Our provisional answers to F 2026 - Part 1
Dear all,
Apolgies for being so late with posting our answers to the legal part of paper F. Our legal team sat paper D yesterday as benchmarkers and we have been busy.
This year's questions seemed strightforward and we encountered no surprises, but very much look forward to your comments on the questions and our answers.
Paper F1 2026: Legal Questions
Question 1
1-1: International applications filed under the PCT can be the subject of proceedings before the EPO. In such proceeding, the provisions of the EPC will prevail in cases of conflict between the provisions of the PCT and the provisions of the EPC.
False
Art. 150(2) EPC: Previsions of the PCT
prevail in cases of conflict
1-2: The European Patent Office and the European Patent Organisation are synonyms for the same legal entity
False
Art. 4(2) EPC
They are not the same. The Office (EPO) is
one organ of the Organisation.
The other organ is the Administrative
Council.
1-3: The European Patent Office is the
only authority in Europe to act as International Searching Authority.
False
Other patent offices in Europe act as ISA
For example, the Spanish Office, the
Swedish Office, the Finnish Office – Annex D of AG-IP
1-4: A granted European patent allows the
proprietor under all circumstances to make, use,
Sell and distribute the invention in all
contracting states to the EPC.
False
A patent is a right to prevent others from
exploiting your invention.
It is possible for e.g. a product to be
novel and inventive over a claimed product that is covered by a granted
European patent, but fall under the scope of protection of that patent.
Question 2
M is a natural person of Spanish
nationality residing in Poland. M wishes to file a European patent application,
EP-M, in Spanish.
Spanish is an official language of Spain
and Polish is an official language of Poland.
2-1: False
The Official languages of the EPO are
English, French and German - Art 14(1) EPC
2-2 True
An EP application can be filed in any
language - Art.14(2) EPC.
A filing date is accorded when the
application satisfies the requirements of R, 40(1) EPC
2-3: True – Art. 14(4) EPC
Applicant lives in Poland and Polish is an
admissible non-EPO language.
A response to an Office action is a
document to be filed within a time limit, so Polish can be used as the language
of argumentation
The time limit to provide the translation
is 1m filing the reply – R. 6(2) EPC
2-4: True
French is an official EPO language – R
14(1)
so may be used in written proceedings R.
3(1) EPC
NB: only amendments need to be filed in the
Language of proceedings – R. 3(2)
Question 3 (4 marks)
European patent application EP-B validly
claims priority of an earlier application, PR-B
The subject matter of EP-B and PR-B is
identical.
EP-B complies with all requirements of the
EPC.
3-1 False
Accorded date of filing is date when EP
filing meets requirements of R. 40(1) EPC
3-2: True – Art. 89 EPC
3-3: True: Art. 93(1) EPC
3-4: False: 20 years from filing
date – Art. 63(1) EPC
Question 4
(4 marks)
4-1: Pending European application EP-Y was
filed on 7 March 2024.
The renewal fee for the third year is due
on:
31 March 2026 – R. 51(1) EPC
2-2: The renewal fee can be validly paid
today
True: Today is less than 6m before the due date – R. 51(1) EPC
Question 5 (3 marks)
European patent application EP-Z was validly filed on 2 December 2025 with the following elements: a description, claims and an abstract.
EP-Z validly claims priority of a national application DK-Z
Which of the following elements belong to EP-Z “as filed” within the
meaning of Art. 123(2) EPC?
Answer:
Description, claims and drawings belong to
the application as filed.
Abstract is informative only – Art. 85 EPC
and Search Division is responsible for its content
Priority document does not form part of the
application as filed – T260/85
Question 6
(3 marks)
D is the applicant for a European patent application EP-1. Yesterday D received a communication informing them of the text in which the examining division intends to grant EP-D.
D wishes to proceed to grant with EP-D
Which of the following acts need to be performed within 4 months of
receipt of the communication?
Answer
D has received a communication under R. 71(3) EPC.
Assuming that D wants to approve the text intended for grant, the
necessary acts are to file a translation of the claims into the other 2
official languages and payment of the fee for grant and publishing.
Statements 6-2 and 6-3 are true
Approval is done by performing these acts. There is no need to
specifically declare approval in writing.
Statement 6-1 is false
Statement 6-4 also false (no legal basis
for this; only the claims need to be translated)
Comment: it is not obligatory to reply to the R. 71(3) communication
by approving the text intended for grant. Also possible to disapprove the text
within the 4m period by requesting reasoned amendments / corrections – R. 71(6)
EPC. But since the applicant wants to proceed to grant, it is reasonable to
assume that the questions relates to the acts necessary for approving the text.
Question 7 (3 points)
Answer
Option 1: Not possible
Granted claim is directed to A+B.
Proposed amendment to A only would increase
scope of protection and violates Art. 123(3) EPC
Option 2 also not possible because deletion
of feature B from granted main claim violates Art. 123(3) EPC
Options 3 is a limitation and has basis in
the application as filed.
The amendment satisfies Art. 123(2) EPC.
The amendment overcomes lack of novelty
over the 54(3) prior art, and is allowable because it addresses a ground of
opposition – R. 80 EPC
Question 8
(3 points)
European patent EP-U does not disclose the invention in a manner
sufficiently clear for it to be carried out by a person skilled in the art.
8-1: False – violates Art. 123(2)
EPC
8-2: True
Lack of novelty is a ground of opposition – Art. 100(a) EPC
And amendments which are occasioned by any ground of opposition may
be filed – R. 80 EPC
Question 9 (4 marks)
Applicant A is a Dutch national and intends to file an international patent application PCT-A in Dutch with the Netherlands Patent Office
9-1: True – NPO is a competent
receiving office for Dutch nationals and accepts IAs filed in Dutch – AG-IP
Annex C-NL
9-2: False - NPO will be the receiving office.
9-3: True – EPO is the only
available ISA for IAs filed at NPO as rO - Art. 152 EPC; EPO-WIPO Agreement,
Art. 3; Annex A; AG-IP Annex C-NL
9-4: False – IB is not an
international searching authority; it is a competent rO for applicants from any
contracting state – R. 19.1(a)iii PCT.
When applications are filed with IB as rO,
the competent ISA is an ISA that would be competent had the IA been filed at
the applicant’s competent rO in view of nationality or residency – R. 35.3 PCT.
9-5: False – EPO as ISA will search
in Dutch for IAs filed in Dutch with NPO - EPO-WIPO Agreement, Art. 3, Annex A;
GL-PCT/EPO A-VII, 3.2
No translation required under R. 12.3 PCT
9-6: False – Dutch is not a
publication language. Art.21(4), R.48.3(a) PCT
So translation is needed for publication – R. 12.4 PCT
Question 10
10-1: True – Art.117(1)(d)
10-2: True – GL E-IV, 1.2
10-3: True – R.118(2)(d)
Question 11 (4 marks)
Company C is the owner of a European patent EP-C, which was granted
with 2 independent claims.
Company C would like to limit EP-C to the first independent claim
and delete the second independent claim.
Answers
11-1: False; no time limit for
requesting limitation; is done at the request of the proprietor – Art. 105a(1)
EPC
9m period is for filing an opposition –
Art. 99(1)
11-2: False; can also request
limitation of an expired patent (see e.g. GL D-X 1)
11-3: False; cannot file a request
for limitation while opposition proceedings are pending - Art. 105a(2) EPC
11-4: False; Examining division will
offer one opportunity to correct the deficiencies - R.95(2) EPC
Question 12
European patent application EP-X claims
priority from French patent application FR-X
EP-X was filed by the same applicant and
within the 12m period.
Consider the following situations:
Situation a:
FR-X as filed claims and describes a lunch
box made of aluminium.
EP-X as filed claims and describes a lunch
box made of metal.
Situation b:
FR-X as filed claims and describes a lunch
box made of metal.
EP-X as filed claims and describes a lunch
box made of aluminium.
Answer
In situation a: the priority claim of EP-X
is partially valid (option 3) – G1/15.
Claim will be entitled to partial priority.
The conceptual part of the claim in which the metal is aluminium will have the
effective date of the priority date, and the conceptual part of the claim in
which the metal is not aluminium will have the filing date as the effective
date.
In situation b, the priority claim is not
valid (option 2).
Aluminium is a species of metal; meaning
the claim of EP-X is novel over the priority document FR-X. Therefore, priority
cannot be valid as claim does not relate to same invention- Art. 87 EPC
Question 13
(3 marks)
13-1: False – GL G-VII 5.1
“.. .the applicant or proprietor cannot
refute the argument that the claimed subject-matter lacks inventive step by
submitting that a more promising springboard is available: a piece of prior art
on the basis of which the claimed invention is considered non-obvious cannot be
"closer" than a document on the basis of which the claimed invention
appears obvious, because it is evident in this situation that the former is not
the most promising springboard from which to arrive at the invention (T 1742/12,
Reasons 6.5; T 824/05, Reasons 6.2).
13-2: False – GL G-VII 6
Question 14 (3 marks)
14-1: False; Amount is different if
filed online than if filed not-online. RFees 2(1)
14-2: True; R.38(1) EPC
14-3: False; filing fee is due on
the filing date of the application, but may be paid up to one month later. GL
A-X 5.2.1
Question 15
(2 marks)
International patent application PCT-Q was
filed on 20 July 2024.
It claims priority from an Italian patent
application filed on 1 August 2023.
The time limit for entering the EP phase
expires on:
2 March 2026
1/8/23 (priority date) + 31m [R.159(1);
R131(4)] Ã 1/3/26 (Sunday) [R134(1)] Ã 2/3/2026
(Monday)