Tuesday, 7 March 2017

Pre-Exam 2017: our answers to the toothbrush questions (claims analysis part)


The claims analysis part of the Pre-Exam 2017 (paper here: English, French and German) was about toothbrushes for human use.

The client's application described that a drawback of known toothbrushes is that the users need to be trained by dentists in order to achieve optimum dental plaque removal. Remaining dental plaque can give rise to dental caries, which is highly undesirable.
The invention is presented as being based on the surprising finding that the amount of dental plague removal can be increased by transmitting additional vibrations to the bristles of the toothbrush, generated by an electric vibrator inside the brush body, preferably in the handle together with a controller and a battery. The controller acts as a switching device for selectively supplying electric energy from the battery to an electrically operated element, because the controller connects and disconnects the vibrator from the battery.
Four embodiments are described and shown in four figures. In some embodiments, the controller uses a push button to turn on&off the vibrations; in other embodiments, a pressure sensor in the bristle zone is used. Some embodiments have a replaceable brush and a connection section to connect it to the handle. A LED can be incorporated to emphasize the technical character, which makes users think that the toothbrush has a higher cleaning efficiency.
The toothbrushes must have a length of less than 30 cm, or between 18 and 25 cm when having a replaceable brush head for ergonomic reasons.



Two prior art documents were found by you (D1, D2); two more prior art documents were found by the EPO (D3, D4):

  • D1 describes a tooth brush designed to make a user, particularly an adult, aware of applying an excessive force while cleaning their teeth, which can seriously irritate the gums of the user. It has a pressure sensor which transmits a signal to a controller. As long as the measured pressure is below a pressure limit value, the controller supplies energy to a green LED to inform the user the the brush does not harm his gums. If the measured pressure exceeds the pressure limit value, the energy supply is switched to a red LED. The toothbrush has a length of 24 cm.
  • D2 describes an improved toothbrush for children. The bodies of toothbrushes for children are generally made from thermoplastic materials, such as a list of four specific materials; the bodies are made from three specific materials (a second list). As long as a child hold the toothbrush in his hand, a sensor transmits a signal to a controller which energizes a music module. It plays a melody over a loudspeaker, the vibrations of which are converted intro vibrations of the air. Has a replaceable brush. A toothbrush for children must have a total length of 13, 14,15 or 16 cm (a third list) in order to allow small children to hold the brush.
  • D3 relates to toothbrushes for human adults, and aims to provide toothbrushes which prevent that dental plaque remains on the teeth. It is based on the surprising effect that the amount of dental plaque removal can be increased by transmitting additional vibrations to the bristles of the toothbrush. The vibrations are generated by an electric vibrator in the toothbrush. The location of the vibrator directly below the bristles is mentioned to be required for optimum transmission of vibrations to the bristles. It shows a toothbrush having a total length of 24 cm.
  • D4's opening paragraph describes that zoo keepers need to clean the teeth of dangerous zoo animals such as tigers and lions on a regular basis. It has been surprisingly discovered that toothbrushes keep zoo animals calm during dental cleaning. Thereby, the zoo keeper's risk of being hurt during dental cleaning of dangerous zoo animals is significantly reduced. The toothbrush shown has a replaceable brush head, a push-button allowing a controller to act as switching means for turning on/off a vibrator located inside the brush head below the bristles. The minimum total length of the toothbrush is 40 cm, or the brush head has a much longer neck, in order to establish a safe distance between the animal and the zoo keeper.
  • D4's last paragraph describes that a long brush with minimum total length of 40 cm can be used for other purposes (than cleaning the teet of dangerous zoo animals). In a second embodiment , the vibrator is located in the handle of the brush, whereby the vibrations are perceived as pleasant when the brush is used for scratching a human's back while taking a shower (with or without the lion?).

The dates of the application (filed 1 March 2014), and the prior art documents D1 (published Nov 2013), D2 (published October 2013), D3 (published Nov 2013) and D4 (published Nov 2013) are given: all prior art documents D1- D4 are full Art.54(2) prior arts, and thus taken into account for novelty as well as inventive step.

The questions were related to three claim sets:

  • Q11-13 to a first claim set composed of an independent claim and one dependent claim directed to a body of a toothbrush for increased dental plaque removal, 
  • Q14-17 to a second claim set composed of one independent claim and 4 dependent claims directed to a brush with a body comprising an electrically operated element, the electrically operated element being an electrically operated vibrator, 
  • Q18-20 related to one independent claim directed to a toothbrush with a body, [...], a connection section, the electrically operated element being an electrically operated vibrator, the connection section comprising a connection hole and a connection protrusion, and the toothbrush having a total length of between 18 and 25 cm.

Tested is scope of the claims, distinguishing features, novelty, claim feature issues such as "for example", extension of subject-matter including introduction of a disclaimer (not allowed, D4 is not an Art.54(3) -- here it became clear why the dates were given), technical effects, formulation of two-part form, inventive step aspects such as closest prior art (surprisingly few questions about CPA), considering to combine, obviousness of combination.

Our provisional answers:

11: T T T T
12: T F F F
13: T F F T
14: T T T F
15: F F F F
16: F F F F
17: T F T T *
18: T F T F
19: F T F F **
20: F F F F ***

Remarks:
17: Amending the independent claim may give rise to Art.123(2) problems in the independent claim itself, or to the resulting dependent claims. The question does not specify what is done with the dependent claims while amending claim II - so, it is assumed they are untouched, and a check is required whether they are effected by the amendment to the independent claim.
* 17.1: all embodiments show a push button together with a controller for selectively supplying energy from the battery to the electrically operated element. [004] reads "In the present invention, the controller acts as a switching means for selectively supplying energy from the battery to the electrically operated element", So, it seems to violate Art.123(2) when specifying that the push button does so, as it seems the the controller does the job. However, Claim II.3 filed with the application explicitly says that the switching means can be a push button. Thus, Claim II.3 limited to the example therein is exactly the proposed amendment, and thus not violating Art.123(2). There seem to be no Art.123(2) problems with the remaining dependent claims either. (Note that Art.84 objections may arise as an essential element -the controller- is missing, due to the conflict with [004], as well an an unclarity between newly amended II and II.4; also note that embodiment 3 is not covered the amended claim.)
17.4: [004] says "Preferably, the electrically operated vibrator is located in the handle together with a controller and a battery". In all four embodiments, the electrically operated vibrator is located in the handle, together with controller and a battery. so both need to be in the claim too. The battery was already in Claim II, but not specified to be in the handle, and the controller is missing, So, the amendment would indeed be an intermediate generalisation.

** 19.2: initially answered F as I considered the vibrator in the neck of D3 to hamper the combination with the connection section of D2 , as the electric cable would need to go across. (D2 would be combined with D3 to allow the user to replace a worn-out brush head). But as some candidates pointed out, embodiment 3, D3 and D4 see no problem in getting electrical cables across such connection. I change the answer to T (7 March, 15:20)

*** 20.2: Although it is tempting to combine the two embodiments and adapting the first embodiment (a toothbrush) to replace its vibrator in the brush head the vibrator in the handle as shown in the second embodiment, this combination is not suggested not is there another incentive, The argumentation depends on how to interpret the "one's" in the statement. If it means brushing "a human's teeth" then the statement is F for several reasons: the first embodiment of D1 relates a toothbrush but for zoo animals, not humans, and it has the vibrator in the brush head, not in the handle; the second embodiment relates to a brush for human use, with the vibrator in the handle, but that is not a toothbrush but a brush for scratching a human's back; they relate to different uses (animals vs humans) and the second embodiment relates to a long brush for different purposes (different from teeth cleaning), so there is no incentive to combine the two embodiments.  If the "one's teeth" includes non-human teeth, only the last argument remains.

We look forward for your comments.

Note: the legal questions are discussed here, and general impressions are here.

(c) DeltaPatents 2017

230 comments:

  1. This comment has been removed by the author.

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  2. I answered False in 18.1, because the effect of the hole and the protrusion is that they "do not hinder the transmission of vibrations to the bristles [007]".

    The effect of replacement of the brush head is, in my opinion, more linked to the feature: "wherein the neck is connected to the handle by means of a connection section", and thus not to the specific form of the connection section.

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    1. Good point.

      I answered false in 18.1 for a different reason: I thought the technical effect was "allowing the replacement of a [worn-out] brush head", rather than "replacement of the brush head".

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    2. I was also put off by the wording of "replacement of a brush head" instead of "allowing the replacement of a brushhead". I actually regarded the technical effect to be that the brushhead may be removed from the handle, which itself allows the brushhead to be replaced.

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    3. @Roel: What do you think?

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    4. Zoothbrush or backscratcher?8 March 2017 at 18:03

      I agree with this. Particularly because the question begins "According to the client's patent application", which only specifically attributes the effect that you mention in paragraph 7.

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  3. For 19.2, would the combination not be considered because you lose a complex device (the vibrator) if you replace the head? I considered that, but on the basis that D4 has that arrangement decided the EPO wouldn't buy it.

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    1. I answered true for this. I didn't see anything that suggested throwing away the vibrator was to be avoided or that including a cable in the connection section would be difficult. So I don't see why the combination wouldn't be considered.

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    2. 19.2 states that the skilled person would 'consider' a combination with D2. It does not state the skilled person would 'combine' with D2.

      Even if it is assumed the skilled person would not 'combine' with D2 because of a perceived incompatibility due to the location of the vibration element (which is arguable, especially in view of the disclosure of embodiment 3 in the application), this does not mean the skilled person would not have 'considered' D2. In order to decide that these documents cannot be combined, the skilled person would have to consider the disclosure as a whole.

      A distinction is drawn between consideration and combination in the guidelines G-VII, 6.

      "whether the content of the disclosures (e.g. documents) is such as to make it likely or unlikely that the person skilled in the art, when faced with the problem solved by the invention, would combine them - for example, if two disclosures CONSIDERED as a whole could not in practice be readily COMBINED because of inherent incompatibility in disclosed features essential to the invention, the combining of these disclosures should not normally be regarded as obvious"

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    3. I just changed our answer to 19.2 to T in view of the arguments given above as well as another discussion threat on this page.

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  4. Agreed for pretty much everything.

    I put F for 18.3 because I reasoned that the technical effect is increased plaque removal, rather than simply transmitting vibrations. I struggle with the technical effect etc bits of past papers so might just be that I answered the "wrong question".

    I thought that D4 was the closest prior art (as opposed to D3 which I assume you chose) because the length seemed a less significant difference than the lack of replaceable brush head in D3. However on reconsideration I missed the fact that D4 only teaches vibrations for soothing the animal, and not for increasing plaque removal, so I think that you are probably correct and D3 is the closest prior art.

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    1. I also considered D4 as closest prior art. Claim III is silent regarding the effect of the vibrations. Also it doesn't claim a toothbrush for humans...
      Apart from that, I agree to the above answeres.
      Thank you very much for providing your solutions!

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  5. In questions 11 and 13, the fact that the claims mention a "Body for toothbrush" and not a "toothbrush" doesn't impact the answer ?

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    1. The body for a toothbrush is suitable for use as a toothbrush and so would encompass the toothbrushes

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    2. I figured that because the claims were definitely unclear (body for a toothbrush yet the body is defined to be a toothbrush), you have to interpret them in a broad sense.

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    3. [002] Toothbrushes comprise bristles which are joined to a brush body.

      So, the body is the toothbrush without the bristles.

      So, a claim to a body has such bodies in its scope, as well as such bodies with additional product features, so, also bodies with bristles.

      So, in principle, yes, there is a difference, but I did not consider it of relevance to the statements.

      When checking again, I had some doubt whether there is an effect on 13.4, but as 13.4 refers to "toothbrushes in which...", it has not and its answer is T

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    4. I answered false to all of Q11, but was 50/50. I thought it strange that they specifically worded the set of claims in terms of a "body suitable for a toothbrush", and then worded the question saying something like does claim 1.1 cover a toothbrush according to the first embodiment". I considered it did not because the claim is covering a body suitable for a toothbrush, and not a toothbrush per se. I appreciate a claim to the body seems to be broader than a claim to the toothbrush, but it just seemed to be worded a bit strange to me.

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    5. @Unknown: I feel sympathy for your argument. It would however also be strange if all 4 statements are False because all toothbrushes have bristles and the claim does not. One would not need to check any other claim feature / embodiment feature. Maybe not a strong argument, but these kind of considerations sometimes help when in doubt.
      I had a similar doubt with the "the neck is connected to the handle", whereas 2 of the 4 embodiments have a neck that is connected to the handle only when in the engaged position but it can also be disconnected / disengaged. But the text uses "fixedly connected" and "unitary body" in e.g. [006] if they want to indicate that the elements cannot be disengaged. So I concluded that "connected" includes both options: fixedly connected and engageably connected.

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  6. For 17.1, the push button is always described as located in the handle. It seems to violate Art.123(2) when specifying that the body (and not the handle) comprises a push button ??

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    1. Also thought so!

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    2. I also thought this and answered F, however the claims were filed with the application so I think Delta are correct.

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    3. 17.1 was quite a puzzle. I initially said T to 17.1, but did not feel at ease. Then a colleague argued it should be F, as the push button always came with the controller. Which is correct, except for the the "for example" in II.3... we then agreed that the answer is T.

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  7. What is your reason for not considering the features mentioned in 16.2 and 18.4 as being distinguishing features?

    Question 19.2: why would a skilled person not consider the connection section of D2?

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    1. Bertrand of Rijswijk7 March 2017 at 13:54

      For 18.4, I guess that's because the music module emits vibrations (see description para. 3), and thus can be considered as an electrically operated vibrator ?

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    3. Mêmes remarques pour moi à 16.2 , 18.4 et 19.2 !

      16.2 : cela implique des caractéristiques implicites "pour usage humain", notamment la taille de la brosse à dents, le matériau... ce qui différencie de D4.

      18.4 : dans D2 c'est un module haut parleur, et pas un vibreur.

      19.2 : voir [004] de D2 qui décrit la caractéristique et son effet sans ambiguïté, la combinaison de D3 et D2 n'est pas improbable non plus.

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    4. Bertrand of Rijswijk7 March 2017 at 13:56

      16.2 : The brush of D4 is also designed to scratch a human's back, therefore it is also designed for human use.

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    5. I agree with you on this one, thanks :)

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    6. I don't think the expression of "a loudspeaker, the vibrations of which are converted into vibrations of the air" would make a loudspeaker a vibrator, as in this case the vibration to create sound waves is in the molecular level (I'm not an expert in this field. Please correct me if I am wrong). I thought said expression was written intentionally to mislead the reader. Therefore in my opinion 18.4 should be Tule.

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    7. 19.2: D3 has the vibrator in the bristle zone. So if you use the connection hole etc of D2, you break the energy supply line to the vibrator. In other words, D2's solution is incompatible with D3 as starting point.
      A weaker argument: D3 is directed to toothbrushes for adults, D2 for children - so need to change to a neighbouring field when deciding to use D2 to solve a problem of D3: is possible, but needs special attention.

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    8. 19.2: The only reason I could think of for *not* combining D2 with D3 is that D3 has a vibrator in the head, so you'd need to maintain an electrical connection between the head and the handle. However, this seemed like a relatively straightforward task for the skilled person, so I put true.

      16.2: I agree with Bertrand.

      18.4: Bertrand, that's a good point. Now I understand why they went to the trouble of writing, in D2, that "the vibrations ... are converted into vibrations of the air"... I thought that was a bit of a strange thing to mention when I read it.

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    9. I'm still stuck on 19.2. The argument that you would break the energy supply line makes a lot of sense in the real world (although as long as the end of one wire meets the end of the next it wouldn't be hard). But in the context of the paper, the third embodiment and D4 both very causally have a wire crossing the same connection region, implying to me that the EPO thinks it's no big deal.

      As for the neighboring fields argument, it seems to be that the fields are closer than the equivalent fire protection door paper. But maybe not.

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    10. I'm also doubtful on 18.4 - i put T. I know Art. 69 EPC is a bit of a far fetch, but claims should be interpreted on the basis of the description of the patent application. The way that the vibrator is disclosed in the description i'd argue this would exlude the loudspeaker of D2. [004] disloses that "the invention is based upon an improved dental plaque removal due to the transmission of vibrations to the bristles". I'm not an expert either, but I doubt that a person skilled in the art would consider the loudspeaker in a childrens toothbrush to be able to that, i.e. bring the bristles to such vibrations. The prolongued brushing to remove the dental plaque due to the music is a different story. To me such vibrations would be rather possible with a serious soundsystem ;) Therefore I interpreted the passage in D2 concerning vibrations as a sidetrack ...

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    11. I do not fully agree to the arguments, why one would Not Combine D3 and D2.

      Namely According to figure 3 of application and figure 1 of D4, there are electrical cables from the handle through the neck to the bristle zone. They also disclose a Connection Portion for replacement of Worn out brush Head. Thus the cables would Not prevent providing a Connection Portion.

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    12. The application makes no mention of the technical problem of a wire running across a breakable connection. The third embodiment even mentions this aspect without any comment as to it being a problem when it states "like in the second embodiment, a worn out brush head can be replaced by pulling of the handle".

      I would be very surprised if the justification as to why two documents should not be combined was an entirely unmentioned technical problem that is glossed over, as a presumed triviality, in the application.

      It seems a bit unfair to say candidates should recognise a technical problem but ignore the implicit solutions to it.

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    13. Roel I am unconvinced by your arguments for not combining D2 and D3.

      Both D1 and D4 disclose equivalent connection sections. Neither document teaches any further technical feature necessary in order to enable the electrical connection to continue through said section.

      That is, on the basis of the documents there is nothing to teach that said connection wouldn't work.

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    14. I am no longer convinced myself either... So, I may have been wrong with answering F to 19.2. I will make a note in the post.

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    15. Just another thought: for me the combination of D2 and D3 would not have considered by the person skilled in the art, not necessarily because of the wiring, but the position of the (valuable) vibrator itself. D2 discloses replacable brush heads, wherein the brush head is made of cheap plastic or something. All the "expensive" electronics remain in the handle. Therefore one would not consider leaving the vibrator in the head, which would be thrown away everytime one replaces the brush head. However moving the vibrator in the handle, appears to be "teaching away" from D3, which emphasises the positioning of the vibrator directly under the bristles (see e.g. [002]). None of the documents teach that the vibrator can be in the handle and still remove efficiently the plaque. Therfore I put F to 19.2.

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    16. Anonymous 7 March 2017 at 15:35

      That argument doesn't hold as currently with D3 you would have throw away the whole toothbrush when the bristles wear out. This includes ALL the electronics. If you make the head detachable you can dispose of just that bit. You don't throw away the battery and other components which are in the handle.

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    17. Fair point! That's why they also do it this way in D4 - I missed that in the exam and now again. Ok, it seems the combination of D3 with D2 could have been obvious ...

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    18. To 16.3: In your argumentation, you referred to Art. 54(3) documents only. For that part, I agree. However, including a disclaimer may also be allowed for restoring novelty over an accidental anticipation under Art. 54(2). "An anticipation is accidental if it is so unrelated to and remote from the claimed invention that the person skilled in the art would never have taken it into consideration when making the invention". Isn't this a valid argument given the proposed wording? Thanks in advance for your opinion.

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    19. @Anonymous 16:42.

      D4 is not an accidental anticipation though, since it is clearly relevant for inventive step. Further, an undisclosed disclaimer is only allowable if it discloses exactly what is necessary to restore novelty. From memory I don't think it would restore novelty over the second embodiment of D4 (even if D4 were an accidental anticipation)

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  8. Thank you for the proposed solutions!

    Regarding 13.3, may someone elaborate on why D2 is not considered to disclose "a toothbrush for children having a length of 15 cm, a body made from polypropylene and bristles made from polypropylene"?

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    1. combining lots of different features which were disclosed in lists of different options I thought. So you're picking one from a list of three, another one from a list of three and another one from a list of three for example, which cannot be directly and unambiguously derivable.

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    2. My reasoning was that statement 13.3 combines elements from three separate lists. Thus, I applied the two lists principle (see http://www.epo.org/law-practice/legal-texts/html/guidelines/e/g_vi_8.htm). However, I was torn as to whether three or four items is a list "of a certain length"!

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    3. Indeed, novel because it is a three-list selection: see my summary of the prior art D2 in the post, where I indicate the three lists.

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    4. I answered 13.3 with T. Namely According to my understanding the question is Broad, i.e. it just says "discloses" and Not "discloses with Respect to novelty of the application.

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    5. Makes no difference. "discloses" means "directly and unambiguously discloses" means the golden test means, amongst others, if novel than not disclosed

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    6. Aber was ist hiermit...
      Die Fragestellung bezieht sich ja auch nur auf den Offenbarungsgehalt, nicht auf eine Würdigung der Neuheit....
      In T 701/09 stellte die Beschwerdekammer fest, dass eine unmittelbare und eindeutige Offenbarung nicht auf explizite oder wortwörtliche Angaben beschränkt ist, sondern gleichermaßen implizite Offenbarungen umfasst, die sich für den fachkundigen Leser aus dem Gesamtzusammenhang einer Entgegenhaltung zweifelsfrei erschließen

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    7. @Andi: but what would be implicit? The genus "metal" does not implicitly disclose all the different species of metals, nor does one species implicitly disclose all other species from the same genus class.

      What is disclosed is the same type of test as whether something is novel: it is both about what is directly and unambiguously, explicitly as well as implicitly, disclosed.

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  9. Should not answer 12.2 be true, as subject-matter of claim I is novel over D1.

    Namely, claim I defines a body for a toothbrush providing increased dental Plaque Removal. According to guidelines Part F, Charter IV, 4.13 I u understand this Feature as "a Body for a toothbrush suitable for increased dental Plaque Removal. According to the cited Part of guidelines a Body that comprises all Features of claim I but that is Not a Body for toothbrush suitable for increased dental Plaque removal would Not be novelty destroying. Document D1 toothbrush does Not have vibrator. Therefore, According to Paragraph 004 of application it is Not suitable for increased dental Plaque removal, as this Requires vibrations via vibrator.
    What are your thoughts on this?
    Max

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    1. I think the formulation is unclear (this is likely to have been deliberate). However, I considered that the body of D1 *could* be used with a toothbrush that provides increased dental plaque removal (eg, a toothbrush combined with really good toothpaste!), and so it is *suitable for* a toothbrush providing increased dental plaque removal.

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    2. That was also my doubt about 12.2: D1 is only novelty-destroying if it is, without modification, suitable for a toothbrush providing increased dental plaque removal.
      I decided to consider it so. A problem is that "providing increased dental plaque removal" is in itself unclear: how, what is increased removal, how much of an increase relative to what? So, it cannot be used to discriminate against prior art that provides a certain level of dental plaque removal, so not novel.
      Further, the claim does not have vibration in it: just swicthing meand for ... the electrically operated element. So, the vibration that is in the application but not in the claim cannot make the claim novel. In fact, there is nothing in claim I that provides this increased dental plaque removal, at least nothing more than in D1 (with the controller switching between two LEDs)

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    3. I agree. Thank you for the fast response!

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    4. Another Sitter7 March 2017 at 18:03

      Roel: I really appreciate the time and effort you and Delta are putting into this. Thank you! Regarding the issue at hand, i.e. question 12.2:

      I thought that 12.2 could be answered as "True". The application discloses that "the amount of dental plaque can be increased by transmitting additional vibrations to the bristles" ([004]).

      The feature "providing increased dental plaque removal" in the claim is then the result of the vibrations. Hence, claim I may be unclear, since it is defined in terms of its result. However, this result is not disclosed in D1:

      There is no explicit basis in D1 (I think we agree on that). To me it seems rather doubtful that there is an implicit increased removal of plaque in D1 in any way, especially since the application discloses that vibrations are responcible for the increased removal.

      I found no pointers in the documents towards the suggested broad interpretation of the feature.

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    5. Broken toothbrush7 March 2017 at 21:38

      In the application it is the body that provides the increased plaque removal though the vibrations generated therein. Therefore, one might read

      body for a toothbrush providing increased dental Plaque Removal

      as a body that 1) is suitable for a toothbrush and 2) provides increased dental Plaque Removal. In other words, "providing..." would tie to the body, not to the toothbrush.

      In this reading, the body (only) must be suitable for a toothbrush. But is must also provide increased plaque removal, which could be interpreted that it must have some intrinsic feature with that effect. (If you only use it for increased plaque removal, e.g., through better training by your dentist, or if this is provided by some intrinsic feature of the rest of the toothbrush for which the body is suitable, it is not the body that provides the increased plaque removal.) The body of D1 doesn't have any such intrinsic feature, and therefore the claim would be new.

      Is it clear cut that this alternative reading is wrong or is this another clarity issue?

      In general, is there any case law about assessing the novelty of unclear claims? I guess this could happen in opposition where an absent-minded examining division has allowed an unclear claim which then is attacked on novelty.

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  10. I had a severe issue with Q11, with an impact throughout the paper. The claim states "...wherein the neck is connected...". I (apparantly falsely) concluded that the 2nd, 3rd and 4th embodiment was not covered by the claim, since in these embodiments the necks are NOT ALWAYS connected to the handle (they can be removed for replacement, even in the 4th embodiment (see text)). So, in my opinion, the claim should have read "...wherein the neck is CONNECTABLE..." in order for your proposed answers to be correct.
    Could anyone comment, please? What would be the correct reasoning for this?

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    1. I had a similar doubt, but decided they must be within the scope. See my comment of 7 March 2017 at 14:19 above.

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    2. From memory the application states that the 2nd/3rd/4th embodiments comprised a "connection section" (or perhaps it was connection portion). This is just a different form of the word "connected" so I reasoned that for the purposes of the question they are connected.

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    3. I had a very similar issue; as the "body" was never explicitly defined, I ruled out those embodiments with replaceable brush heads from the scope of claims of the form "a body comprising/having a brush head/bristle zone" and the like.

      It seems to have cost me dearly...

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  11. 7.2: G 3/14 (not G 1/14) - ?

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  12. Regarding the intermediate generalisation question...

    I answered false because to me it appeared that there was no essential requirement for the battery and controller to be in the handle (even though it was preferred), because they could be anywhere without really changing performance of the brush. The location of the vibrator seemed to be the only one of those features that affected how the invention worked.

    This wouldn't really make a difference to my score but that was my reasoning.

    I thought the paper was significantly harder than any of the previous years, with some poorly worded questions.

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  13. Did anyone else think that the undisclosed disclaimer over D4 question (can't remember which one) could have been true?

    It seemed to fulfil all of the requirements for a disclaimer in the guidelines.

    I know D4 is about a toothbrush but the clients application specifically said it was about a human toothbrush, which seems pretty far removed from the animal toothbrush when you consider how different the problems to be overcome in each field are. Further, given that D4 is later extensively rejected as irrelevant for the purposes of inventive step it doesn't seem unreasonable for the disclaimer to be allowable. I realise disclaimers are assessed strictly by the EPO I just thought there was enough evidence in the paper for this one to maybe be OK

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    1. The disclaimer was "wherein the brush is not for use on dangerous zoo animals such as tigers and lions". Think it boils down to the "for" = "suitable for", so even though the claimed brush is not "suitable for" use on zoo animals, it still covers such brushes provided they have the same positive features.

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    2. I don't think you can make the conclusion that D4 is irrelevant for inventive step though.

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    3. Hi Sam, I used the same reasoning. Some of my colleagues at the office however argued that since D4 also deals with "toothbrushes", it cannot be considered to be in a sufficiently remote field to call D4 an accidental anticipation. I don't agree with them for the same reasons cited by you from the Guidelines...(for me it is a remote field, different problem to be solved)

      @Anonymous 17:36: I don't completely follow your reasoning either. For me the "suitable for" from the disclaimer excludes brushes of a certain length (>40cm) which none of the embodiments in the application document cover... and therefore -in MHO- would allow the amendemend to the claim...

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    4. @Sam: claim II is not limited to a human toothbrush, it is not even limited to a tooth brush, it is just a brush. So its field is very broad, and D4 is -in my view- without doubt NOT an accidental anticipation. Further, even if the claim would be to human toothbrushes, is an animal toothbrush really so far away that you would never consider to read patent applications about those when you make human toothbrushes and want to improve them?

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  14. I also think that including the disclaimer is allowable due to an accidental disclosure for reasons set forth in the guidelines.

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    1. @Anonymous7 March 2017 at 17:31:
      Please give your detailed reasoning so we can all understand what you are going after

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  15. Thanks for your solutions and the helpful discussion, here!

    As far as I can see, there is yet no comment on 20.3. In fact, I answered T.

    Maybe I'm somehow wrong here, but reading Claim III on the second embodiment of D4 (vibrator in the handle), I can only find the distinguishing feature "total length".

    Since Claim III does not mention a brush for humans, there should be no problem in using D4?

    Best, Mark

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    1. I thought the same, and would be interested to hear more thoughts on this.

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    3. I'm going for a try starting from the GL: "The first consideration should be directed to a similar purpose or effect as the invention or at least belong to the same or a closely related technical field as the claimed invention".

      1) One could argue that the effect of the second embodiment of D4 (D4-2) is the same as Claim III. Also, one could argue that D4-2 is a closeley related technical field since it is still "the brush" [004] of the first embodiment but used for scrubbing the back [004] and it is even disclosed in the same document. In these cases D4-2 probably should be closest prior art.

      2) However, just looking at the purpose (scrubbing the back), that would be different and D4-2 would not be prior art.

      3) But: D4 might still be closest prior art with its first embodiment (D4-1).

      The distinguishing features of D1-D4 with respect to Claim III should be (?):

      D1: vibrator, connection section
      D2: vibrator, total length
      D3: vibrator in the handle, connection section
      D4: vibrator in the handle, total length

      The closest prior art is the one which requires the least structrual and functional changes:

      D1: include 2 additional structural features
      D2: include 1 additional structrual feature + change the length
      D3: include 1 additional structural feature + change the position of vibrator
      D4: only change the position of vibrator + change the length

      Therefore, I'd be inclined to see D4-1 as closest prior art, if D4-2 shall not be considered.

      4) In addition, with regard to the more general definition of the "most promising starting point" one might argue that D4 discloses in the same reference, in addition to D4-1, the structurally even closer D4-2 (albeit for a different use).

      5) The question just refers to D4 as a whole. In any case i'd probably lean towards D4 and 20.3 to be T.

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  16. Dear Roel many thanks for all your time and input! Do you have by any chance new thoughts on 18.4? It seems the posts (see above e.g. Bastooky at 13:56, Anonymous 14:10, 14:52) were a bit overshadowed by the parallel 19.2 discussion.

    I also put T, because of the hints on the interpretation of the term "vibrator" given in the description of the patent application. [004] disloses that "the invention is based upon an improved dental plaque removal due to the transmission of vibrations to the bristles". Given this passage I would argue that a loudspeaker is not a vibrator according to the claimed invention. Shouldn't the interpration of what a "vibrator" according to the claim is, be irrespective of whether D2 mentions vibrations of a loudspeaker? I kind of doubt that the vibrations of the loudspeaker are transmitted to the bristles, at least in a sufficient manner to have an influence on the plaque removal.

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    1. I agree with Bertrand of Rijswijk 7 March 2017 at 13:54,who wrote:
      For 18.4, I guess that's because the music module emits vibrations (see description para. 3), and thus can be considered as an electrically operated vibrator.
      As the claim just specifies "vibrator", anything which can be considered a vibrator of whatever type anticipates it. If a specific type of vibrator or a specific configuration of vibrator is meant, that has to be specified in the claim.

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    2. Thanks Roel for your commitment, even in the late evening ;-) Appreciate the discussion.

      I'd agree on the fact that the music module could be considered a vibrator based on the EN version of the exam where it states "...plays a melody over its loudspeaker, the vibrations of which are converted..."

      However, in ther DE version it is worded differently "...spielt es über seinen Lautsprecher eine Melodie ab, DEREN Vibrationen..."

      That is, in the DE version, the vibrations refer to the melody instead of the speaker...

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    3. Broken toothbrush8 March 2017 at 09:50

      I found this question the most frustrating one in the whole exam. For the skilled person, is anything that vibrates a vibrator? More specifically, is a loudspeaker a vibrator? In real life practise, I could easily find arguments either way. I felt that this mostly became a matter of second guessing the intensions of the test makers.

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    4. Broken toothbrush8 March 2017 at 09:52

      "Practice", not "practise", sorry.

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    5. A melody (sound) is a vibration of air per se. It is clear that a speaker producing said air vibrations is a device that is a vibrator irrespective what the vibrations refer to (melody or speaker).

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    6. Broken toothbrush8 March 2017 at 12:13

      It is clear-cut that the loudspeaker causes vibration, but that's not the question. The question is whether the skilled person would consider anything that causes vibration to be a vibrator. I find room for argument there.

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    7. My toothbrush is a vibrator (i.e. it plays music)8 March 2017 at 12:23

      Agree with Broken toothbrush.

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    8. Good point, Broken toothbrush. The longer i'm thinking about this, the less immediate is the step from "the loudspeaker which performs vibrations" to "the loudspeaker is a vibrator" Would a guitar string be a vibrator, i don't know. However, I think that (as pointed out elsewhere) the DE version does not even disclose that the loudspeaker performs vibrations, the argument based on the DE version is stronger.

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  17. I am looking forwards to more comments on the loudspeaker of D2. At least in my case whether the loudspeaker of D2 can be considered as a vibrator was decisive for answering 18.4 as well as 19.2. I answered 18.4 T for D2 does not disclose a vibrator as claimed and based on it I answered 19.2 F for disagreeing the passage "the skilled person would consider a combination with D2" because I thought he would consider a combination with D4 instead.

    K

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  18. On 18.3, I reasoned that the 'electrically operated vibrator' does not inherently transmit vibrations to the bristles, and only generates the vibrations, because [004] of the description specifically makes this distinction. I suppose the counter argument is that transmission is an inherent consequence of generation, I still think that the neck is what really transmits the vibrations. What were your thoughts on this?

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  19. The normal technical meaning of the word vibrator in electromechanics is a component that vibrates (and thereby causes vibration) in a medium contacted therewith. The skilled person knows at least as much. His specialized knowledge in the field does not make him ignore (or forget) the basic meaning of the term. Only real persons forget the basics and become biased by their specialized knowledge (you ?), not fictional persons. Hence, the skilled person will consider any possible meaning of the term, including the basic meaning thereof. Consequently, a claim comprising the technical feature "vibrator" is novelty destroyed by any component that vibrates.

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    1. Broken toothbrush8 March 2017 at 14:51

      GL F IV-4.3 says that "[e]ach claim should be read giving the words the meaning and scope they normally have in the relevant art, unless in particular cases the description gives the word a special meaning, by explicit definition or otherwise." (my emphasis)

      Where is your basis for extending the scope to also cover the meaning in general language, if that one is different?

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    2. Precisely. Excluding the basic meaning - "an object that vibrates" - would render the definition of the term "vibrator" special, which it is not. The term is broad and does not belong only to the art of vibrating toothbrushes. It belongs to the art of electromechanics, if you wish, and as such it cannot be reduced to its specialized meaning.

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    3. The description explained that the vibrations produced the music. I felt it was a little too much, but I sensed that the question wanted me to acknowledge that a proper claim should have a proper definition of the features of the invention and in that sense the claim was not proper. The vibrations of the britles intended to clean the teeth by means of mechanical move vs the teeth and that should have been more properly worded in the claim. What I am trying to say is that the claim was somewhat broad and that question intended to test our judgement on that.

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    4. That is also my interpretation. Even though I would outside the context of this paper not consider a loudspeaker a vibrator, with the information given in the paper [Rule 22(3) IPREE], it appears to be.

      "As long as electric energy is supplied to the music module, it plays a melody over its loudspeaker, the vibrations of which are converted into vibrations of the air" is most easily understood as "the vibrations of the loudspeaker are converted into vibrations of the air" and thus as "the loudspeaker acts as a vibrator converting a vibration of the loudspeaker into vibrations of the air".
      As long as our claim does not specify that the vibrator makes the bristel vibrate (the essense of the invention... but not in the claim), any vibratior anticipates it.

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    5. I can only agree with Roel. Also, one has to keep in mind the that we are in an artificially created situation (exam paper). Obviously this statement was there on purpose. A real life application would certainly not include an absurd and unrelated statement like this.

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    6. Well... also in real-life applications strange things happen... but then you are not obliged to take the facts as presented to be correct... here you have to.

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    7. Hmm ... but then what about 8.3? Shouldn't this statement then be also F? A loudspeaker as a "vibrator" doesn't yield the technical effect to transmit (at least to a significant extent) vibrations to the bristles. Hence the technical effect could not be linked to the feature "vibrator" as such.
      Seems like a logical consequence, but quite a strange one given the whole point of the invention, no?

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    8. sorry: 18.3

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    9. Regarding 18.4:

      I'm quite surprised, but when comparing the versions: indeed the German translation seems not to be in line here (as pointed out by Anonymous7 March 2017 at 23:51).


      @Roel: for the English version it seems correct reading

      "it plays a melody over its loudspeaker, the vibrations of which are converted into vibrations of the air"

      as "the vibrator acts as vibrator".

      However, in the German version, this part probably was wrongly translated:

      "it plays over its loudspeaker a melody, the vibrations of which [melody] are converted into vibrations of the air" ("spielt es über seinen Lautsprecher eine Melodie ab, deren Vibrationen in Luftvibrationen umgewandelt werden").

      The relevant disclosure of "the vibrator acts as vibrator" is missing here. Therefore, the candidates reading the German paper are much more likely to answer T instead of F.

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    10. "the vibrator acts as vibrator" -> "the loudspeaker acts as vibrator" (or "the loudspeaker performs vibrations")

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    11. Hi Roel, what you're saying is that you're inclined to regard the loudspeaker as a vibrator. But is this actually the right way to do the interpretation and comparison? I'm thinking of GL F IV 4.2 which states that "each claim should be read giving the words the meaning and scope which they normally have in the relevant art". So I'd argue that we need to interpret the term "vibrator" in the Claim III and compare this interpretation with "a loudspeaker which vibrates".

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  20. Roel, what is your opinion on the remark about the German version of the exam? (23h51) To me, that seems an essential difference: if the melody vibrates instead of the loudspeaker, it is NOT an electrically operated vibrator, as only the loudspeaker can be considered as being an electrically operated. Such a difference between EN/FR and German (translation error? deren instead of dessen) leads to a different answer of the question! Or should all the German speaking candidates have understood that there was a grammatical mistake in the sentence?

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    1. That's also my point of view. At least in the German version the disclosure is significantly more implicit.

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    2. My German is not good enough to give an opinion. But a melody cannot vibrate, a melody is an abstract term used to describe what is written down or can be heart as a sequence of musical notes having pitches and rythm. So, if something vibrates, there is a mechanical cause (the vibrator below the bristles; the loudspeaker) of which the vibrations are coverted / transferred to an another mechanical part (the bristles; the air).
      Whether "deren" or "dessen", or the presence or absence of a comma in German, has an impact on the (technically sensible) interpretation of the sentence in D2, I really donot know. But, with what I said above, what else can vibrate than the loudspeaker as a source and the air as the medium used to transfer the vibrations (which may then be appreciated as a melody)?

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    3. I would also be interested in a further assessment of the German version regarding the music module! Actually I think this is quite a dramatic translation fault. Not only is it "deren" instead of "dessen" but the sentence order is reversed: "plays over its loudspeaker a melody, the vibrations of which" (DE) instead of "plays a melody over its loudspeaker the vibrations of which" (EN). Based on the German text, your (probably right) conclusions of 8 Mar 2017, 16:02, Roel, don't seem to fit anymore.

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    4. Roel, what would be your answer of 18.4, if the english version was "it plays over its loudspeaker a melody, the vibrations of which [melody] are converted into vibrations of the air"?

      Does anyone know about translation problems in past exams leading to different answers?

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    5. Signal: in the addendum to the pre-exam 15, there were two answers where points were given for both T and F because of a problem with disclosure. Seems like there might be a disclosure problem with the German version this year. At the very least – and this might be even more important – examinees in DE are biased towards a different answer as compared to EN/FR, leading to a fairness issue.

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    6. Heard about the 'german speaker issue' from other candidates. When one is reading the german exam carefully it is really strange. That the melody vibrates makes no sense. Doesn't this mean that this is a unclear and meaningless disclosure?

      R.

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    7. Well, thinking of the beach boys here, a melody could have "good vibrations" or "bad vibrations" in the sense of spreading good or bad mood...

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  21. Howdi,
    I really do not understand why 13.3 is to be answered FALSE since D2 does disclose a toothbrush for children, whose body is made of polypropylen and whose bristles are also made of polypropylen ([001]). Furthermpore, it is disclosed that the length of the toothbrush is 15 cm ([004]).

    It is likely that I need all the marks of question 13 in order to pass the examen . Therefore, I am kind of nervous.

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    1. The answer is false since D2 does not disclose a toothbrush having said features as such (directy and umambiguously). To arrive at this toothbrush multiple selections from several lists are required. Once you have to select from at least two lists of a certain length, novelty is established. Sorry.
      Kim

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    2. http://www.epo.org/law-practice/legal-texts/html/caselaw/2016/e/clr_ii_e_1_4_2.htm

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    3. No need to go into the trouble of the Case Law Book, it is in the Guidelines in G-VI, 8(i)(a):
      "In determining the novelty of a selection, it has to be decided, whether the selected elements are disclosed in an individualised (concrete) form in the prior art (see T 12/81). A selection from a single list of specifically disclosed elements does not confer novelty. However, if a selection from two or more lists of a certain length has to be made in order to arrive at a specific combination of features then the resulting combination of features, not specifically disclosed in the prior art, confers novelty (the "two-lists principle"). Examples of such selections from two or more lists are the selection of:
      (a) individual chemical compounds from a known generic formula whereby the compound selected results from the selection of specific substituents from two or more "lists" of substituents given in the known generic formula. The same applies to specific mixtures resulting from the selection of individual components from lists of components making up the prior art mixture;
      (b) starting materials for the manufacture of a final product;
      (c) sub-ranges of several parameters from corresponding known ranges."

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    4. I studied T 12/81. There a list of 20 substance and further 5 mehtod alternatives (= 100 possible combinations) were disclosed in a prior art document. Nevertheless, the board decided that noveltey is not confered. The board stated also that, in general, novelty can be confered, if a selection of two or more lists of a CERTAIN length is made by a claimed subject-matter.

      Now, with respect to the prior art document the board was dealing wiht this would mean two lists of 20 elemenets (= 400 possible combinations). Together with 5 mehtod alternatives 2000 possible combinations would result.

      However, according to D2 there are only 27 possible combinations (3*3*4) which are immediately apparent for a skilled person.

      So, of course, if the two(or more)-list-principle is applied strictly - actually slavish - the answer to question 13.3 is FALSE. But this would mean to disregard the circumstances of the particular case (only 27 possible combinatoions). Besides, from my point of view, D2 does not fall under the situations described in the Gudielines G-VI, 8. i) a) to c).

      8. i) b) seems to refer to the situation in which any change of the starting materials occurs during the manufatcture of the final product (chemical reaction or at least mixing), since it recites "starting" materials.

      After all this, I still hope that the answer to 13.3 is TRUE since I need the marks. By the way, I cannot imagine any exminer following the conclusion, that D2 does not diclose a toothbrush for children, whose body and bristles are made of the same material, namely polypropylen, and which has a length of 15 cm.

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    5. ...ups, I meant 48 (4*3*4) possible combinations with D2...

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    6. Its me again. In T 12/81 it is decided that novelty is not confered with respect to the prior art document disclosing a list of 20 substances and 5 method alternatives. So, in the borad's opinion, the claimed selection out of 100 possible combinations is not novel.

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    7. To Anonymous of 9 March 2017 at 09:55: you said "By the way, I cannot imagine any exminer following the conclusion, that ...". Do you believe examiners are always right? And even if the would be, they are not legal basis. No doubt it is a three-list selection. Sorry.

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    8. In assessing what is directly and unambigously disclosed, two lists, one 20 long and the other 5 long, is NOT the same as a single list of 100.

      The 3 lists are all 3 or longer, so "a certain length". So, it is clearly a multiple-list selection. GL G-VI 8(i) gives 3 examples, but those are not exhaustive. Further, the selection outnof the first two lists (selection polypropylen from the first list polypropylen from the second) is exactly in the second example "(b) starting materials for the manufacture of a final product". So there cannot be any doubt in my view that this is a multiple-list selection, so the selection is novel.

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    9. @Roel: you are citing GL G-VI,8.
      The excerpt starts with "in determining novelty"... However Q13.3 does not read about novelty. The question is about disclosure (for whatever purpose).
      Further, the GL read that a non specifically disclosed combination does not destroy novelty. However, again, Q13.3 is about disclosure, not specific disclosure.

      Edd

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  22. Anonymous9 March 2017 at 09:55, I am afraid the answer of 13.3 is F. This combination of features is clearly not disclosed as such and in violation of 123(2) EPC. I am an Examiner and I am not always right, but this one is no brainer. I am sorry.

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  23. Thank you for your correction. I feel bad now because I should have corrected the sentence myself, but at the question 13.1 I answered false, simply because a false sentence cannot be true by definition. It is said "a tooth brush according to claim one" while claim one is not directed to a tooth brush but only the body of a tooth brush. Was I too stubborn interpreting literally the question ?

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    1. This comment has been removed by the author.

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  24. @Anonymous, 9 March 2017 at 11:40: I am totally your opinion. I think 13.1 answer should be F because the claim directs to a body [...] and not to the tooth brush. I think misinterpreting here was the "trap" also because of the given length (i think 24 cm) which is within the range 18-25 cm.

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    1. I actually see your point here, but it seems like over-interpretation when considering that 13.1 also says "length" instead of "total length", so the question is just formulated briefly.

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  25. I made the same mistake ("F") in 13.1; nevertheless, 13.1 - at least in the german version - is directed to claim I.2 and claim I.2 says [...], wherein THE toothbrush ..., thus introducing also the toothbrush into the scope of the claim. So, in my opinion "T" would have been and is the correct answer.

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    1. It also says so in the english version. However, in MHO this is not an introduction of the toothbrush into the scope, but just a reference to the aforementioned toothbrush for which the body is. See no problem there.

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    2. Yes, I partly agree. I think its not 100% clear. See also GL, F-IV, 4.1. That's the reason why I finally chose "F". Still, I think its possible to "introduce" the tootbrush like that, but the more I think about it, the less I am sure....in the cited GL it reads: First par.: "Where a claim in respect of a physical entity (product, apparatus) seeks to define the invention by reference to features relating to the entity's use, a lack of clarity can result. This is particularly the case where the claim not only defines the entity itself but also specifies its relationship to a second entity which is not part of the claimed entity (for example, a cylinder head for an engine, where the former is defined by features of its location in the latter)." Second par: "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."

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  26. For so many years "the toothbrush" was a milestone in becoming approved as examiner at PRV, Sweden, amusing to see it in the EQE this year :))
    (Passed that one 17 years ago, haha)
    Lin

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    1. Broken toothbrush10 March 2017 at 13:38

      Funny, did they use the same embodiments as here?

      More in particular, did the PRV exam say anything about vibrating vibrators...? :)

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  27. My reading of question 13.1 was different. A toothbrush according to claim I having "a" length of 24 cm can be a toothbrush with the length of the neck being 24 cm, so that the total length can be over 25 cm, e.g. 40 cm. This toothbrush is not covered by claim I.2 and the answer to question 13.1 is F.

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    1. If such an argument would apply, one could also say that it is asked for "a" toothbrush, which could be any speculative toothbrush, e.g. with decreased plaque removal and without battery, and thus outside of the claim...

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  28. 17.4 I really do not understand why 17.4 is F.

    Claim II states that electrically vibrator is in the body. The handle is the part of the body. Description says "preferabily" in the handle "not" must be in the hand... I think this is a limitation of the scope, why add "the vibrator is in the handle" have to be considered a generalisation?

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    1. Wrongly formulated sorry, Why 17.4 is TRUE

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  29. 17.4 I really do not understand why 17.4 is T.

    Claim II states that electrically vibrator is in the body. The handle is the part of the body. Description says "preferabily" in the handle "not" must be in the hand... I think this is a limitation of the scope, why add "the vibrator is in the handle" have to be considered a generalisation?

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    1. See DP's introduction..."In all four embodiments, the electrically operated vibrator is located in the handle, together with controller and a battery. so both need to be in the claim too."
      See GL, H-V, 3.2.1 Intermediate generalisations
      "Extracting a specific feature in isolation from an originally disclosed combination of features and using it to delimit claimed subject-matter may be allowed only if there is no structural and functional relationship between the features."

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    2. GL, H-V, 3.2.1 Intermediate generalisation:

      We can argue on the fact that the vibrator disposed in the handle is not a feature inextricaby linked or related to a particular originally discolsed embodiment. It is "possible" put the vibrator in the handle in all 4 combinations/embodiments, and this is the preferred solution.

      The legal base is that amendment comply with art. 123(2), and GL says "In any case it has to be ensured that the skilled person is not presented with information which is not directly and unambiguously derivable from the originally filed application.."

      Skilled person is perfectly and unambiguously informed from the original filed description that the vibrator could be disposed in any other place whitin the body.

      Embodiments are given as examples of how can the invention be carried out they are not limitating I suppose.

      In that case the skilled person is perfectly aware that preferably in the hande"

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    3. Feature (vibrator in the handle) is not taken in isolation from anoriginally disclosed embodiment. It is a common feature for all four embodiments. So it could not be considered a generalisation.

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    4. It could be understood as a limitation, which is present in the four examples. thus there is no intermediate generalisation.

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    5. for the first argumens (Anonymous10 March 2017 at 16:20

      See DP's introduction..."In all four embodiments, the electrically operated vibrator is located in the handle, together with controller and a battery. so both need to be in the claim too."
      See GL, H-V, 3.2.1 Intermediate generalisations
      "Extracting a specific feature in isolation from an originally disclosed combination of features and using it to delimit claimed subject-matter may be allowed only if there is no structural and functional relationship between the features.") I reply that: do not forget that the vibrator is already in the claim II as filled and dissociated from the controller. so the limitation is about the location of the vibrator only. Therefor the response is : F

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  30. in my opinion question 11 if FFFF

    Bristles are not included in the claim, so no one of the 4 embodiments falls within the scope of claim I.

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    1. You're kidding, right?

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    2. No, I actually drew the pre-examination 2017.. I'm pretty serious about that.

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    3. You made the drawings for the pre-exam? Don't believe you're serious, but if so: claims are broader than embodiments -> embodiments fall within scope of claims.

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    4. @Anonymous of 12 March 2017 at 10:56 (please use a name or nick name below yuour post, makes it easier to communicate):

      "Bristles are not included in the claim, so no one of the 4 embodiments falls within the scope of claim I"

      If you are indeed serious, I am afraid you miss out on the key characteristic of the scope of protection of a patent claim...:
      If I claim "a car having 4 wheels", your argumentation would mean that "a car having 4 wheels, a motor, a steering wheel, a radio, two front seats and 3 rear seats, and a trunk" would not be within the scope of the claim... Do you really believe that a product is outside the scope of the claim if the product has at least one unclaimed feature? Please consider whether maybe you were seriously wrong...

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    5. Hi Roel, thanks for your explanation,

      no seriously guys, I took this year the pre examination for the very first time, so probably for you it is obvious, but i really put FFFF to Q11 i'm not jocking.

      I understood very clearly your point Roel, probably if the claim wording would recite "A Toothbrush" i would put TTTT.
      But the claims wording recites "A body for a toothbrush" and I intended it as "suitable for ...".

      In your car example, if i would claim "A body for a car" nothing will changes? wheels steering wheels and radio still falls whitin the scope?

      Thank you

      Simon

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    6. Hi Simon,
      I understand your confusion, and I must admit I was also somewhat surprised about the way it was worded, but there cannot be any doubt about the correctness and interpretation of the question and its statement in my view.
      If the claim is "a wheel for a car, the wheel comprising features A, B and C", then yes, I would consider "A car comprising four wheels, each of the wheels comprising features A, B and C" to be within the scope of the claim: this car is within the scope (of protection) of the claim as you can forbid a third party to sell this car as it has (at least one of) the claimed wheel, and a third party only commercially exploit it of you have permission from the patent owner. The scope of protection includes the making, selling, using, offering for sale of any product that has the claimed features.
      By the way, with claim 1 "A wheel", another claim 2 "A car having wheels as claimed in claim 1" is a dependent claim on claim 1, as it has all its features. See e.g. T 2204/10 where a claim to a "transmission system comprising a transmission node" is dependent on a claim to "a transmission node". And a dependent claim has a narrower scope than the claim it depends on. So, also when looking at claim dependencies one comes to the same conclusion about scope.

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    7. Thank you Roel, now it is much more clear to me.

      Simon

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  31. Dear Roel, did you maybe had an opportunity to think about the German loudspeaker issue again? Think it's not necessary to read the German version of the exam, but only the single sentence which in english would be: "it plays over its loudspeaker a melody, the vibrations of which (melody) are converted into vibrations of the air". As i understood you, the normal interpretation would not be to consider a loudspeaker a vibrator (which is probably the viewpoint of most technicians) but that the interpretation needs to be based on the information given in the paper (Rule 22(3) IPREE). So regarding the information given in the paper, the english version discloses that the loudspeaker vibrates, which might give an argument to see it as a vibrator (still disputable, in my opinion), but the german version does not even disclose that...

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    1. See my comments above, of 9 March 2017 at 10:30.

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    2. I have read your comment really carefully! But, actually, i don't fully understand it, because on the one hand you're regarding the speaker as a vibrator strictly based on the informations given in the EN paper (Rule 22(3) IPREE), although in normal life one probably wouldn't. Fair enough. But: on the other hand for the DE paper you're saying "what else can vibrate than the loudspeaker as a source and the air as the medium used to transfer the vibrations", which is an interpretation that cannot be inferred from the given information (Rule 22(3) IPREE). So this part of your comment actually is unclear to me. What I understand is the first part of your comment where you're saying that based on your German you just don't know whether the translation problem has an impact on the interpretation. Is there maybe a chance that you could discuss this with a German speaking colleague?

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    3. we understand this from the FR version too. So I do not think it is a translation problem.

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  32. In my view the FR version is like the EN version. Only the DE version is translated wrongly. EN: "it plays a melody over its loudspeaker, the vibrations of which" (=there are vibrations of the loudspeaker); in FR it is similar: "une mélodie est diffusée via le haut-parleur, dont les vibrations" (=there are vibrations of the loudspeaker). In DE, however, it is "spielt es über seinen Lautsprecher eine Melodie ab, deren Vibrationen" (=there are vibrations of the *melody*).

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    1. I think you are overinterpreting the German version. Although the translation seems incorrect, (deren instead of desen), it is unreasonable to assume that a speaker producing melody, the vibrations of which melody are transmitted to the air, does not vibrate itself. If your interpretation was that the melody vibrates, where would this vibration come from, except from the speaker.

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    2. Actually i'm not overinterpreting, since i'm not interpreting the DE version at all. I'm just taking the information given, which is what we are supposed to do (Rule 22(3) IPREE). The information given is that the melody vibrates. This has no meaning (or is unclear) and thus cannot lead to the same conclusion as for the EN/FR version.

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    3. A mind willing to understand21 March 2017 at 13:30

      I agree with Anonymous at 12:31. Furthermore, the sentence requires that vibrations are converted to air vibrations ("Vibrationen in Luftvibrationen umgewandelt").

      In the proposed interpretation by signal the second part of sentence that highlights that vibrations are converted is entirely disregarded. But this part is epecially important, because it makes clear that some vibration must be present in the body. Otherwise there would be no vibration which is converted.

      So even if the strictly literal approach without any regard to a technical understanding is taken (which should not be taken as argued by Anonymous 12:31) and the loudspeaker does not vibrate, there must be another vibrating part, i.e. a vibrator, whose vibrations are converted to air vibrations.

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    4. Broken toothbrush argued above (and i think what he says makes some sense) that there is room for argument whether something that vibrates can always be considered a vibrator. In normal life this would be quite unusual, since the usual technical meaning of a vibrator is something that is put in vibration in order to transfer that vibration to the carrier of the vibrator. For a loudspeaker such a transfer of vibrations to the carrier is not desired, except for "vibration speakers", which actually are designed to transfer vibrations to the surface they're placed on in order to make the surface vibrate and enhance the sound. So i think in real life it is not very obvious that a loudspeaker is a vibrator.

      However, for the purpose of the exam, I agree that one can just focus on what is written which is a "loudspeaker, the vibrations of which" which essentially says "the loudspeaker vibrates" which in a very linguistic way can be turned into "the loudspeaker is a vibrator". This is how Roel argued above, which seems legit.

      However, when reading the English text in such a literal and linguistic way, then the same standard should be applied to the German text, and in the German text there is no disclosure that allows for the same conclusion.

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    5. I fully agree with A mind willing to understand. It smells like someone is desperately trying to find an excuse for having failed to understand the paper... whereas it is completely clear with any reasonable reading that the loudspeaker is a kind of vibrator, even if the translation may not be fully accurate... (and even if the melody would vibrate, it is the loudspeaker that makes it do so)... one shall not use own technical knowledge to understand, but also not use one's own technical knowledge or lack of it to be stubbornly misunderstanding... Errors of translation should of course not happen, but accidents happen - however, when everyone tries to control the damage, that does not need to be a disaster.

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    6. Anonymous21 March 2017 at 13:39: Thanks for your comment. When reading all three versions of the exam, I agree with you that the paper is most probably supposed to be understood in a way that the loudspeaker is kind of a vibrator. I also agree that translation problems should not happen. However, if they happen, one cannot assume that candidates control the damage by reading all three versions to find out what is meant. At the very least (and I think everyone agrees here), when only reading the German version one is *less likely* to see the loudspeaker as a vibrator, which is kind of a fairness issue.

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    7. In my opinion the loudspeaker is a "vibrating device" NOT a "vibrator device" because its function is to generate melody and the vibration is just a consequence. A "Vibrator device" must have the goal to generate a vibration of the complete system on which is installed.

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    8. My opinion, I totally agree with you. This was exactly my train of thought in the exam. I thought that they put this in as " a red herring". In real life you would never construe a speaker to be a vibrator. Although I appreciate that in the Exam you are supposed to accept the facts as they are given to you, it is sometimes impossible to forget common sense.
      M

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    9. As i've written elsewhere: i think the mindset maybe should not so much be focused on if one would construe a speaker to be a vibrator. In my view the more correct juristic way would be to determine the meaning of the word "vibrator" (to this end the method of interpretation is used: cf. GL F IV 4.2) and then, when this meaning is established, it is compared to the document D2 disclosing "a loudspeaker, the vibrations of which...". Just my thoughts on this.

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  33. In my opinion a "vibrator" is a species of the genus "something that vibrates", even in view of Rule 22(3) IPREE, i.e. when "accepting the facts given in the paper" and disregarding "special knowledge".

    The reason for this is that the "vibrator" in Claim III should not be interpreted as the nominalized verb "vibrate" but needs to be interpreted as an electric component.

    For electric components, however, it is *generally* known (i.e. without special knowledge!) that they have a special narrow meaning, even if the name of the component is derived from a verb:

    Accumulator ≠ "anything which accumulates something"
    Condensator ≠ "anything which condensates something"
    Elevator ≠ "anything which elevates something"
    Generator ≠ "anything which generates something"
    Isolator ≠ "anything which isolates something"
    Radiator ≠ "anything which radiates something"
    etc. etc.

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    1. I am not a native speaker, but reading your terms with a general techncal mindset, I think that:

      Accumulator = "anything which accumulates something, where anything as well as something are to be understood within the context in which the term is used"
      Condensator = "anything which condensates something, where anything as well as something are to be understood within the context in which the term is used"
      Elevator = "anything which elevates something, where anything as well as something are to be understood within the context in which the term is used"
      Generator = "anything which generates something, where anything as well as something are to be understood within the context in which the term is used"
      Isolator = "anything which isolates something, where anything as well as something are to be understood within the context in which the term is used"
      Radiator = "anything which radiates something, where anything as well as something are to be understood within the context in which the term is used"

      Most often the context is limiting "anything" or at least "something". E.g., with generator the context is most often electricity, but it could also be noise, ...

      In the paper, the vibrator is not defined any narrower, also not implicitly from the context, than anything (electrically operated) which makes something vibrate.

      Just my view?

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    2. I agree that the terms may have more than just one usual meaning, but I think this does not mean that these terms in a patent claim can be interpreted in a blind literal manner which extends their meaning to the broadness and indefiniteness of the corresponding verb, because in my view this would simply mean to arrest at a grammatical interpretation without taking into account teleological aspects.

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    3. I'm not sure if 'teleological' is the right thing here, but have a look at GL F IV 4.2: this is the way terms in a claim should be interpreted. According to that, the term 'vibrator' is given the normal meaning in the relevant art. So i'd agree that this normal meaning is narrower than 'anything which vibrates'. Otherwise, the meaning of a 'vibrator' would nearly be boundless: i'm just thinking of mechanical motors or machines etc., nearly everything vibrates, on some scale, even light when considering it is an oscillating electromagnetic wave, etc...

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  34. Anonymous22 March 2017 at 16:55: I understand your point but in electronics the term vibrator has this specific meaning: "the vibrators provide a pulsating DC which could be converted to a higher voltage with a transformer, rectified, and filtered to create higher-voltage DC".
    Therefore, in the pre-exam the term vibrator clearly indicates the purpose of the device, and a loudspeaker cannot bo considered as something used to make something vibrate.
    Using your approach in real life almost any thing in the world can be defined a vibrator device :D

    In any case for me this question is extremely uncertain and both the interpretation shall be considered correct.

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    1. Is that a definition of a vibrator? Sound more like a resonator, or a (waveform) generator? And pulsating DC is intrinsically conflicting: DC does not pulsate, DC is flat.

      But whatever the term means in real life, or does not, it does not matter. That there is so much discussion about the term in the English version on ts own, and even more on differences between the English and the German version, shows that the statements cannot have tested what(ever) their intention was... Oops...

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    2. I'm not sure, if in view of Rule 22(3) IPREE, the actual technical definition of the term "vibrator" is relevant (I just don't know).

      However, if we disregard technical definitions of the vibrator (because this is "special knowledge") then what is left is not simply a grammatical interpretation (vibrator = anything that vibrates) but there are also systematic and teleological approaches. In my opinion, these approaches lead to an interpretation of the term "vibrator" as an electric component which has a narrower meaning than the equivalent verb "vibrate".

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    3. My opinion22 March 2017 at 17:30: I am Anonymous22 March 2017 at 16:55 and I think you misunderstood my comment: what I'm saying is that the term "vibrator" (as well as other terms like "accumulator", "condensator" etc.) should *not* be interpreted just in the literal manner (i.e. "vibrator"="anything that vibrates"). Instead, the term "vibrator" should be interpreted as a concrete electric component, such as an electric component that one would buy on the market and would insert into the toothbrush. Therefore, the term "vibrator" in my view is narrower as the expression "something that vibrates", or in other words the term "vibrator" is a species of the genus "something that vibrates".

      If I understand you correct, what you're saying goes in the same direction, but is more specific. You're saying that the term "vibrator" not only is narrower than the expression "something that vibrates" but also needs to be interpreted based on its purpose. However, I don't fully understand your comment of March 2017 at 17:30. Could you explain in more detail?

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  35. ...and on the other hand, according to the text, the speaker is just "something that vibrates" (at least in the english version).

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  36. Perhaps people with mechanics background overinterpreted the term "vibrator" due to their expertise? I am a chemist and I didn't hesitate much to consider the loudspeaker to be a vibrator, based on the description. It did seem like an unexpected simplification, but the basic principle of loudspeakers is the vibration (like our ear as well), so I though it was acceptable. Don't know much more, in any case.

    Tati

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    1. I discussed the issue with the term "vibrator" with my wife and she had a very different interpretation than most expressed in the forum :)) A good example of a narrow, field-specific interpretation of the term, whereby the general meaning thereof is ignored.

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    2. Hahaha! But also quite a good example that the term "vibrator" may even be interpreted narrower in view of the relevant art your wife has in mind :) For the exam, i guess, the term "vibrator" needs to be given the meaning which it normally has in the relevant art (GL F IV 4.2), which probably is the field of mechanics or so. So reading the term "vibrator" just as "something that vibrates" seems a bit naive.

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    3. @ Roel van Woudenberg 8 March 2017 at 16:02:
      You're saying above that you're interpreting the loudspeaker to be a vibrator. I asked this already above, but: shouldn't we interpret the other way, i.e. interpret the term "vibrator" by giving it the meaning and scope which it normally has in the relevant art (GL F IV 4.2) and then compare the result of this interpretation with D2 "loudspeaker, the vibrations of which"?

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    4. In my view, document D2's disclosure of "a loudspeaker, the vibrations of which..." is EXPLICITLY disclosing that the loudspeaker acts as a vibrator, as it explicitly discloses that the loudspeaker generates vibrations.
      The paper tells you all you need to know about "the relevant art" (GL F IV 4.2), as you are not supposed to use any own technical knowledge.
      So, in my view, D2's loudpeaker generating vibrations is anticipating on a vibrator (which is defined without further limitations in the claims).

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    5. Thanks a lot for you for your answer, Roel. I understand your reasoning as follows: you’re looking at D2 stating “loudspeaker, the vibrations of which” and saying this is basically the same as “the loudspeaker is as vibrator”. However, in doing that you are skipping the step of interpretation, I think.

      In my view, Claim III should be the starting point. The primary step would be to interpret the word “vibrator” in Claim III, that is to determine the normative meaning, which according to the GL is the normal meaning in the relevant art, or put in other words: what the average person has in mind when reading the word “vibrator” against his common general knowledge (excluding any special knowledge).

      What I’m trying to say is: the word “vibrator” does not have any “intrinsic” or “basic” meaning, just because it is related to the word “vibration”. Consider e.g. the word “inflammable”: it does not mean “in-flammable” or “not flammable” – in fact the opposite is true. The meaning of a word is what the average person thinks it is.

      To find this out, the methodology of interpretation should be used, which approximates this meaning by virtue of several common steps. Of course, a “crude” first step is the grammatical interpretation, which might lead to the meaning “electrically operated element that makes vibrations”. However, when applying further steps of interpretation one might arrive at a more realistic meaning, i.e. a better approximation of what the average person thinks. For the term “vibrator” one might for example arrive at a meaning “electrically operated element that has the purpose of making vibrations” or “electrically operated element that can transfer vibrations to a solid medium” or other meanings.

      Only after having determined the meaning of the word “vibrator” in Claim III should one look at document D2 and ask, is a “loudspeaker making vibrations” really within the meaning that has been determined by interpretation.

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    6. Hi WW,
      I get your point. If it would be an open question, I would tend to give marks for your reasoning, even though not what I would expect and even though I still tend to disagree:

      as you indicate, a vibrator can be considered "electrically operated element that has the purpose of making vibrations". This is exactly what the loudspeaker is disclosed to do: "loudspeaker, the vibrations of which". The latter is also technically correct: a loudspeaker works by making the air vibrate (and possibly solids as well, one can make a crystal glass resonate upto breaking) and the vibrations are transferred to the airdrum (so, a solid) to make that vibrate.

      But, as I just indicated on the legal blog as well: we may be wrong...

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  37. Is there any indication of when the results will be out?

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  38. Somone has an idea about when the results will be known ?

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    1. If you could contact the examination secretariat and share their reply would be definitely appreciated! I already did this (see the "first impressions" post)

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    2. ..so do you want more of the same ?

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    3. I wrote last Monday...

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  39. Does anyone know where else you can find out your EQEReg Number?

    I no longer have the enrollment letter that stated it.

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    1. You need to ring the examination secretariat. They will resend a letter with the reg number. They won't email it to you or tell you over the phone.

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    2. But you have to remember that you still live at the address which you have used to register. In case you have moved from the old address, you need to effect that change by communicating with the Examination Secretariat for which you will need (again) your registration number. If you cannot even hold on to your EQEReg number, take a long look at your chosen profession. It only is going to get tougher. Good luck, anyway!

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    3. I do remember that I still live at the address which I used to regester. Thanks for reminding me though!

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  40. Maybe you can send a mail to eqe@epo.org

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  41. I am getting really nervous !!! When are they going to publish the bloody results? I know that I'm not getting an answer here, just felt like writing something about it...It is comforting to know that there other people who think that EPO is an arrogant organisation for being in a position to announce the results on loosely set deadlines such as "end of March/beginning of April". I hope I haven't hurt someone's feelings by saying that. But it is true, isn't it.

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  42. Really frustrating.... and note that no email has been sent yet! What do they mean with we will inform on the publication date "in due time"???

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  43. It means that an email is sent informing you that the results are available on the website. I do not beleive there is any advance warning of when the results will be available.

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  44. Maybe today we will receive some news? The firts receiving the mail could inform the other here please??

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    1. Last year or the year before, the results were available earlier than the date and time given in the email that was send by the Exam Secretariat...

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  45. I don't understand, it is simple true or false, marked by a computer and checked by a human. What is the delay?!

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  46. While I agree that communication from the Secretariat could be done better, after speaking to some experienced colleagues, I found out that one possible reason for the delay in publishing the result is that the Committee might have spotted that a lot of people went wrong on the same question (s) which triggers a re-evaluation and check of the answers. So a long waiting time might actually be beneficial (although, granted, stressful).

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  47. Dear Andrei, thanks for your encouraging information! last year 17 days of waiting, in 2016 24 days, and in 2015 28 days... we must be patient! :(

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  48. I agree with Andrei. To me it is clear that the vibrator concept has caused a lot of trouble.

    Tati

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  49. Broken toothbrush27 March 2017 at 20:40

    Is anyone who announces test results an announcer?

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    1. ...and if you examine the results and form your judgement, will you be and examiner and a judge at the same time?

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    2. Is anyone who bounces a bouncer?

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  50. I have just called the Examination Secretariat, because I have to send them my new adress.
    I took the oportunity to ask about when the results will be available online. she told next week-end.
    So we need to be a litle more patient !!
    KGA

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  51. Thank you very much for your information. so stop to refresh the EPO web site!!!!

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  52. If they delay the results a little bit longer, they will align with the ones of the main exam. They might as well abandon the whole true/false system, as it doesn't seem to provide the benefit of procedural economy.

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  53. Dear KGA, thank you for posting this. Is 'next weekend' the coming weekend, i.e. April 1 & 2, or the weekend after that, i.e. April 8 & 9?

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