Claim analysis was more difficult than last year and there are more gray zones. I do not understand why they providing such claims. This year the claims were made intentionally super weird.

    Anyways I agree with most of your answers - but I thing 18.4 should be T.

    I had as well some different answers to user questions, but based on your argumentation and being now in a more relaxed state - I can go with the rest of your answers.

    Depending on 18.4 I made 36 or 38 points ... so if I did not screw up the answer sheet, I guess I have passed - hopefully ;)

    ReplyDelete
  3. Thanks! Was the skirt an essential feature? I thought so and thus selected F for 13.4 and 15.3 also assuming that clear/clarity meant Art 84 in general. Any opinions?

    ReplyDelete
    Replies
    1. I totally agree with you. I also considered the skirt to be an essential feature and therefore Claim I.1 (and consequently I.10 and I.13) to be unclear. Any comments?

      Delete
    2. Hi David,

      Regarding 13.4, the statement is a reasoned statement, i.e., "lacks clarity because of its dependency" rather than "lacks clarity", full stop. Hence, I would argue that irrespective of whether the claim lacks essential features, one would have to consider whether the stated reason is a) true, and b) leading to a lack of clarity, which I'd argue is not the case. Anyway, 13.4 seems to be a bit strange.

      Delete
  4. On question 15, items b and c:

    "large" may indeed be viewed as unclear according to Guidelines (item B).

    Presumably "larger" than another entity (as in item 3) is more straight-forward as a comparison is set (item C).

    YET, the specification was not at all mentioning or defining this term. Instead (I do it from memory, I don't actually have the paper in front of me right now), it was using another term. The different terminology was also apparent in the DE and FR applications.

    Arguably, the use of the expression "larger than" is not supported by the specification, and may thus also be considered as unclear for that reason. Accordingly, I think there is some ambiguity there... It could reasonably be T or F.

    ReplyDelete
    Replies
    1. The description states in para [014] that the opening 55 is "of greater dimension than any of the perforations of the straining section". I think this would be considered to be broadly synonymous with "larger than", but cannot speak for the DE and FR terminoligies.

      Delete
    2. I have done it in French and French is my mother tongue.

      Arguably "large" may be interpreted as "bigger" (plus gros), as wider (plus large), as greater (plus grand); i.e. having a greater surface, circumference.

      I agree that it is "roughly" understand, but it is also a critical parameter for assessing the scope of the claims, and it is thus "roughly" or "hardly" clear to me. :)

      Delete
    3. Additional point:

      Still referring to the interpretation of "large":

      The Larousse (a reference dictionary) states on the meaning of "large": "Qui a telle dimension dans le sens opposé à la longueur, à la hauteur" (or translated in English: of whom the dimension is in the opposite sense by comparison to the height).

      Accordingly, "larger" (plus large) could also be understood as more specific than "greater" (plus grand).

      Delete
    4. Hi Nicolas,

      Good point, but probably not intended by the Exam (in fact, I personally would also consider the term to be supported by the description). Having said that, 15.3 is one of the questions were one may alternatively argue lack of clarity based on missing essential features, which wouldl lead to False as answer. See also our 'asterix'.

      Delete
  5. Thanks for putting these up so quickly!

    I largely agree, and the ones I disagree on I think you are probably right! However, one the exception is 19.1

    Claim II.4 relates to the "holding means which lock the lid to the container". I don't think this is related to the closed position as you state. In the embodiment of Figs. 1 and 2 of the client spec, the lid is not locked to the container in the cooking position.

    The "holding means which lock the lid to the container" is to provide a benefit as described in paragraph [009] of the client spec, i.e. "the user of the saucepan does not need to hold the knob of the lid manually when tilting the container during straining". I don't think this is related to safety, but more to ease of use.

    Pageflipper

    ReplyDelete
    Replies
    1. FirstCommenter1 March 2016 at 16:27

      Note [007] of the application, as indicated in the comments ("prevents for example boiling liquid from espacing through the spout 30"), which is certainly related to safety.

      Delete
    2. In my opinion, that is the subject matter of claim II.2 ("whereein the lid is moveable around a vertical axis into at least two positions, one position for straining liquid through said at least one perforation and one position where the liquid cannot be strained through the at least one perforation").

      The question concerns claim II.4, the subject matter of which is "holding means which lock the lid to the container".

      Pageflipper

      Delete
  6. FirstCommenter1 March 2016 at 16:24

    Thanks for the post and the comments!
    I do not fully agree with 18.4:
    D2 is regarded as c.p.a. for claim II.2. Claim II.3 depends on claim II.2, so that D2 starts with "advantage" over D3. The "opening for pouring" is also on D2 (top opening) as well as all features added by II.3, which are present in both D2 and D3. Thus, I cannot see how D3 now becomes "closer" than D2.

    ReplyDelete
    Replies
    1. This was exactly my reasoning. Due to the claim dependency I changed the answer to T at the last minute. Both D2 and D3 have a similar purpose, but in addition D2 has more structural features in common with the invention (the second pouring position, the locking means) whereas D3 has only one (the spout).

      Delete
    2. This was also my reasoning, so 18.4 should be True. Or at least accepted as well.

      Jay

      Delete
    3. However, in the case of D2, the liquid is strained only after having been poured through the top opening. Therefore, strictly speaking, it is not strained through said opening for pouring.

      Delete
    4. I also had 18.4 = T.

      Assuming that all the answers provided by DeltaPatents are correct I would sum up to 69 points. If this is the case, do I stand a chance if appealing this 18.4 case? Shit, this wasn't exactly the plan yesterday... Well, let's wait for the official results first.

      #Frustrated

      Delete
    5. Thanks for your comments, and see our update to our preliminary answers and the comments there.

      Delete
    6. FirstCommenter2 March 2016 at 10:54

      Glad that I convinced you! Hopefully the official solutions also see that...
      IMHO, gray-zone questions for c.p.a. such as 18.2 and 18.4 are not appropriate for the pre-exam (or even for the exam itself). If they ask for c.p.a. there should be a clear answer applying the established criteria. I believe that in practice both D2 AND D3 could be validly used as c.p.a.

      Delete
    7. I agree with Anonymous@10:14, the requirement "strained through" does not appear to be met in D2 imo.

      I also think 18.4 is F based on the structure of the question as a whole (I know this should not be a consideration, but I can't help but think along these lines): statement 18.2 asks whether D2 is cpa for II.2, most people seem to agree that this is True. Then statement 18.4 asks again if D2 is for cpa, but this time for claim II.3 which is dependent on II.2. I believe the intention here was for a candidate to illustrate their knowledge that the cpa can be X for one claim, but Y for a claim that is nevertheless dependent on that claim.

      Although overall I think both documents could easily be considered cpa, I still think the above was the intention of the question. I think they have erred by having two documents which could plausibly be argued to be cpa.

      I could see this being a question where both answers are ultimately accepted. It wouldn't be the first time...

      Pageflipper

      Delete
    8. FirstCommenter2 March 2016 at 11:37

      I agree with Pageflipper: I also thought the expected answer was F, intending to test whether the exam candidates know that different c.p.a. could be used for a dependent claim. Thus, I would not be surprised if the official answer is F.
      But I then realised that NONE of the added features in II.3 was missing in D2, so that I changed my mind. Indeed, it could be argued that the liquid is not strained "through the opening" in D2 but only afterwards. But applying such strict criteria, the same could be argued in D3, the liquid being strained immediately before the opening.
      Both answers should be accepted for 18.4.

      Delete
    9. Regarding CPA, I was wondering if you could comment on the following.

      In order to arrive at claim II.2 when starting from D3, a simple modification of the lid of D3 seems to suffice: the skilled person just has to provide the skirt of D3 with a solid section in which no openings are formed (i.e. omit some of the openings). On the other hand, although D2 does describe the notion of a closed position, the mechanism of D2 for switching between the closed position and the straining position is very different from the movement “around the vertical axis” as required by claim II.2. In order to arrive at the latter feature, the skilled person would have to thus make quite non-trivial modifications to the set-up of D2.

      Therefore, in terms of “most promising starting point”, one could argue that D3 is more promising than D2 since the technical gap to be bridged is smaller. I thought that this aspect would be more decisive than the question of which document has most features in common with the claim.

      Thanks, Steven

      Delete
  7. Should 12.1 be F? Claim I.4 recites "interlocking with" but this is not shown in figure 3, in which the lid and container are separate.

    ReplyDelete
    Replies
    1. I was wondering the same...I also had TRUE for 12.1.

      Delete
    2. This is a very literal interpretation of the question. I think it is clear that the lid and container of Fig. 3 are intended to be and would be interlocked. If the answer is F, then this would be somewhat of a "trick" question.

      Delete
  8. The same size of the perforations in passage [005] seems to me to be disclosed only for fig. 1. The person skilled in the art reads the passage [005] following to passage [004], which is relating to Fig. 1 only. There is no mention, that the relation to fig. 1 dissolved. So, passage [005] can be read as still according to fig. 1. In this case there is no disclosure of same sized perforations for figs. 2 and 3 in the publication, which is important for questions 11 and 12.

    ReplyDelete
    Replies
    1. I thought the same way - nowhere in the second and in the third embodiment can you find that perforations are of the same size...
      I think I will file an appeal on these questions...:).

      Delete
    2. Also, passage [005] begins with a certain article for "the" lid of passage [004]. So there is a link between passage [004] and [005].

      Delete
  9. Regarding Q 19.3, I agree that the devices of D4 and D2 are incompatible.

    However, to what concerns Q 19.4, I believe that the subject-matter of claim II.2 is disclosed by D3:

    a) The lid of D3 is movable around a vertical axis, cf. [002], 2nd sentence of D3, and can, therefore, be brought into at least two positions.

    b) In one (arbitrary) first position, (at least) one particular opening 11 (perforation) is aligned with the spout 7. That position is therefore suited for straining liquid through said particular opening.

    c) Now we rotate the lid of D3. The at least one opening 11 is not aligned with the spout 7 anymore; thus, liquid cannot be strained through this one opening in this second position. It is true that now liquid can be strained through one of the adjacent openings 11. But that is not excluded by claim II.2.

    ReplyDelete
  10. In regard to 19.3 and 20.3:

    I have marked 19.3 as T and 20.3 as F.

    In my opinion, the difference between 19.3 and 20.3 is that, when starting from D2 which already as, admittedly suboptimal, locking means, replacing the suboptimal locking means with the locking means of D4 is obvious: The locking means are taught in D4 for the same technical effect (i.e. locking the lid onto the saucepan). Therefore 19.3 is true.

    By contrast, in the situation of 20.3, when starting from D3, no locking means are present in the first place ("except" the users hands, which are of course no technical locking means). Accordingly, simply replacing one locking means for another (e.g. as with the one of D2 for the one of D4) is not possible. Therefore, the skilled person would not be motivated to combine D3 and D4 as the *overall* purpose of the locking means of D4 is different (locking when cooking instead of straining).

    ReplyDelete
    Replies
    1. The point of the locking means (skirt portion 42) in D2 is to lock the lid in the straining position. It is not clear, in my opinion, how one could use the peg-and-slot arrangement of D4 to lock the lid at an angle as shown in Fig. 3 of D2.

      Question 19.3 specifically says in the question "so as to secure the lid to the container when tilting the saucepan".

      Pageflipper

      Delete
    2. Dear All

      Regarding 20.3, I strongly believe the correct answer is TRUE.

      For 20.3 we need to establish who the person "skilled in the art" is. Evidently, for the purpose of 20.3 he is an experienced practitioner with saucepans. The area of improvement is the field of locking means for saucepans.

      There is really no obstacle for the skilled person when faced with the problem of the lid of D3 falling off to consider D4, where D4 is a perfect document to provide him with a solution to his problem of secure fixation of the lid. The problem is of the very same nature (and the statement 20.3 is even weaker, saying but "a similar problem") - there is no different "purpose", because the purpose of the locking means is to securely fix the lid. The only difference is that the pressure acting on the lid is different. However, this does not impede the skilled person, on the contrary, this is a promise of success: As the locking means are suitable even for a pressure cooker, then these locking means are certainly also well able to lock the saucepan of D3 when straining in an inclined position -> the skilled person can reasonably expect the desired result, namely secure fixation. So the incentive to combine is definitely there.

      (Moreover, there is no structural incompatibility which would keep the skilled person from combining the locking concept of D4 - which is provided in the skirt and the pegs - to the skirt of D3 and fixing the pegs to the container of D3... This is as straightforward as can be!)

      Best,
      Damaris

      Delete
    3. Hmm, but my learned friend said with respect to 17.3...

      "D3 only states that the lid may take "any SEATED position on the container". However it is silent on whether the lid is MOVABLE around a vertical axis.

      In fact, I have such an saucepan at home and indeed, the lid can take any seated position on the container. However, it is configured NOT TO BE MOVABLE around a vertical axis to prevent slipping (high friction impedes any movement around z-axis). So once placed in a specific position, you cannot move the lid anymore.

      As D3 is silent on whether the lid can be moved around the z-axis, I assumed this possibility NOT to be disclosed, as we should not make any assumptions about anything not unambiguously derivable from a disclosure."

      So which is it? Is the lid in D3 movable about the z-axis or not? It clearly needs to be movable for the locking means of D4 to operate... :-)

      Pageflipper

      Delete
    4. Dear Pageflipper

      I´d suggest that you thank your learned friend for the rest of your life because she inadvertently proved that 2 statements in this exam will have to be considered both TRUE and FALSE as one cannot be decided on either possibility... :-)

      How about that?

      Best,
      your learned friend

      Delete
  11. Regarding question 16.4, it has been proposed to be allowable based on the following comment:
    "T, appears to be allowable, based on the last sentence of [004] ''The container 10 can further comprise a handle 20''. Note that this is an intermediate generalization-type of situation, and thus the test of GL H-V 3.2.1 should be applied. Our feeling is that the intended answer is that it is allowable, as there is not much structural and functional relationship between the handle and the remaining features of the embodiment(s)."

    I think this one is quite difficult to judge unambiguously. I agree that we are dealing with an intermediate generalization-type situation here. However, I am rather inclined to consider the proposed amendment as unallowable under rule 123(2) for the following reason:
    Fig. 1 (as well as Fig. 2 and 3) relate to a saucepan while claim AI.3 relates to a system comprising a container and a lid. AI.3 also comprises a kitchen utensil for washing vegetables as discloses in D1. Although not explicitly state, I believe that there is funcional relationship between the handle and saucepan as it mainly prevents coming into contact with the hot container of the saucepan. This argument might be corroborated by the kitchen utensil for washing vegetables of D1 not having a handle.

    ReplyDelete
    Replies
    1. Hi Anonymous,

      Fair enough, it seems you arrived at a different conclusions given the same facts and legal test. This goes to show how it is not easy to divise an 'objective' test which always leads to the same results when applied to the same facts by different people.

      Delete
    2. Hi Nico,

      thanks for replying and for providing this blog.

      In view of said question, I thought about another legal issue which I am quite uncertain about:

      I consider the system comprising a container and a lid of AI.3 to lack support by the description within the meaning of Art. 84, as only a less general saucepan is disclosed.

      Even if one assumes that a "singling out" of the handle to be allowable: Would it then still be allowable under 123(2) to construct from such a feature ("handle") intermediate generalization type subject-matter which is not supported by the description (i.e. a "system" with a handle). Such an amendment might not only contravene Art. 84 but Art. 123(2) as well.

      I am not sure how to answer this question and don´t know whether there is any case law dealing with such a case.

      MK

      Delete
  12. With reference to 15.1 my reasoning for no lack of clarity of the perforations size (contrary to your assesment thereof) was the following:

    F-IV 4.14 recites: It may also be allowable to define the dimensions and/or shape of a first entity in an independent claim by general reference to the dimensions and/or corresponding shape of a second entity which is not part of the claimed first entity but is related to it through use. This particularly applies where the size of the second entity is in some way standardised. However, references to second entities which cannot be seen as subject to standardisation may also be sufficiently clear in cases where the skilled person would have little difficulty in inferring the resultant restriction of the scope of protection for the first entity. It is neither necessary for such claims to contain the exact dimensions of the second entity, nor do they have to refer to a combination of the first and second entities. Specifying the length, width and/or height of the first entity without reference to the second would lead to an unwarranted restriction of the scope of protection.

    In this instance, it seemed to me that the size of the perforations with reference to food size could easily be inferred by the skilled as there is only a limited number of ranges the food parts can fall within, depending on the kind of cooking the saucepan is intended for; it is clear that it will not have to filter microsized food particles nor steak-sized food chunks, and that the food parts will have sort of standardized dimensions resulting in maybe three or four different perforation sizes.

    Thank you for you great and fast work on providing these results to us.
    Alessandro

    ReplyDelete
    Replies
    1. Hi Alessandro,

      It seems you (correctly) considered the same GL references but, when applied to the facts, arrived at a different conclusion. Fair enough. However, I am a bit skeptical whether there is indeed only a "limited number of ranges the food parts" can fall within, and particularly, whether the endpoints of this range are clear enough to be unambiguously distinguished from the prior art (which may be w.r.t. D1-D4) but also for a potential infringer to determine whether he/she infringes. The latter seems difficult. How large may the perforations be so that he/she is certain that he/she won't infringe?

      Delete
    2. Dear Nico,

      I maybe misrepresented my reasoning, it seemed to me in the heat of the moment that this definition fell within what the skilled could infer and apply to the required circumstances without undue burden, the perforations shall be "suitable for straining rather than pouring"... a line has to be drawn somewhere otherwise we should define every tiny little thing in detailed measures etc etc

      In this instance I thought the situation was quite similar to the "bale to be wrapped example" in the GL.

      thanks for your reply and to the point reasoning
      A

      Delete
    3. Dear Alessandro,

      I was considering your rational (the food size being standardised) also during the exam but eventually decided against it because in my opinion, if food size is supposed to be standardised, there would have been a clear pointer in this respect in the description or the prior art (e.g "The skilled person is well aware that food to be strained only comes in certain size ranges, such as particles with a diameter from x (lentils) to y (broccoli).").

      Delete
    4. Of course you are both right and it seems that I let my jusdgement be clouded by my "common general knowledge" :-) . Still the case seems to me very similar to the bale to be wrapped example and possibly too ambiguous for a true or false kind of question. The food size is not exactly standardized but the definition in question seemed quite clear given the circumstances of use of the saucepan.

      Delete
    5. A perforation of 8 mm diameter could be a reasonable size for most food, but would fail for peas.
      A performation of 0.1 mm would be small enough for any type of food, but may not be usable as it gets cluttered too easily e.g. with soft-cooked broccoli and/or results in a too long straining time.
      A cauliflower is at least an order of magnitude larger than a pea.
      So in my view, defining perforation dimension relative to food size is unclear.

      Delete
    6. If you submit a comment as "Anonymous", please subscribe with your name or a nickname, so others can easily address you.

      Delete
  13. 17.1 T, appears to match the effect given in [017], namely "keeping the lid on the container" when rotating in either position.

    17.2 F, seems to be a technical effect of the holding means rather than of the lid being moveable around a vertical axis into the two positions.

    Hierzu möchte ich anmerken, dass diese technische Wirkung aus der Erfindungsbeschreibung nicht entnommen werden kann. Somit müsste der Prüfling sein eigenes Fachwissen in die Beantwortung dieser Frage einbringen. Das Einbringen des eigenen Fachwissens ist jedoch für das Bestehen der Prüfung an Sich, nicht vorgesehen.

    Zum Anderen bewirkt das Drehen nicht, dass der Deckel in der "Nähe" des Behälters bleibt, sondern Hierdurch wird das Einnehmen der einen der Beiden Positionen bewerkstelligt.
    In der Kochposition (KP) schliesst der Massive Teil des Kragens die Öffnung und verhindert somit das "Herauslaufen" von Flüssigkeit aus dem Schnabel & der Deckel lässt sich abnehmen. In der Siebposition (SP) liegt der Siebbereich (45) vor dem Schnabel und es kann "Abgesiebt" werden & der Deckel ist nun "fest" mit dem Behälter verbunden. (s.a. [007] bis [009]

    Somit ergibt sich für mich die Beantwortung für
    17.1 = F und 17.2 =T


    ReplyDelete
    Replies
    1. Hallo Anonymous,

      In der Praxis zeigt sich (leider) das technische Wirkungen in der EEP normalerweise schon aus der Erfindungsbeschreibung entnommen werden müssen, gerade ja weil der Kandidat sein eigenes Fachwissen in der Beantwortung der Frage nicht anwenden kann/darf und es sonst nicht möglich wäre die technische Wirkung eindeutig zu bestimmen.

      Delete
    2. A.F
      I agree with you for 17.1=T
      the technichal effect of rotating the lid is not keeping the lid in place but changing from strainning position to sealed position (see claim II.2).
      The technical effect mentioned by 17.1 is achieved by the securing means.
      Conclusion 17.1=F (1000000%)

      Delete
    3. I mean of course: "I agree with you for 17.1=T is false"

      Delete
    4. I totally agree that this is the reason why 17.1 should be False.

      Delete
    5. [017]: The lid 15 can be rotated in the cooking position and in the straining position while keeping the lid 15 on the container 10.

      17.1: A technical effect of the lid being movable around a vertical axis into the two positions defined in claim II.2 is to maintain the lid close to the container while moving the lid from the cooking position to the straining position.

      I think that the exam committee intended to play with word orders and wanted to see whether the candidates note the difference. When looking at claim II.2 it is in my opinion clear that the techical effect of the movable lid is to provide a position for cooking and a position for straining. Holding means of claim II.1 provide the technical effect of maintaining the lid close to the container. Thus 17.1 = F.

      Jay

      Delete
    6. I agree, 17.1 should be F.

      Delete
    7. I put T for 17.1 because being movable around a "vertical" axis between cooking and straining positions (e.g. as opposed to the horizontal axis of D2) does keep the lid close to the container.

      Delete
    8. Surely that's a difference between the invention and D2, but (hopefully) not recognized as a techical effect purposed by claim II.2.

      Delete
    9. Essential feature of the invention and problem solved is to be able to poor the content or strain the content without removing the lid. Tha's why the peforations and the opening on the lid (see description). Rotation allows changing the position from straining to pure pouring, as mentioned in the claim itself and the description.
      Differently, securing the lid is not an essential feature but optional. Thus even without the securing means, the vertical rotation is needed for switching between the straining and pouring.
      Consequently, 17.1 is unambiguously False to 10000000%.

      Delete
    10. Actually rotation of the lid in the straining position leads to the securing the lid at (the same time) and not for securing the lid it is turned into the straining position. In fact, (Optinally) there is a need to secure the lid to the container when straining the liquid therefore the securing means. thus firs ther is a need to rotate the lid to the straining position than it is thought about securing the lid, i.e. the rotation comes first, than securing comes second. The rotation comes independently of the securing means and method.
      Still someone doubting Q17.1=F !? Wondering why Delta patents still did not change the answer. Can you please comment on this?

      Delete
    11. Being maintained close to the container does not necessarily mean it is secured.

      Delete
    12. Stefano. I do not agree with 17.4 F. a pressure cooker must have no perforation except fo secure valve. The feature "lid provided whit at least a perforation for straining liquid" (the skirt is not yet mentioned in II.1) teaches away the skilled person from D4. In my opinion a perforated lid implicity not disclose a pressure cooker.

      Delete
    13. Vielleicht noch ein Gedanke hierzu:

      Absätze 8 und 17 offenbaren einen permanenten Kontakt. Der Deckel ist immer AUF dem Behälter. Nie als NAHE am Behälter offenbart. Zwischen Kontakt und Nähe besteht ein wesentlicher Unterschied.

      Delete
  14. With respect to question 17.1:
    I believe that [017] merely gives instructions on how to use the saucepan. There is no indication in [017] which may bolster the assumption that the "keeping the lid on the container" (see [017]) flows from the technical features of the saucepan as defined by claim II.2. Rather, this technical effect may only be achieved by the embodiment in Fig. 3 but not by the more general subject-matter as defined in claim II.2 which also encompasses the emobodiments of Figs. 1 and 2 (and possibly D2).

    ReplyDelete
    Replies
    1. FirstCommenter2 March 2016 at 11:24

      I also answered F for 17.1.
      IMHO, the feature "movable around a vertical axis into two positions" does not lead per se to the stated technical effect of maintaining the lead close to the container while switching positions. However, based on [017], I believe the people drafting the exam expect T as an answer, so the solution by DeltaPatents is likely going to be the official one.
      Anyways, it could be validly argued against it... I am curious to see if some candidate appeals for 2 point missing 17.1 (maybe combined with 18.4) and, if so, what the outcome of the appeal will be.

      Delete
    2. I would like to make only one comment concerning 17.3:

      D3 only states that the lid may take "any SEATED position on the container". However it is silent on whether the lid is MOVABLE around a vertical axis.

      In fact, I have such an saucepan at home and indeed, the lid can take any seated position on the container. However, it is configured NOT TO BE MOVABLE around a vertical axis to prevent slipping (high friction impedes any movement around z-axis). So once placed in a specific position, you cannot move the lid anymore.

      As D3 is silent on whether the lid can be moved around the z-axis, I assumed this possibility NOT to be disclosed, as we should not make any assumptions about anything not unambiguously derivable from a disclosure.

      Thus, I considered statement 17.3 to be TRUE, as it refers to "a" [partially] distinguishing feature of the claim II.2 w.r.t. D3 ("a" distinguishing feature not "claiming" completeness).

      Best,
      Damaris

      Delete
  15. I do not agree with 20.3.
    Securing the lid during pressure cooking is a similar problem to securing the lid while straining. The problem is simply "how to secure the lid on the container".

    ReplyDelete
  16. It seems I got 16.3 wrong. I realised that the "pointing means" was generalised with respect to the "engraved arrow". However, common general knowledge must also be taken into account, and to me it seemed evident that the skilled person would not perceive the "engraved arrow" as limiting features, because technically speaking such a limitation would be evidently useless. An engraved arrow is just as good as an engraved dot, a red sticker or any kind of indication, i.e. pointing means. I see now that I expected too much from the skilled person...

    ReplyDelete
    Replies
    1. When considering novelty, it is not correct to interpret the teaching of a document as embracing well-known equivalents which are not disclosed in the documents; this is a matter of obviousness. GL G VI 2 (http://www.epo.org/law-practice/legal-texts/html/guidelines/e/g_vi_2.htm)

      The concept of disclosure must be the same for the purposes of Articles 54, 87 and 123 EPC, as again confirmed by G 2/10 (see reasons 4.6), where the "directly and unambiguously"-criterion is called the "gold standard".

      In short: (Undisclosed) equivalents must never be taken into account when testing an amendment for compliance to Art 123(2) EPC.

      Delete
  17. Please help. Regarding 14.4, The spout was defined in the spec to be a lip protruding from the side wall - bit the rim around D2 is a protrusion from the side wall is it not?
    I know that a rim would not be conventionally interpreted to be a spout but are we not supposed to bring in any prior knowledge.
    I agonized over this point in the same and concluded that the phrase 'lip protruding from the side wall' would surely encompass the protruding rim of D2.
    Without any further definition of the spout how can D2 not anticipate the claim?

    ReplyDelete
    Replies
    1. Hi Matt,

      As the GL say, the general rule is that "Each claim should be read giving the words the meaning and scope which they normally have in the relevant art". However, in the exam setting, candidates are not allowed to use their own technical knowledge, so how can you know what the meaning and scope of a particular claim term in the relevant art is?

      As such, the exam normally gives you definitions so as to enable you to interpret the term such terms, either in the client's application or in the prior art. In this case, one would have to interpret a sprout as being "a lip protruding from the side wall", see [006].

      I think you cannot reasonably say that D2 discloses such a protruding lip.

      Delete
    2. Thanks for your response Nico. I do understand your point, and as I said I was agonizing in the exam because i feel like this is a point of construction that could be argued either way. I don't feel like this one is black and white.

      I had a picture in my mind of what a spout was, something like the picture of the present invention, but then the description seemed to describe 'spout' much more generally than what was shown.

      If candidates aren't allowed to use their own technical knowledge then they would look to the description to see how a spout is defined. I would be very interested to know why you don't think that D2 discloses such a protruding lip.

      Figure 3 of D2 shows a side-view of the container of D2. The side walls, designated 2 in the figure, are shown at the left and right of the figure. At the top of the side wall, for example the right-hand side wall, the wall clearly goes out to the right and then up. At the top of the wall there is a protrusion protruding out from the right, it then goes up a bit. Although this is not a'spout' as one would typically expect when thinking of a watering-can, for example, the protrusion of D2 (in between the alpha and '42' in this figure) is surely a lip protruding from the side wall of the container of D2. Depending on how 'lip is to be construed (from memory there is no clarification in the description) this is surely a a protrusion from a side wall which is suitable for pouring.

      Thanks again for responding. I really don't think that the answer to this question is black and white because I? think that the definition of spout in the description is broad enough to encompass any protrusion from any part of the side wall of the container. The 'L' shape at the top is also lip-like for me. I think a similarly broad construction is applied to 'circular opening for pouring' which i also agree with.

      Delete
    3. Hi Matt,

      Interesting observation - one could indeed argue that there is some kind of lip protruding from D2, but my feeling is that this interpretation of D2 is probably not intended by the exam committee (and thus not reflected in the intended answer to the question).

      So I agree that the answer isn't black and white, but unfortunately the answer and marking is (well, not black and white, but true and false), with this format unfortunately leaving little possibility to provide arguments which go against the prevailing view (even though they may have some merit).

      Delete
    4. Thanks for the reply Nico.

      I am hoping they will award both T and F for this (as they did last year). I am really not sure why they bothered to define 'spout' as they did in the description if the intention was not for D2 to anticipate the claim. In the absence of this definition I would not have said that D2 anticipates; but in my view they defined spout to be something slightly different to the meaning of the term in everyday use.

      Thanks again for the help!

      Delete
    5. It is sometimes a disvantage to be a native speaker, as you may have a specific interpretation or understanding if some subtlety that is not intended - and not in the definition in the paper (which is the the you should use).

      Delete
    6. Thank you for very much for your reply Roel but I do not understand your point; and I am not sure you have understood mine.

      The description defines spout and Article 69(1) EPC says the description (and drawings) shall be used to interpret the claims.

      The description defines spout as 'a lip protruding from the side wall for pouring.' The side wall of D2 has a protruding lip. It protrudes out (to the right) and then goes up. This is clearly shown in the side-view, see the top of the right-hand side wall of D2, there is a protruding lip suitable for pouring.

      Taking the definition in the paper - protruding lip from sidewall - D2 therefore discloses this feature.

      If you are not of the opinion that D2 anticipates the claim then how are you interpreting spout? The definition in the paper says 'a lip protruding from the side wall.' Using this definition alone, D2 discloses a spout, because it discloses a lip protruding from the side wall.

      This interpretation uses only the definition in the paper, and not any specific interpretation or understanding coming from being a native English speaker. (Actually the opposite is true - the normal English definition of spout is similar to a beak, very much looking like reference numeral 30 in the invention's figures, what the description does is define spout to be something different entirely). I actually interpreted the claim word contrary to my knowledge as a native English speaker, in accordance with Article 69(1).

      Thanks again for your help, I'd love to know what you think of this.

      Delete
    7. Hm, I do get your point now, and I misinterpreted your earlier comment.

      But I donot think what you refer to in D2 is a lip. The upper part of side wall 2 of Fig. 3 of D2 is extending away from / protruding from the wall all around the container - that is not a lip, but rather a ring. A lip has only a limited angular extension - in my understanding.

      (Btw, Art. 69 shall be used to interpret scope of protection - not to clarify an unclear claim: the claim shall be clear on itself.)

      Delete
    8. In my understanding (another native English speaker here), a "lip" does not require a limited angular extent, but a "spout" does since spouts generally have the purpose of directing fluid in a particular direction.

      J

      Delete
    9. Thanks so much for the reply Roel, I really appreciate you discussing this point with me.

      I wasn't trying to use Article 69 to clarify the claim - in my mind the claim is clear. I was using the description to interpret the claim, as per Article 69. The description offers a definition of the term so I used that to interpret the claim.

      (By the way, I am in complete agreement with your point if this was a real-life scenario and I was a patent attorney responding to an office action. But in the exam-scenario I thought we were supposed to not bring in any of our own understandings, so I completely understand you point about 'lip' but this definition does not come from the description so I did not use such an interpretation in the exam. I don't think the claim is unclear, but I certainly think the question is! Haha)

      Delete
    10. So the clear word "spout" is obscured by the wording "the spout 30 is a lip protruding from the side wall 25 for pouring out the content of the saucepan"?

      Oxford Dictionary gives:
      "spout (noun) 1. projecting tube or lip through or over which liquid can be poured from a container 2...."
      "lip (noun) 1 either one of two fleshy parts forming the edges of the mouth opening. 2 the edge of a hollow container or an opening. 3 ...."

      To me, the text of the paper seems to match the definition of a spout as given in the paper.
      Strangely enough the spout definition has no limited angular extension, nor does the (second) definition of lip.

      So... this would change the answer for 14.4 to F (not novel).

      Feels very comfortable, as it is contrary my understanding of "spout" and "lip".

      Delete
    11. Roel, Matt. I believe our original "common sense" interpretation of "spout" is correct and that we may have have started overthinking this.
      At the end of the day, I think we all know what a spout is and isn't - surely the rim around the circumference of a container cannot reasonably be considered to be a spout!

      J

      Delete
    12. I can't thank you enough for you time, Roel. Essentially, yes, this is why I thought 14.4 was F (not novel).

      Thank you again.

      Delete
    13. Hi Anonymous (J),

      Whilst I do not disagree with you, "the description and drawings shall be used to interpret the claims" (Article 69).
      Furthermore the Guideliens, F-IV, 4.2 state: "Each claim should be read giving the words the meaning and scope which they normally have in the relevant art, unless in particular cases the description gives the words a special meaning, by explicit definition or otherwise."

      In this instance we have an explicit definition in the description - regardless we of we might otherwise understand a spout to mean.

      Delete
  18. Hi,

    I would like to thank you guys from Delta Patents for the preliminary answers and comments, and a very good and useful feedback!

    I hope you can help me with the following. Now, I know that my mother tongue is completely article unfriendly, and I have problems with "a" and "the" even in every-day life when speaking English, but could you please explain me WHERE in the description of second and the third embodiment can you find that the perforations are of the same size? This fact is explicitly given only in the first embodiment and in relation to Fig.1.

    Going back to my "article issue", in the description of the third embodiment, you can see "a straining section" [014]. Why would "a straining section" relate to "THE straining section" in Fig.1 that has perforations of the same size??

    I thought we are supposed to be very careful not to make any false assumptions and to literally interpret everything in the claim analysis part. This is why I though it would be false to assume that the perforations are of the same size in the second and third embodiment.

    Please help, I feel desperate, I lost so many points in questions 11-13 because of that:(((.

    Thank you!

    Best regards,
    IG

    ReplyDelete
    Replies
    1. The same reference numeral (45) is used in each of the embodiments of Figs. 1-3 to designate the straining section. Is it not reasonable to assume that the same reference numeral refers to the same part? In this way, one can come to the conclusion that the perforations in embodiments 2 and 3 are the same as those described with respect to Fig. 1. Likewise, I assumed that the knob 27 and the handle 20 was the same on all three saucepans.

      I don't know if this has a basis in the EPC or Rules.

      Pageflipper

      Delete
    2. Thank you Pageflipper! I see your point. But then again, the openings in Figs. 2 and 3 have the same reference number (55), but it seems that these are not the same, or maybe i am missing something again :)??

      Delete
    3. That's a good point IG! I think the exam setters have perhaps been a little careless...

      Pageflipper

      Delete
    4. Also, in the description of Fig. 2 it is made explicit that the solid sections correspond to the same sections in Fig. 1, but no such statement is made about the straining section. My interpretation was that absent any other information, the size of the perforations could be the size, as well as different. So at least one -sub-embodiment' of Fig. 2 would be covered. I applied this reasoning only because such reasoning was applied (in my opinion) in one of the previous pre-exams.

      Delete
    5. *Meant could be the same size, as well as could be different.

      Delete
    6. Indeed, it feels that the exam setters did a bit of a sloppy job this time...and apparently not only regarding this ...

      I just wonder what did the whole point of the pre-exam become? To ask ambiguous and unclear questions, and then to accept all the answers? Hmmmmmmm...

      Delete
    7. I agree with pageflipper that the use of the same reference numeral (45) fir the straining section in all embodiments implies thatr they are (at least substantially' the same, and thus that the perforations therein are all of the same size.
      I however do not think it is careless that the openings in Figs. 2 and 3 have the same reference number (55), as these openings have the same function: in the pouring position, these openings 55 are placed in communication with the circular opening 35 resp the spout 30, and the dimension of the opening is greater than that of the circular opening 35 resp spout.

      Delete
    8. Hi,

      good points! I think however that the figures show all the exact same drawing for the perforations with the same reference number. In addition, in relation to fig.2, it refers to "the" straining section 45, making the link, IMO, with the description of the same part in embodiment 1. I agree that there is a doubt in relation to fig.3, as it refers to "a" straining section 45 but I thought that it was directly and unambiguously derivable from the figures themselves.

      In addition, from a EQE pre-exam point of view, if the perforations are not of the same size, I don't see the point in asking questions 12.1, 12.2, 12.3, 13.2, 13.3 as they would all be false in view of the same exact argumentation. Indeed, in all these questions, fig.2 and 3 would be always outside the scope of part I.1 of the claim refered to. This cannot be!? but there is certainly some unclarity here...

      Delete
    9. I also had doubts because they mention in the questions only the figures and not the embodiments themselves. If someone asks "is a saucepan as shwon in Fig.2 falls within the scope of claim...", are you supposed to take into account the description or only the figure itself !?

      Delete
    10. Regarding whether the perforations of the second and third embodiment are also of the same size (as explicitly mentioned in [005] for the first embodiment), I personally considered the Fig. 1 limitation also to apply to the other Figures based on the drawings showing the same sized pattern, the reference numeral being the same, and [011] referring to "the" straining section 45 and thereby implicitly to that of Fig. 1, and in general there not being any contrary indication.

      But I agree, there is some room for doubt since the Fig. 3 embodiment in [014] again talks about "a straining section", and ideally, the paper should explicitly indicate such facts.

      Of course, if there is 'room for doubt', one could argue (as you do) that the feature is not 'directly and unambiguously' derivable, but pragmatically in the exam setting, I think the signs sufficiently point towards the perforations being the same size, i.e., this being implicit.

      Delete
    11. I pondered at length wether this was a trick question because size measurements are not to be derived from the drawings... ended up going with your same reasoning.

      Delete
    12. 12.3 is false. in Fig.3 there is NOT any circular opening. Where do you see the circular opening??? Circular opening is a part of the container as it is written in I.6.
      The same argument for 14.2. I.8 is novel with respect to D1 because the container of D1 has not any king of opening, less than much less a circular opening!!! Where is a circular opening in D1???

      Delete
    13. 15.4: where do you see the opening of the lid of D2? Alpha is NOT an opening of the lid and it is NOT an opening of the container. Alpha is an opening between the lid and the edge of the container. 15.4 is true: I.13 is novel with respect to D2.

      Delete
    14. Dear Br3nn0S2,

      The container itself has a "circular upper opening 70" [004] which is suitable for pouring, namely for pouring the contents of the container (implicit). The claim does not define that the opening is specifically a straining opening (circular hole in the sidewall, sprout).

      Your comment regarding 15.4 seems to be addressed in our shorts comments above.

      Delete
    15. Dear All

      I would like to know your opinion on statement 12.3.

      Summarizing claim I.8 to the point I´d like to make:

      "A system comprising a container [...], wherein the container comprises an opening [...], wherein the opening is circular".

      In my view, the opening comprised by the container of Fig. 3 is NOT circular, because the spout is inevitably part of the opening of the container of Fig. 3, thus making the opening non-circular. Note that it is not a question of whether the RIM is circular. The rim and the opening may not be synonymously interchanged, because an opening is a SPACE through which you can pour something, reach trough, etc. A rim, on the other hand, cannot be regarded as a space.

      The spout clearly forms and functions as an opening (in functional terms it could even be argued that the spout is probably the most essential part of the opening, but this is just a side remark) and thus is to be regarded as an inherent part of the opening.

      If the opening of the container of Fig. 3 was to be CIRCULAR, one would have to structurally modify this container by hermetically sealing the part leading into the spout, so that the person working the invention of claim I.8 would be provided with a circular opening, i.e. an opening which is CIRCULAR IN EVERY PART OF THE OPENING.

      Otherwise, if the person wanted to pour liquid from the container over the entire 360 degrees, with regard to the part wherein the spout is located, he would not be able to have his liquid poured through a circular opening, because part of the liquid would inevitably take its way through the spout [as actually intended by the construction], thus taking its way through a non-circular part of the opening. This provides evidence that the opening is not circular.

      It cannot be that the saucepan of Fig. 3 first needs to be structurally modified in order to fall under the scope of claim I.8.

      What is your opinion on this?

      Best,
      Damaris

      Delete
    16. Hi Damaris,

      Unfortunately, 12.3 appears to be a bit of a 'trick' question in that you are of course absolutely right that a spout is not a circular opening. However, the rim of the container does define a circular opening (indicated as reference numeral 70, and literally referred to, albeit in the context of Fig. 1, as a "circular upper opening 70" [004]).

      The claim does not specify that the opening should be, e.g., in the sidewall, or that it is an additional opening for straining.

      Note that the functional limitation "for pouring" is very 'weak' as it includes any type of pouring. I'd argue (and I think the paper assumes one sees) that the contents of the container (e.g., the vegetables) can be poured through this opening 70.

      As such, the Fig. 3 container arguably does have a circular opening for pouring. Hope that helps.

      Delete
    17. Dear Nico,

      I disagree with your argument. The opening of a container cannot be the upper opening, because the contaier is NOT defined in english language as a closed cylinder, but a cylinder with an upper opening and a closed base. The opening of a container is an opening in the surface of the container, and cannot be the upper opening, because the definition of a container does contain undoubtedly the upper opening. In different case we do not speak about a container, but we speack about a closed case or a closed void cylinder, which are not a container in the common english language meaning.

      Delete
    18. Hi Br3nn0S,

      Maybe you're overthinking this? As you said, "the definition of a container does contain undoubtedly the upper opening", which means that the feature is present in the Fig. 3 embodiment and thus covered by the claim. Note that the claim does not say it is an "additional" opening, so it may very well be one that is implicitly always present.

      In any case, any 'dissenting opinions' is also what we would like to hear on this blog, so thanks for providing your arguments.

      Delete
    19. Dear Damaris,

      Firstly, I'd like to say that I answered F for 12.3, so I really would like to agree with your reasoning! However, I don't think I can.

      "In my view, the opening comprised by the container of Fig. 3 is NOT circular, because the spout is inevitably part of the opening of the container of Fig. 3, thus making the opening non-circular. Note that it is not a question of whether the RIM is circular. The rim and the opening may not be synonymously interchanged, because an opening is a SPACE through which you can pour something, reach trough, etc. A rim, on the other hand, cannot be regarded as a space."

      The upper opening of the saucepan is delimited by the rim. If the rim is circular, which it is, it follows that the space delimited by the rim, i.e. the opening, is also circular.

      "The spout clearly forms and functions as an opening (in functional terms it could even be argued that the spout is probably the most essential part of the opening, but this is just a side remark) and thus is to be regarded as an inherent part of the opening."

      I disagree that the spout forms a part of "the" opening. The saucepan actually has two openings: a circular upper opening and a second opening where the spout is.

      "If the opening of the container of Fig. 3 was to be CIRCULAR, one would have to structurally modify this container by hermetically sealing the part leading into the spout, so that the person working the invention of claim I.8 would be provided with a circular opening, i.e. an opening which is CIRCULAR IN EVERY PART OF THE OPENING."

      The upper opening is completely circular in shape, with no modification required. You can run your finger around the outside of the opening in a complete unbroken circle. That there is a second opening in the sidewall of the pan is irrelevant.

      "Otherwise, if the person wanted to pour liquid from the container over the entire 360 degrees, with regard to the part wherein the spout is located, he would not be able to have his liquid poured through a circular opening, because part of the liquid would inevitably take its way through the spout [as actually intended by the construction], thus taking its way through a non-circular part of the opening. This provides evidence that the opening is not circular."

      For me this is a bizarre requirement to impose on the opening. why must it be possible to pour throughout all 360 degrees of the opening for it to be circular in shape?

      Overall I think you have unfortunately fallen for a "trick" (as did I!) are performing some mental gymnastics to justify your answer after the fact. Did you actually go through this thought process during the exam?

      Pageflipper

      Delete
    20. Dear Nico, dear Pageflipper

      Thank you so much for your input and comments!
      Nico, if you allow me to make the following statements:

      Firstly, I only wanted to make an example with the pouring of liquid, not to in any way limit the claim by this. However, I realize one cannot discuss an example when one doesn´t get to the "root of the problem" - which I obviously missed out. I have not expressed myself clearly and concisely (thus "not in the spirit" Art. 84 :-) ), which I would like to make good now...

      Argument 1:

      Claim I.8 reads "[...] wherein the opening IS circular". "Is" in claim language imposes the same kind of restriction on an entity as "consists" or "made of". Thus, the statement "opening IS circular" restricts EVERY PART OF THE OPENING to be circular, or put differently, the claim EXCLUDES parts of the opening being non-circular.

      Question: IS the opening of Fig. 3 circular within the meaning of the claim (thus excluding any non-circular parts)?

      (Proof by contradiction:) Assumed the opening of Fig. 3 was circular, it could be surrounded from both the inner side as well as from the outer side by circles with a diameter so configured to close flush on the circular opening => cannot be, spout is in the way => spout obviously cannot be exempted from opening => opening not circular in the sense of the claim.

      Argument 2:

      Relying on the description as to identify a circular opening in Fig. 3 won´t help. Why that? Because [004] defines the "circular" upper opening 70 in functional terms, in that it can be closed by the lid (the latter comprising rim + skirt) -> complementary definition. The figures 1-3 reflect this by having reference 70 indicate the respective portion (please consider the drawings), namely that portion of the container containing a spout, and in fig. 3 also pegs. Even if you exempt the spout you still end up having defined a structure with a recess and a rim arranged perpendicularly on a part of the structure, altogether forming the "upper opening". This structure cannot be considered to BE CIRCULAR, this attribute should have never been mentioned in the context of the upper opening, since the functional definition as well as the indication by the drawings contradict it.

      Remark: The only well-defined circular opening in the application text is given by [012] with reference 35, as visualized in Fig. 2.

      Opinions?

      Best,
      Damaris

      Delete
    21. Damaris,

      I'm sorry, but this feels like grasping at straws. Claim I.6 states that the container "comprises" an opening for pouring. This does not preclude a second, non-circular, opening in the side, and requires only that said opening is suitable for pouring. The pan of Fig. 3 has an upper opening 70. This opening is clearly suitable for pouring, as the process of pouring pan contents through the upper opening 70 is described in paragraph [017].

      You keep trying to include the spout as a part of the upper opening 70. As I have stated before, the spout is part of a second opening in the sidewall of the pan. I do not see any reason why the spout must be considered to be a part of the upper opening 70, and so "cannot be exempted".

      Claim I.8 then further defines that said opening is circular. This is clearly the case for the upper opening 70, as it is described as a/the "circular upper opening". This is simply a description of the shape of the opening, not a "functional definition".

      Pageflipper

      Delete
    22. @Pageflipper:
      You have not read my statement on the upper opening 70 -> read the description, look at the reference 70 in the figures 1-3; the upper opening is a NON-CIRCULAR STRUCTURE, even if you exempt the spout and are left with the respective recess in the structure.

      If one cannot even consider the UPPER opening of the container - being a structure comprising also the side walls and a spout OR a recess for attaching the spout (because of the definition of [004], ref. 70 in all fig. 1-3) - to be circular, how much less can one hold that the OPENING (not just the UPPER opening) IS circular?

      The upper oppening is ill-defined w.r.t. to the description and drawings.

      xxx

      Delete
    23. Damaris,

      Believe me, I've read your statements - all of them - and I'm afraid to say I find them entirely unpersuasive. I'll leave it there as I believe I've said all I can say at this point.

      Pageflipper

      Delete
    24. Dear Pageflipper,

      Sorry, you are of course right when saying that the claim states "COMPRISES an opening for pouring = circular"...!

      Hmmm... I´m still at odds with the definition of opening... It should be broad = anything serving as opening, being suitable for pouring, and then you impose the constraint, namely that this "anything" (meeting the defined suitability) needs to be circular.

      "Pouring" according to e.g. Merriam Webster (which is probably the most accepted encyclopedia, generally referred to by U.S.PTO) is "to cause (something) to flow in a steady stream from or into a container or place".

      Thus, in order to be able to "pour", the opening needs to take a suitable angle of inclination.

      To me, that still implies that the opening according to the claim should enable the user to "pour" over the whole circle when applying an appropriate angle - and not to have part of the poured entity inevitably escaping over another path...
      Otherwise (in my opinion), the non-enabling part then cannot contribute to what you call "opening" meeting the defined suitability.
      This leaves only the enabling part to form the "opening", which then is non-circular...

      We will probably never agree on this :-)

      However, I´d like to thank you for your analytical assessment of this statement and your critical input!

      Delete
    25. Oooh, it's like scratching an itch. I can't help myself! (and incidentally, this is all in good humour - I find it particularly amusing since we both answered the same way in the exam!)

      I think the definition of pouring in the dictionary is by-the-by. It is explicitly stated in para [017] that the upper opening is suitable for "pouring" in at least one mode. Therefore, it surely satisfies that criterion.

      "To me, that still implies that the opening according to the claim should enable the user to "pour" over the whole circle..." - this really does not follow from anything you have said! The doorway to my office is rectangular in shape. It does not cease to be so because I cannot walk out of it along the ceiling!

      "We will probably never agree on this :-)"

      I have a feeling you may be right here though :-)

      Pageflipper

      Delete
    26. Hahaa I´d like to see you try :-)))

      ...Ough, now you want to compare your constraints which are only dictated by gravity to the constraints of the poor entity that is poured, being subject to gravity AND to the will of the user which chooses a suitable inclination angle...! ;-)

      Mock exercise with reference to the claim analysis part of 2013:
      (just for fun, I´m not expecting an answer...)

      If I presented you with a straight hollow tube, which I would have pre-prepared, so that the inside of it left but a labyrinth-pathway for the air to pass through and but a part of this pathway was straight, would you consider THE TUBE = A STRAIGHT AIR CHANNEL?

      Best :-)
      Damaris

      Delete
  19. Regarding 16.2, could the single hole designated 55 in Figure 3 of the spec not be the single perforation as required by statement 16.2?
    I thought that it would be possible to construe the opening 55 as the perforation of 16.2 and so this would not contravene Article 123(2).

    ReplyDelete
    Replies
    1. I completely agree and took the same approach in the exam.
      I would love to know what you guys think of this.

      Delete
    2. Same here!!! 16.2 = T

      Delete
    3. Wouldn't that extend the content of the application as filed, because the initial purpose of the invention is to separate solid content from from a liquid present in the cooked food? Opening 55 without other perforations (45) would not result the desired effect.

      Delete
    4. In my view not, as [014[, line 2-3 says that the opening 55 is of greater dimension than any of the perforations.
      So, the opening of the embodiment that would need to give the basis for this claim is defined to be something different than a performation.
      So, this gets me to F for 16.2

      Delete
    5. 16.2 suggested amendment adds matter and thus 16.2 = false.

      The straining section is an essential feature of the invention and the broadest disclosure of the invention ([001]) includes it "invention relates to a saucepan with an integrated strainer". The integrated strainer is solely disclosed to be in lid (e.g. [005]) and is stated to comprise "a plurality of perforations" ([005]) or "at least two perforations" (original claim). The opening (55) is an additional (and optional - not in embodiment 1) feature. Thus, stating the lid has "a" perforation is broader than the original disclosure which requires the straining feature and consequently adds matter.

      Delete
    6. Hi Anonymous@15.47

      Really appreciate your response, I now agree that 16.2 is false.

      Delete
    7. No problem Matt, enjoy your holiday :-)

      Delete
  20. Hi,

    I've got this response from the Exam committee, thought this might be interesting for many of you:

    "The results should be available on the EPO website the 3rd week of March 2016. We will send an email to inform all candidates of the exact date.
    You will be able to find your results by searching in the list for your EQE Registration number (EQEReg). This number is indicated on all mail correspondence from the Examination Secretariat.
    The dispatch of the result letters (legally binding) is foreseen for the end of March 2016."

    BR,
    Ivana

    ReplyDelete
    Replies
    1. Thank you so much Ivana! I can't wait to get my results back (hence all my commenting on this blog), and I'm sure it's the same for many other students.

      I take it 3rd week of March means the week beginning Monday 14th? I sure hope so!

      Pageflipper

      Delete
    2. You're welcome, Pageflipper!

      I do hope that in two weeks we are gonna know the results.

      And i hope that questions 15.3, 17.1, 18.4 and maybe even 5.4 will be "exceptionally" treated by giving points to everyone.
      Last year this was the case with three questions, hope the same happens this year.

      BR,
      Ivana

      Delete
    3. I would probably put money on true and false being accepted for at least some of those, with probably 18.4 being the odds-on favourite.

      I'm fairly confident that I have passed (touch wood!), as I have 84 marks according to Deltapatent's answers, and I cannot see the official answers differing THAT much from Deltapatents (last year I believe they were correct on 96/100). However, it must be torture for anyone coming in very close to the pass mark of 70.

      I think all I can say is that candidates must really nail the ones that are unequivocally "gettable", i.e. ones with a hard and fast answer (e.g. was the response filed on time, is further processing available on X date), to give sufficient wiggle room on the "grey area" questions.

      This really shouldn't be the case in an exam with True or False answers - they should all be unequivocal, of course - but we are where we are, sadly.

      Pageflipper

      Delete
  21. Again concerning 5.4:

    What I noticed is that in French and English, the wording is "a
    representative" and "un mandataire" whereas in German it is "DER
    Vertreter" which is in my opinion a significant difference because the
    definite article "der" should be understood as refering to Hassan but
    not to a "Vertreter" in general.

    Therefore my question to the DP experts:
    Does this linguistic difference - especially the reference to Hassan and
    the specific case - lead to a situation in which both T and F might be
    correct?

    Thank you for your answer!

    Regards,
    JoGi

    ReplyDelete
  22. Again concerning 5.4:

    What I noticed is that in French and English, the wording is "a
    representative" and "un mandataire" whereas in German it is "DER
    Vertreter" which is in my opinion a significant difference because the
    definite article "der" should be understood as refering to Hassan but
    not to a "Vertreter" in general.

    Therefore my question to the DP experts:
    Does this linguistic difference - especially the reference to Hassan and
    the specific case - lead to a situation in which both T and F might be
    correct?

    Thank you for your answer!

    Regards,
    JoGi

    ReplyDelete
    Replies
    1. Seems to be "the" cardboard all over again ;-)

      Delete
  23. Dear JoGi

    may you post this on the legal part? this is a interesting issue.

    regards

    ReplyDelete
    Replies
    1. Sorry, will now post it in the good forum...

      Delete
  24. Examiner's report is online:
    http://www.epo.org/learning-events/eqe/compendium/preexamination.html

    (congrats Delta Patents, I think you have 100 marks ;-)

    ReplyDelete
  25. Results are also online:
    http://www.epo.org/learning-events/eqe/statistics.html

    ReplyDelete
  26. Our answers are all the same as the answers in the Examiner's Report. (So far) all statements have only been awarded a single answer, T or F.

    See http://pre-exam.blogspot.nl/2016/03/pre-exam-2016-results.html

    ReplyDelete
    Replies
    1. I truly hope there is a chance for getting points for T and F for 18.4
      Then I`ll passed. At the moment I have 68 points..

      Delete
  27. Did anyone put a question on the German "eine" in 18.2 and 18.4? I just had a look at it again and saw, that the German version states "eine" for "a" and for "one" (eine vertikale Achse). IMHO, depending on what you chose you get to the sample solution or not. The English states "a vertical axis" and not "one vertical axis". While having the free choice and after reading the patent application, I would prefer to determine the German wording "eine vertikale Achse" as "one vertical axis". But in this case the sample solution would be wrong...

    ReplyDelete
  28. D 3/16, D 5/16 and D 7/16 are out: no changes w.r.t. 12.3, 17.1 und 17.4; 12.3, 17.1, 18.2, 18.4 and 19.1; and 12.1 und 12.3, 15.3, 17.1 und 17.4, 18.2 und 18.4.

    See http://www.epo.org/law-practice/case-law-appeals/recent/d160003du1.html,
    http://www.epo.org/law-practice/case-law-appeals/recent/d160005du1.html, and
    http://www.epo.org/law-practice/case-law-appeals/recent/d160007du1.html

    ReplyDelete