Foundation paper 2025 - our answers to F-1, legal part
Our (provisional) answers to the legal part of the Foundation 2025 paper are given below. (Our answers to the claims analysis part will be posted at a later moment, probably tomorrow, 22 March.)
As the sequence of the questions, as well as the sequence of statements/elements within a question, may have been different between different candidates, we numbered the questions and the statements for easy reference.
During the exam, candidates had access to the EPO Legal Text pages, so including the full EPC Articles and Rules, Guidelines (GL/EPO, GL/PCT-EPO), as well as to the PCT Articles and Rules and the PCT Applicant's Guide in the eGuide format. Access to the EPO text was to the live versions, so to the versions in force on 21 March 2025 (so not the version of 31.10.2024 acc REE/IPEE). The PCT texts were in the version in force on 31 October 2024.
Candidates could access the exam in all languages, English, French and German: the language of the question could be selected. All statements were given in all three languages.
Please feel invited to comment and share your thoughts!
Q.1 (DP numbering) - 5 MARKS
Company DK is based in Copenhagen (Denmark) and sells fashion products worldwide. To protect a new product, an application DK-1 has been drafted in Danish. The abstract, description and drawings are complete. Claims are not yet drafted. DK needs to file today.
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1.1 DK-1 can be validly filed in Danish at the EPO as a European patent application under the EPC.
TRUE |
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1.2 DK-1 can be validly filed without claims as a European patent application under the EPC.
TRUE |
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1.3 DK-1 can be validly filed in Danish at the EPO under the PCT with the EPO as PCT receiving office.
FALSE -- R.19.4 PCT; GL/PCT-EPO A-II, 2 -- IB will be rO -- but question is tricky and unclear, as DK-1 will be validly filed with the EPO due to the safeguard of R.19.4, only issue is that the EPO will not be rO but IB will be. Too advanced in in view for Foundation. |
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1.4 DK-1 can be validly filed without claims under the PCT.
FALSE |
Q.2 (DP numbering) - 5 MARKS
Company DK filed a European application DK-2 at the EPO last week and duly paid all fees. DK-2 has one claim.
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2.1 DK-2 will be searched by a search division, which under no circumstances consists of more than two technically qualified members.
FALSE -- GL B-I, 2.2 |
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2.2 The examining division consists of three technically qualified members and can be enlarged by a legally qualified member.
TRUE -- GL C-VIII. 7, Art. 18(2) |
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2.3 The examining division must be enlarged by a legally qualified member upon request of the applicant.
FALSE -- Art.18(2) "if ED considers" |
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2.4 If DK-2 is granted and then opposed, the opposition division must always include both legally and technically qualified members.
FALSE -- Art. 19(2) "If the Opposition Division considers that the nature of the decision so requires" |
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2.5 Any appeal against examining division decisions related to DK-2 will be examined by a board consisting of at least two technically qualified members and at least one legally qualified member.
FALSE -- Art.21(3)(c) |
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2.6 Decisions of the Legal Division are taken by one legally qualified member
TRUE -- Art. 20(2) |
Q.3 (DP numbering) - 3 MARKS
Which of the following pieces of information is optional in the request for an international application under the PCT?
Responses
A Title of the invention
B Indications concerning the inventor where the national law of the designated states does not require that the name of the inventor be furnished at the time of filing a national application
C Name of the applicant
Answers:
Acc. Rule 4.1(a) PCT: A mandatory; Rile 4.5: C mandatory
So that leaves us with B
But the wording deviates both from Rule 4.1(a)(iv) as well as R.4.1(c)(i) and causes doubt. The term "national law of the designated states" is also unclear in itself, as each dOs has its own, hence different national law.
Compare Rule 4.1(a)(iv) (mandatory): "(iv) indications concerning the inventor where the national law of at least one of the designated States requires that the name of the inventor be furnished at the time of filing a national application."
Compare Rule 4.1(c)(i) (not mandatory): "(i) indications concerning the inventor where the national law of none of the designated States requires that the name of the inventor be furnished at the time of filing a national application"
Statement B is probably meant to refer to Rule 4.1(c)(i)
Q.4 (DP numbering) - 4 MARKS
Mr Bohr is the owner of two separate Danish companies R and S. He invented a revolutionary radiation device X and filed a national German patent application DE-X on 18.4.2024, with company R as applicant.
Today Mr Bohr would like to file a European application EP-X under the EPC and validly claim the priority of DE-X.
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4.1 Company R can be named as single applicant when filing EP-X and validly claiming the priority of DE-X.
TRUE -- Art. 87(1), same applicant (R) |
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4.2 Company S can be named as single applicant when filing EP-X and validly claiming the priority of DE-X.
TRUE -- G 1/22, GL A-VI, 6.1, rebuttable presumption (Also TRUE before G 1/22, as Mr. Bohr -as owner of R and S- can first easily arrange a transfer of the priority right R -> S so that S becomes the owner of the priority right before filing EP-X) |
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4.3 Companies S and R can be named as joint applicants when filing EP-X and validly claiming the priority of DE-X.
TRUE -- G 1/22; GL A-VI, 6.1 |
Q.5 (DP numbering) - 3 MARKS
Company X filed a German patent application DE-X on 18.4.2024. X would like to file a European application EP-X under the EPC. The last day for filing EP-X while validly claiming the priority of DE-X is:
(Select from: 17.4.2025/ 18.4.2025/ 19.4.2025/ 22.4.2025/ 18.10/2025)
(18/4/25 (Good Fri)) 22/4/25 (Mon)
Q.6 (DP numbering) - 4 MARKS
For European patent EP-B, the date of the publication of the mention of the grant is 5.2.2025. Independent claim 1 defines a device having features A and B. Independent claim 2 defines a device having features C and D. -- claim 1: A+B; claim 2: C+D
Company Z is worried that it infringes both claims 1 and 2 in EPC contracting states, and asks you to bring an opposition case before the EPO against EP-B.
The following facts apply: claims 1 and 2 are not unitary; feature C of claim 2 is technically unclear. Prior art D1 dated 1.1.1950 discloses a device with features A and B. Z has fully documented proof of a public prior use of a device with features C and D in the USA before the effective date of filing of EP-B.
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6.1 EP-B can be successfully opposed on the grounds of lack of unity under Article 82 EPC. The proprietor must thus delete either claim 1 or claim 2 during opposition proceedings.
FALSE |
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6.2 Claim 2 is in violation of Article 84 EPC and must be deleted or amended for this reason.
FALSE |
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6.3 EP-B can be successfully opposed owing to lack of novelty of the subject-matter of claim 1 over D1, and EP-B cannot be maintained unamended.
TRUE |
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6.4 A public prior use outside the territories of the EPC contracting states cannot be cited as prior art in opposition procedures before the EPO.
FALSE |
Q.7 (DP numbering) - 3 MARKS
For European
patent EP-B, the date of the publication of the mention of the grant in the
European Patent Bulletin is 5.2.2025. The deadline for filing an opposition
against EP-B is:
(Select from 4.11.2025/ 5.11.2025/ 6.11.2025/ 5.2.2026/ 5/8.2026)
(5/2/25 + 9m -> 5/11/25 (Wed)
.
The opposition fee, if the
opposition is filed today, amounts to:
(Select from 200/ 400/ 690/ 880/ 1000 EUR)
880 EUR
EUR.
Q.8 (DP numbering) - 4 MARKS
Company Kung-Fu based in Shanghai (PR of China) would like to file and prosecute applications before the EPO. Kung-Fu will be named as applicant. For which actions before the EPO is representation by a professional representative required?
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8.1 Filing an EP application having a Chinese priority claim
FALSE |
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8.2 Filing translations from Chinese into an EPO official language after filing
TRUE |
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8.3 Paying the filing fee
FALSE -- anyone can pay; GL A-X, 1: "Fees may be validly paid by any person." |
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8.4 Paying renewal fee
FALSE -- anyone can pay; GL A-X, 1: "Fees may be validly paid by any person." |
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8.5 Replying to a communication of the examining division
TRUE |
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8.6 Filing an appeal in the case of refusal of an application by the examining division
TRUE |
Q.9 (DP numbering) - 5 MARKS
Your client Ms Y is a natural person resident in Serbia with ten pending European patent applications as applicant. Ms Y has the following specific questions about oral proceedings at the EPO.
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9.1 Oral proceedings can take place before the search division if claims are deemed unclear.
FALSE -- not in Art. 116; note: informal consulation is possible, see GL B-VIII, 3.2.2. last par, but that is not OP |
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9.2 Ms Y can, as applicant and thus a party to the proceedings, attend any oral proceedings related to her ten applications.
TRUE - GL E-III, 8.1, last asentece of second par |
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9.3 The fee for requesting oral proceedings before the examining division is 400 euros.
FALSE -- No fee |
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9.4 Ms Y can, as a member of the public, attend any oral proceedings before EPO opposition divisions where her competitors are patentees.
FALSE [corrected] -- In principle public, but not "any" Art.116(4) gives exceptions; also GL E-III, 8.1, second par |
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9.5 Ms Y can, as a member of the public, attend any oral proceedings before EPO examining divisions where her competitors are applicants.
FALSE -- Art.116(3); GL E-III, 8.1, first par |
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9.6 Not attending when duly summoned to oral proceedings before the examining division will automatically result in refusal of the application.
FALSE -- GL E-III, 7.2.2, last par |
Q.10 (DP numbering) - 3 MARKS
During a holiday period, applicant X failed to reply in time to an official communication under Rule 71(1) EPC from the examining division concerning application EP1. X received another communication from the EPO yesterday: EP1 was filed on 1.2.2018 and is now being deemed to be withdrawn.
What can be done to remedy the situation effectively and at the lowest cost?
Responses
A Request further processing under Article 121 EPC, pay the relevant fee and reply to the communication.
B Request re-establishment of rights under Article 122 EPC.
C Call the chair of the examining division and request the setting of a new four-month time limit.
D File a divisional application based on EP1 as the parent application.
E Request that the application be accelerated under the PACE programme.
Possible remedies: only A
Q.11 (DP numbering) - 2 MARKS
Company Y intends to file a European patent application with the EPO for invention X next week. It is very important to the single inventor Mr Secret to remain anonymous for personal reasons.
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Can the inventor be kept secret from the public? |
YES, Rule 20, GL A-III, 5.2
Q.12 (DP numbering) - 2 MARKS
A European patent has been granted. The patent has a 20 year term.
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12.1 The 20 year term is calculated from the date of filing.
TRUE |
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12.2 The 20 year term is calculated from the date of publication of the granted patent.
FALSE |
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12.3 The 20 year term is calculated from the publication of the application.
FALSE |
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12.4 The 20 year term is calculated from the date of earliest priority.
FALSE |
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12.5 The 20 year term can be extended in a specific contracting state if certain circumstances are fulfilled.
TRUE -- Art. 63(2) |
Q.13 (DP numbering) - 2 MARKS
Danish company X and Swedish company Y are active in the same technical field and have common business interests and a common competitor Z. X and Y are fully independent entities.
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13.1 X and Y may jointly file a patent application under the EPC.
TRUE |
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13.2 X and Y may jointly file an opposition against a granted patent of Z.
TRUE |
Q.14 (DP numbering) - 3 MARKS
Company Q in Greece has developed a complex olive oil press with very many alternative embodiments. The application is now finalised for filing and contains 10 description pages, 5 pages with drawings and 15 pages with 75 claims. All claims are considered necessary at this stage. The application relates to one invention only. Q wants to pursue a filing route whereby the EPO will draw up a full search report for all claims.
EP: 10+5+15 pages & 75 claims -- 60 claims fees (in two amounts) is a lot
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Filing a European patent application under the EPC would be cheaper, i.e. incur lower fees, than filing an international application under the PCT.
FALSE due to claims fees |
Q.15 (DP numbering) - 2 MARKS
Companies A and B each validly file, independently of each other, a European application for the same invention X on 1.2.2025 at the EPO. X is patentable under the EPC.
A Both A and B will be granted a patent for X.
B Neither A nor B can be granted a patent for X.
C A can be granted a patent for X only if B withdraws their application before publication and vice versa.
D A patent can only be granted if A and B mutually request to be considered as joint applicants for both applications.
Answer: A
Please feel invited to comment!
Please do not post your comments anonymously - it is allowed, but it makes responding more difficult and rather clumsy ("Dear Mr/Mrs/Ms Anonymous of 21-03-2025 21:23"), whereas using your real name or a nickname is more personal, more interesting and makes a more attractive conversation. You do not need to log in or make an account - it is OK to just put your (nick) name at the end of your post.
In regards to Q.14. It is stated in the question " wants to pursue a filing route whereby the EPO will draw up a full search report for all claims." The applicant applicant will need to file a PCT with the EPO as the receiving office and International Searching Authority they would still need to pay additional claim fees which would amount to more than just filing with the EPO directly would it not?
ReplyDeleteClaims fees are EUR 275 for each of claims 16-50 and EUR 685 for each or claim 51 and higher. I did not take the effort to calculate the total amount, is is surely over 10k EUR
DeleteThere are no excess claims fees under the PCT and the question states that the application relates to one invention only, so presumably no unity issues that would result in a partial search.
DeleteThat is why an EP will be much more expensive than a PCT
DeleteThank you so much for providing this so quickly!! I look forward to the (provisional) answers on the claim analysis part.
ReplyDeleteThanks for doing this, very useful. But why is the answer to Q9.4 false? It is not true that Ms. Y can attend ANY oral proceedings AS A MEMBER OF THE PUBLIC. Art.164(4) gives the OD power to decide that proceedings will not be public and might do so. Visser (latest edition) at 2. of p330 gives the example of cases relating to genetically modified products often not being publicly accessible.
ReplyDeleteI think this gives the answer: the DBA tells you that exotic exceptions (for which there is also no hint) are not to be considered:
Deletehttps://pre-exam.blogspot.com/2022/02/on-interpretation-of-pre-exam-questions.html
(You would also not even be able to calculate a time limit of you would consider the possibilities of exceptions: who knows whether there will be a force majeur between now and the currently calculates expiry that would extend the time limit under R.134(5)?)
Delete@ Roel - thank you, I wasn't aware of this to be honest. Quite outrageous in my view, hopefully the question is neutralised by the board.
Delete@ Roel - sorry I missed your second comment in brackets when I was responding. I take your point regarding time limits and force majeure, but there is a difference between a time limit calculation question which requires you to take facts given at face value and not speculate about the possibility of exotic situations, and being asked to label a statement as true or false.
DeleteBut would you consider an exception explicitly stated in an Article as exotic? There are additional exceptions than the one mentioned by John Smith, as given in GL E-III 8.1. I would argue that the word "any" shouldn't have been used if "True" is the correct answer.
DeleteI consider GL E-III, 8.1 “Generally, the public will only be excluded whilst such information is being given.” to indicate that the OPs are open, but only a short period during that OP may be closed - so Mr,Y can attend the OP with possibly an exceptional gap. So I donot think it disqualifies the “any” - but we will need to see what the committee intended and how that relates to the DBA’s reasoning on interpretation of (T/F-like) exam questions ;)
DeleteReconsidered our answer. It is likely that the exception has to be considered, so that the answer is FALSE: exception in Article is exemplified by two examples in GL A-III, 8.1, second par, so that they "any" was presumably the trigger/hint/link to consider those exceptions.
DeleteThank you, @Roel. Don’t you think this goes beyond merely testing ‘declarative knowledge’?
DeleteThanks for taking the time to post the answers @Roel. I also hope this question will be neutralized. If we consider the exceptions stated in GL E-III 8.1 for question 9.4, should we consider them also for question 9.2? (That paragraph of GL says that also the parties may be excluded). Thanks
DeleteSorry, ignore my previous comment. 9.2 says "as applicant" so it can be related to opposition oral proceedings
DeleteThanks for posting your answers so quickly! regarding Q 9.4, what are your thoughts regarding the statement stating "any oral proceedings..." and A. 116 stating "in so far as the department before which the proceedings are taking place does not decide otherwise"?
ReplyDeleteIf the statement would state the opposite, i.e. something in the line with "there are no oral proceedings before EPO opposition divisions where her competitors are patentees which, as a member of the public, Ms Y cannot attend", would you have answered "True"?
John Smith got there before me :)
DeleteThank you for providing this so quickly!
ReplyDeleteJust a question, why is 9.1 false? I thought the Guidelines specify that, even though not common, in principle oral proceedings are possible before the search division. Therefore, they can take place. Or did I get this wrong?
Thanks!
S-D
We answered false as Search Division is not listed in Art.116 and they do not take decisions. Which section in the GL do you refer to?
DeleteIt seems that the Search Division (SD) is very restricted in having informal contacts (i.e. consultations) with the applicant, see GL B-II, 1.1. For example, the SD may consult the applicant when it is deemed impossible to carry out a meaningful search of the invention. This GL also says that the SD should tell the applicant that any issues they wish to raise will be dealt with in examination. If informal contacts are so restricted, it indicates that SD would be even more restricted to hold oral proceedings.
DeleteGL C-VII, 5 also points out that the Examining Division (ED) must honour a request for oral proceedings filed BEFORE the ED became responsible for the application.
Based on these two GL:s, it looks like oral proceedings will not be held before SD. At least not regarding an Art. 84 issue.
Dear Roel,
ReplyDeleteI interpreted, GL E-III, 2 and 4 wherein "If, in the course of proceedings, a party requests oral proceedings, the competent department must grant this request as further explained in this section." and "The competent department of the EPO may arrange for oral proceedings to take place without a request from a party if it considers this to be expedient." such that oral proceedings might be possible. However, I also understand your argumentation that it is not listed and doesn't take decisions.
Thank you in any case!
S-D
Thank you Roel for posting answers so quickly. The one question where I differed from you was 4.2. While I realised there is now a rebuttable presumption that a priority claim by a different applicant is valid and that the EPO will not (normally) challenge this, I still thought the priority claim was not definitively valid absent an assignment of the priority right. Even if this assignment could be easily made by Boer and is really a formality, the question did not indicate that the assignment had been or would be made. I guess the counter-argument would be that the agreement to assign the priority right can be implicit and need not be in writing/signed.
ReplyDeleteWhether it has been made or not is not relevant in view the (rebuttable but strong) presumption of validity. That Mr. Y own both companies, supports that there was an intention (the being able to cooperate was an essential argument in G 1/.22 - although the details of the decision are beyond the Foundation syllabus; only what is in the GL).
DeleteFurther, the statement says ""Company S CAN be named as single applicant". As Mr. Y owns both companies, he is in the position to arrange the transfer of the priority before the subsequent filing by himself, so that he CAN file the subsequent applicant in the name of S while also having the priority right owned by S.
I gave the same answer as GC, as I understood ‘validly claiming’ to be distinct from ‘presumption of validity., since the question explicitly states that the companies are different, with no indication of any transfer of the priority right.
DeleteI had the same reasoning. Although it won’t be checked by the EPO, I did not think that it would be « valid » without an action on his part
DeleteAlso, agreeing with the previous comments, Mr. Bohr *could* name the company S as single applicant if the rights are/have been transfered. However, the question does not give any hint that such transfer of rights is even considered. I would also consider there might be some situations where Mr Bohr, eventhough being the only(?) owner of the company R, would not be able to transfer the rights.
DeleteI think this just shows that to questions that have small nuances, the possibility to answer only true or false, without giving any argumentation, is not the proper way.
-Aj
I agree that the rebuttable presumption argument has only an indirect connection to 4.2, as it answers a different question "will EPO raise any objections?". For a positive answer on 4.2 we should have some agreement between S and R, and there is no reason to read such agreement into the question. Yes, the agreement can be (easily) arranged. Yes, it can probably even be backdated by Mr Bohr if we wants to do so. But can S just validity claim priority from R? No, without an agreement it can not, because they are not the same applicant or a successor in title.
DeleteSimilar situations are possible, for example, with incorrect naming of inventors - EPO does not check it, and if patent has no commercial value chances are that that no one will object. Still it cannot be said that you "can" designate wrong inventors.
-SV
@ Anonymous 22 March 2025 at 10:12 - So you agree that there is a possibility to do it (timely arrange the transfer), so that it "can" be done as the statement is asking.
DeleteIf possibility to do it is enough without showing any intention to do it, then there is no point stating Mr Bohr is the owner of both companies. The owners could be anybody, and still would be able arrange the transfer as there was no "formal requirement" for the transfer.
DeleteAdmitting not taking part in the Delta Patents course, instead attended the EPO course and in there it was clearly stated that all the necessary information, in addition to the material stated in IPREE, to answer the questions is given in the question itself, and if something is not said in the question one shouldn't assume that it might have been said.
That he is the owner allows him to satisfy the inplementing regulations, Rule 52 and 53, which is a precondition for the presumption of entitlement: he has/knows all info for the declaration of priority and be able to get (as owner of R) and file (as owner of S) the certified copy. An arbitrary third person cannot get that info and copy, do cannot satisfy rule 52-53, so cannot be presumed to be entitled.
DeleteThe quesion is quite sophisticated for a Foundation paper, that is based on declarative knowledge (See IPREE) and level corresponding to one year experience (see Communication from Examination Board on F 2025 of 11 March 2025)…
DeleteArbitrary person cannot, but person P1 owning company A and person P2 owning company B can perform all the same steps together as Mr Bohr can by himself.
DeleteThen there is also a question what is an owner of a company able to do legally in different EPC countries. Not knowing the national law in Denmark, but it is possible that if Mr Bohr isn't for example in operative position in the company he owns, he is not legally able to do the mentioned steps or for example have right to sign anything in the name of the company.
@Roel: No, I do not agree that "it "can" be done as the statement is asking".
DeleteCan a national of Argentina validly file a PCT with EPO as rO? Yes, he can move to Europe! Or he can give a fake Spanish address, EPO does not check them! I honestly do not think it is correct to read (or to draft, for that matter) exam questions like this.
(Apologies, my previous comment here was undersigned, but still from Anonimous).
-SV
"National and resident of Argentina" in the comment above
Delete-SV
I'm on the same page as GC and Simone. Simply couldn't see any hint that a transfer of rights might have occurred...
DeletePretty hilarious that I reckon I lost 26% of my marks (13/50) for getting a grand total of ~8% of the total questions available incorrect (3/~35 sub-questions - Ironically mostly the ones that are being debated here). Doesn't seem particularly fair, especially given that pre-EQE marking would have lost me 6 marks at most.
ReplyDeleteI don’t think that we know yet how getting one sub-question wrong will affect the score of the question
DeleteI'd be very happy to be wrong :) I don't even know where I got this impression from, but I thought only full marks are available for each Question? This would also match with the instructions to candidates regarding unanswered subquestions?
DeleteIndeed, only full marks apparently. Which is unexplainable unfair.
DeleteI really cannot follow the reasoning for this.
I wasn't aware of this full marks thing, how does it work? Does anyone have basis for it?
DeleteNo clear and unambiguous basis :). Just inferred from a combination of the below from the exam schedule and instructions
Delete1) The Test is auto-marked - i.e WiseFlow can only tell if the correct answer has been selected or
2) Leaving a sub-question blank (i.e. not selecting a correct answer) leads to zero marks for the entire question
I could well be wrong though, and I hope I am. We should not be at a (albeit small probably) risk of failure when getting >90% of the total sub-questions correct; this would be the case if we are getting a single sub-question wrong in 3 questions worth 5 marks each.
You will not get only 0 marks if you have 5 out of 6 statements correct and 1 wrong (You will however get 0 if you left one unanswered).
DeleteBut information as to how the marks are awarded is not yet available
Regarding Q1.3, I would argue that one cannot file PCT application at EPO choosing some other office as rO. Due to the safeguard EPO will transmit the application to IB after they find out the language is not permitted at EPO in international phase and IB will become rO. It doesn't change the fact that the application was filed at EPO with the intention for EPO acting as rO, and because of the safeguard it is validly filed, i.e., no loss of rights. I'd reckon EPO would act as rO until they discover that the language of the application is not official EPO language.
ReplyDelete-Aj
Correct, except they the EPO than does NOT acts as the receiving office, but just passed it on: it receives the IA on behalf of the IB who is the receiving office. EPO will refund all paid fees (as they were not the rO, no legal basis for the payment, refund in 19,4(b)) and you need to pay to the actual rO = IB.
DeleteSo, it was a valid filing.
But the EPO was not the receiving office - that renders the statement False.
But as the filing was valid and the IA
continues (with IB as rO but same or even more ISA choices), who really cares that something was legally wrong? I would not consider it unfair to also consider True a correct answer for this reason.
Also, this question is, imho, far beyond “declarative knowledge” and beyond the level of a Candidate with 1 year experience. I was very surprised this topic was in a Foundation exam.
Regarding Q9.4, "any" in English generally means "one or more" and not necessarily all. "Toute" in French generally means "all". I am not sure about the German version, but there may be some discrepancy depending on language here
ReplyDeleteWould it really make a difference for the answer?
Delete"9.4 Ms Y can, as a member of the public, attend any oral proceedings before EPO opposition divisions where her competitors are patentees.". I have not seen the French version, but guess from the comment that it would be like "Mme Y peut, en tant que membre du public, assister à toute procédure orale ...". In that context, 'toute procédure orale'' in the singular means any OP, thus no discrepancy. If this was the case, more simple language could have been selected (for example "n'importe quelle procedure orale"). As pointed out by Roel, it does not appear to make a difference for the answer.
DeleteQuestion 2.5 you answered False due to Art.21(3)(c). However, as all fee were duly paid, would not the examining division decisions that need to be appealed be based only on Article 21(a) and (b)?
ReplyDeleteWhy would paying fees escape art.21(3)(c)? The latter covers decisions other than those mentioned under a and b - E.g., deciding to reject a request oral proceedings.
DeleteAh okay, I get it. I was under the impression that appealable examining division decisions were only either fee related or art 21(3)(a) and (b) cases
DeleteI understand. Took me quote a bit of time to look for examples on the GL… could not find any… feels unfortable to answer based on the wording of a catch-all provisions alone… but is possible. And can think it of some examples of other decisions, but difficult to find some that can be appealed itself and not just together with the final decision.
DeleteFirst of, thank you for taking your time to answer these replies. I have been looking and could not find an instance where 21(c) was applied not related to fees or in combination with (a) and (b). I find it really strange that for this specific question they ask about DK-2. If it was a general question regarding all cases of course 21(c) may apply, even if that is rare. Hopefully this wrong answer does not cause me to loose the whole 5 points
DeleteHi Roel and the Delta Patents team,
ReplyDeleteThank you for putting this together so quickly.
I still disagree with point 4.2(b) regarding S being named as a single applicant and validly claiming priority. For this to be valid, certain assumptions must hold—such as the "easy assignment" you mention—but these are not explicitly given as facts. This is crucial if a third party were to challenge the priority claim.
The guidelines provide multiple examples of how G 1/22 and the requirement that "the applicant for the European patent was the applicant, or is the successor in title to the applicant" should be interpreted. In all cases, the priority applicant is at least a co-applicant.
Moreover, this question does not align with the purpose of the paper, which is to test declarative knowledge. Answering it confidently would require going beyond the scope of the examination documents.
Thanks for this! A bit annoying that they did not provide us with a calendar on Wiseflow...
ReplyDeleteI do not understand question 5 response considering that:
ReplyDeleteit is one thing to file in time and the papers of filing to arrive late and it is another thing to file on purpose after the 12 month period the first day when the office is open
Also the period of 12 month is hardwired in the EPC and thus cannot be prolonged by Guidelines or anything.
Art 120 EPC expressly refers to the Implementing Regulations for the manner of computation of time limits and the conditions under which time limits may be extended.
DeleteThank you for the quick answers :) I am really curious on what will be decided regarding Question 4, option 2. I asked the attorneys in my firm what they would reply and they said they would go with False (on whether Company S can be named as single applicant). In their view, G1/22 does not change the requirement of Art. 87, requiring the same applicant or his successor in title. They believe that the way the question is formulated is not enough to hint that a transfer of rights has occurred.
ReplyDeleteI completely agree with your comment and with this interpretation.
Deleteresults are out
ReplyDeleteGutted. I got 34/50 on the first part which has led to a fail. Are these results final or is there still hope that some answers may be altered?
ReplyDeleteSame with me. I got 33 in first part.
DeleteIt is even more frustrating getting 34/50 in the first part when I got almost 90% in the second part. So cruel.
DeleteThe auto scoring seems to have been brutal and way out of line with the mock answers here. I am very lucky I passed and very sorry to hear that some people have failed. When will we see the answers including neutralized questions?
ReplyDeleteThe EPO solution seems to disagree with some of the answers here, as I was sure I failed after comparing the model solution with my answers. In part 1 of my exam 4 of the questions seemed to be answered wrong but I passed with 44 points. In part 2 all of my answers were the same as the model solution here so I expected 100% correct but "only" got 47 points.
ReplyDeleteI got 48/50 in legal and would have gotten 41 if delta was right in the priority question. So epo went with the article, not with the G
DeleteQuestion 10 in part 2 was neutralized, so the maximum achievable mark for part 2 is 47.
DeleteIs the EPO's solution for paper F out yet?
ReplyDeleteyes - https://link.epo.org/elearning/EQE_2025_examiner_report_F_EN
DeleteExam report is out - it is absolutely ridiculous they only award partial points for 1 incorrect question. I got 34/50 for part 1, thus failed by one mark yet on one question I got 4/6 correct answers which resulted in a score of 0/5, which is absolutely disgusting considering I only needed 1 mark to pass!
ReplyDeleteand this has happened on two occasions. I have dropped 10 points (as I got 4/6 correct on 2x 5 pts questions, when they only aware partial marks for 1 incorrect sub-question). So basically I got 8/12 sub questions correct but ended up with 0 points when I only I needed 1 point more to pass - how is this even remotely fair?!
DeleteAt least it is better than the mock, where they gave us 0 for a 5/6. still didnt save me from failing part 2 by 3 marks...
DeleteWell to top it off for Q12, I got 4/5 correct but 0 marks was awarded. Again, only missing out on one mark to pass. This is beyond deflating.
DeleteSo I get 0 marks for 3 questions (4/6 correct on two occasions and 4/5 correct on another), resulting in 12 marks lost for getting 12/17 sub questions correct. Yet, had I got 0/6 on the first two occasions but 5/5 on the last occasion, instead of 4/5 resulting in only getting 5/17 sub questions correct instead of 12/17, I woud have got the 1 mark I needed to pass... How the hell is this even remotely fair?!
DeleteMany thanks for the link. Sorry to hear you just missed a pass. The logic behind the marking scheme is difficult to understand
ReplyDeleteComplete clown show. I got 46/48 sub questions correct for part 1 but that translated to 88% of available marks!? The marking for M1/M2 needs to be better than this.
ReplyDeleteMy answer and rationale on Q4.2 (i.e. G1/22 question) were same as the one provided above by DeltaPatents. Interestingly, the answer to Question18(a) of Daily D Question 2024 (currently available on EPO e-Learning platform) is also in agreement with such answer and rationale:
ReplyDelete"Since the EPC does not impose formal requirements for this transfer, there is a strong presumption that applicants claiming priority are entitled to it, with the burden of proof resting on those challenging this entitlement (see Guidelines A-III, 6.1). In the present case, there appears to be no conflict between applicants X and Y, aligning with the decision that the EP is owned by Y. Therefore, the priority claim should be considered valid."
And now the answer to Q4.2 of the present F paper appears to contradict the above interpretation. Consequently, I'm still unsure how such question should be answered, if it appears in a main paper. I hope someone appeals this question to get to the bottom of it, because I'm not willing to spend 1200 EUR to appeal.
Interesting analysis indeed.
DeleteHowever, in the daily D question there is a slight difference which is that the applicant of the FR application (priority) gave consent for the ownership of the EP application.
Even though the right to claiming the priority is not explicitly indicated in the agreement, there is somewhat a consent which is not stated in question 10 of the paper.
I am also confused. The response to Question 4.2 suggests that the claim to priority in this situation cannot be valid, meaning that it is deemed invalid. For the claim to be considered invalid, the entitlement of Company S to priority must be contested, and there must be evidence demonstrating that this entitlement does not exist (my interpretation of GL A-III 6.1: “The burden of proof is shifted, and the examining division, opponent or third party challenging an applicant's entitlement to priority has to prove that this entitlement is missing.”)
DeleteAs stated in the Exam report, there is no information indicating that a transfer has occurred. However, the transfer of the priority right is now always assumed to have occurred. The EPC does not impose formal requirements for transferring the priority right (see GL A-III 6.1, G 1/22, and G 2/22). There appears to be no need for any explicit agreement, even orally. Therefore, it seems sufficient for Mr. Bohr to have intended (even if he did not communicate this intention) that the priority right should be transferred between his two companies. One might argue that the act of claiming priority with company S as the sole applicant indicates Mr. Bohr's intention.
More importantly (in my opinion) there is no information suggesting that any third party has contested company S's entitlement to priority, nor is there any information that there exists proof that such an entitlement is missing, which appears to be necessary to invalidate the claim to priority.
Since I got this question wrong, I realize there are flaws in my reasoning above. I'm still uncertain how to answer a similar question in future exams...
This question is very confusing as it can be both TRUE and FALSE depending on the circumstances. I would have expected this one to be neutralized.
DeleteBoth companies are owned by Mr Bohr.
DeleteThe only situation in which the priority would not be valid would be if Mr Bohr do not wish to transfer the priority right. It seems highly unlikely.
The very fact that company S has claimed the priority of the DEX application implies a desire to transfer the right of priority.
Therefore, it does not make sense to consider the priority not valid.
The response to Q.4.2 can only be TRUE.
The EPO seems to have lost its way with this question...
Ownership does not mean operational control, so in majority of real life cases "Mr. Bohr" is completely unaware of these games with priority rights. There is just no reason to presume intention to transfer.
DeleteThere is no reason to presume that a third party successfully contested company S's right priority either, which would be necessary to invalidate the claim to priority (following G 1/22, the burden of proof has shifted).
DeleteThe question was whether he could validly claim the priority of DE-X in the situation as presented. In this case, the statement does not mention any transfer of the priority right from R to S and therefore the priority cannot VALIDLY be claimed by S, whether there is a presumption or not (because even with a presumption a third party could validly contest the priority claim). And it's a mistake to make interpretations beyond the statement of the question, as if R would have logically transferred his right to S. This is very common in EQE exams and yet it's clear, stick to what it says word for word, don't make assumptions.
DeleteWell, isnt that the difference between before and after G1/22. The claim to priority is valid until proven otherwise. You are stating that a third party COULD validly contest the priority claim. Thus you assume that Mr Bohr (or whoever makes the decision at company x) did not intend to transfer the rights (there is no formal requirement on a transfer of priority right). Further, in order for the claim to be invalid, it is required that a third party in fact DO contest the priority claim, and is successful in doing so. So in order to determine that Company S CAN NOT validly claim priority, you need to make some assumptions as well.
DeleteTransferring a right requires action. If the action of transferring the right is not mentioned in the statement of the exercise, then it must be accepted that no right is transferred. This is not a hypothesis but a statement of fact. And the presumption of validity is not equivalent to validity as such. A priority claim may be presumed valid but turn out to be invalid. I think that as far as the EQE exams are concerned, as soon as you start making assumptions from statements then you run the risk that the examiner will not make the same assumptions as you. Nobody's going to object to you taking it for granted that the transfer of rights didn't take place if there's nothing about it in the statement, are they?
DeleteTransferring the right does not necessarily require an action, as GL A-III 6.1 states that "The EPC does not set out any formal requirements for the transfer of the priority right". It appears sufficient that Company R/Mr Bohr intends for the right to be transferred. On the other hand, since "The burden of proof is shifted" according to G1/22 (also GL A-III 6.1), invalidating a claim to priority may require an action.
DeleteI do agree that there is no information provided about any transfer, and we are unaware of the intentions of Company R/Mr Bohr. However, since the word "can" is used in the question, the lack of information whether the claim to priority was e.g. a mistake by Mr Bohr (or for some other reason not allowed by Mr Bohr/Company R) is equally important. I still believe that the given information is insufficient to definitively determine that priority _cannot_ be validly claimed.
Having that said, your answer was evidently what the committee sought, and I do agree that the given information is equally insufficient to definitively determine that priority _can_ be validly claimed.
Another aspect of the question is that Bohr is the inventor, but company R the initial Danish applicant, so the ownership of the invention would have been transferred to R by way of employment or a separate assignment agreement from Bohr to R. Therefore, for company S to validly file the later EP patent application, a further assignment of the invention (or at least the EP patent application for the invention) would need to be made from R to S, but there is no hint at that.
DeleteJust to put my comment above in context, I believe in G1/22 and most other real cases where the right to claim priority was challenged, concerned priority US applications. Up until a few years ago, the inventors of a US application were always the applicants even if the invention was owned by their employer company from the outset. The standard confirmatory assignment from the inventors to the company typically did not expressly include the right to claim priority, and this led to challenges to the priority claim for later EP applications. In those cases, the chain of ownership was never in question, only (somewhat artificially in my view) the right to claim priority. So I think the fact situation of this question, where the ownership chain is not clear, can be distinguished from G1/22
DeleteAlso, in the daily D question it seems that (absent an agreement between companies X and Y) ownership of the initial application did not vest in X since there was also an inventor employed by Y. So the agreement referred to was necessary in order for X to legitimately own the first application and Y to legitimately own the second application. The question suggests that, since this was the intention of the parties, the agreement would logically include the right for Y to claim priority to the initial application. But I agree with James that the reasoning is inconsistent given the factual gaps in both questions.
ReplyDeleteGC
Is there any way to complain about the marking with a real chance of success?
ReplyDeleteAnd for anybody who has more information on how to do this, please share that information. I'm devastated to miss out by a mark having got 8/11 sub questions correct in two questions which resulted in 0 marks.
DeleteI did very well for part 1 but failed part 2 by a hair for the same reason! I am not sure if it is worth sending an email to ask/complain about the seemingly unfair scoring system.
DeleteFor me it doesn't make sense that I could have got 7 sub questions more incorrect providing the 8th sub question was part of another question that would have given me the last mark I needed to pass. How can I get 7 more incorrect in this situation and still pass, yet failing for knowing more by answering more sub questions correct results in a fail? It's beyond sad.
ReplyDeleteSorry to hear this. It's the first time I sit this Exam but I have the feeling that the EQE has been historically very obscure and at time unfair in the grading.
DeleteI guess they determine the marking so that at max 75-85% has a PASS.
Manipulating the scoring system so X amount pass is very unethical. I got 37/44 sub questions correct yet failed. So the exam is definitely more on luck with the marking scheme rather than demonstrating knowledge. Never known anything like it.
DeleteIt is advised to submit complaints (appeals) to the examination secretariat (thorugh EQE) portal. They will be sent to the Examining Board
ReplyDelete(not appeals*)
DeleteI followed this route with a concern regarding the marking scheme and I received a generic reply on how to appeal. Having to pay 1200 euros to ask for a fairer marking system is ludicrous. I am very fed up with this industry already.
DeleteIf anyone failed and wants to appeal you should crowd-fund. I am lucky enough to have passed but the marking scheme was ridiculously unfair. I would throw in 50 EUR to see this go to appeal...
ReplyDeleteI second this and would chip in 50 eur too.
DeletePlease think it through before spending your hard-earned money. The examination board will likely not reconsider their marking scheme in an appeal and the disciplinary board of appeal (to which your appeal would then be transmitted) has stated in D1 /92 that they will only check whether the decisions of the examination board do not infringe the REE, the provisions relating to its application or higher-ranking law. They do not make value judgements. While the marking is stupid and overly harsh, I don't think it has broken any principles of law so low chance of success in my opinion...
DeleteAnd there lies the problem because you are absolutely right because it doesn't infringe the REE. So the candidates have to put up with ridiculous marking schemes, which doesn't value overall legal knowledge, rather who can get the most subquestions correct based on which questions the examiners decide are worthy to offer partial points to. At least offer partial points to all questions not a select few. It's beyond ridiculous to the point that it has me contemplating whether I want to continue studying and putting in a lot of effort during my free time to work in an industry which prides itself on competency yet continues to conjure up stupid marking schemes.
DeleteHappily give too
ReplyDeleteAnonymous is absolutely right about the intransigence of the examination board and the disciplinary board of appeal. There is a low chance of success, but it’s a point of principle. An appeal is just a vehicle to demonstrate how pissed off everyone is and to highlight these points in public. So for that I would happily give 50 EUR.
ReplyDeleteI agree that they may not change the marking scheme as they will have to admit what a complete mess they made.
ReplyDeleteHowever, considering this is the first exam in the new format it is important to highlight the injustice. Either all or no questions awarded partial marks.
The injustice affects everyone whether this year or at a different time point. People put in time and effort and the EB should aim to test peoples knowledge which this exam did not!
For the sake of argument imagine no partial marks were awarded for any of the questions Would that change which people passed?!
ReplyDeleteNo, but offering partial marks for some questions but not others has failed people like me, who was 1 mark shy but got 4/5 sub questions correct for a particular question and was awarded 0 marks.
DeleteWe the candidates have to put up with the marking schemes, because at the end of the day, it is the EPO/epi that decides how easy or how difficult they want to make the exam. If they wanted they could have just as well have given partial points to no questions, but they didn't do that, so it probably already is a compromise within the examination boards and they probably were originally not planning on giving partial points. I think that if they simply indicated the partial points / no partial points in advance, that people would not be as pissed of, so they better do that next year. But I doubt it would have mattered much for the marks...
ReplyDeleteBut please please try to not let it sour your day, there is more to this job/to this life than those exams.
Of course it matters - to offer partial marks for some questions but not others has failed people like me. This is more down to luck of which questions get offered partial marks and which don't rather than legal knowledge or lack of.
DeleteNo I meant that the indication (of partial points/no partial points) would not have made a difference, of course I agree that the division itself has a big effect on the markings. I understand your frustrations with the marking and I think the EPO messed up by not communicating clearly about the marking scheme in advance, but all I'm trying to say is that they are free to change the marking scheme and the difficulty of the questions as they like, whether you and I like it or not. I do think that some answers by the EPO should have been neutralized though.
DeleteThere shouldnt be a compromise after! You seem to miss two aspects! the unjust part of the exam and the fact that the exam has not achieved what it is set out to.
ReplyDeleteIf there is a crowd-funded appeal then it will no doubt get picked up by the specialist IP media and will reverb throughout the profession. As others have said this is about a point of principle and bringing the conduct of the exam to light. It was a mess frankly, and I am someone who was lucky enough to have passed.
ReplyDeleteAs somebody who luckily passed, if somebody does start a crowd-funded appeal, please send the link so I can also add 50 eur to the pot. It would also be interesting to have an appeal with numerous candidates signing a petition in support. This really needs to build some traction and raise awareness throughout the industry as the Exam was completely unjust.
ReplyDeleteFF
ReplyDeleteFor Q6 which was worth 4 marks, I got 3/4 correct and received 2 marks.
ReplyDeleteThanks for the answer. So possibly 50% of the total marks but who knows if the same logic applied for the rest too
ReplyDeleteIf everyone that got partial marks can state what they got for the specific question it would be useful to know how marks were allocated
ReplyDeleteFor Q9 (5 marks), I was awarded with 3 marks for 5/6.
ReplyDeleteThank you
DeleteCan somebody please explain to me why Q9.4 Ms Y can, as a member of the public, attend any oral proceedings before EPO opposition divisions where her competitors are patentees - is false and not true? The word "any" could be interpreted as one or more. Shouldn't the statement say "all" not "any" to avoid any ambiguity?
ReplyDeleteNot a native speaker, but I feel that the meaning of "any" is slightly different in questions and statements. What you are talking is the question meaning ("Can I attend any of the proceedings?" - Yes, if you can attend at least one). In the statement "any" means that all options are available for you to select from ("You can attend any of the proceedings. All of them are public, the choice is yours")
DeleteI just paid the appeal fee today and will file my appeal tomorrow via fax based on this question being unclear and ambiguous. Let's see if I get my 1200 euros back haha
DeleteGood luck!
DeleteRule 4: Pursuant to Article 8(1)(d) REE, details regarding the marking shall be entered on the marking sheets. What do you all understand by this? Does it imply that details on each question should have been given?
ReplyDeleteI interpret this as that while correcting the answers, the examination board needs to indicate how much marks they have given for each answer. I don't think it has much meaning in such an autoscoring exam but it will be relevant when answering the more open questions in the main examinations.
DeleteAgreed
Delete(3) The purpose of this paper shall be to assess candidates' ability to answer legal questions and questions relating to the drafting of claims as defined in Article 1(4) REE. I think this has been breached
ReplyDelete100% agreed. I could have got 7 sub questions less correct and still passed had the 8th correct sub question been apart of a question that offered partial marks. How can one pass with 7 less questions correct but fail for answering more right?! That to me is more luck than knowledge.
DeleteBeyond my understanding too!
ReplyDeleteFor those interested - I filed an appeal for question 9.4 of Part 1 based on the English word of "any" versus "all." I filed it on May 13 and just got the decision on May 29 - they reversed and have granted me a PASS!! I guess my arguments persuaded them. I am not sure what it means for everyone and whether they neutralize it or not, but it was some good news for me personally. Beyond stoked :) I also would like to thank those here as I used the discussion here as a starting point for my appeal. This blog is very helpful!!! I encourage everyone to always post their thoughts!
ReplyDeleteI saw it based on the article published by Fillum. Well done! I guess this only applies to the person who appealed (you), which is slightly unfair for those who failed due to this ambiguous question. But again, well done!
DeleteI believe that if the question is neutralized and that would have made you pass the exam, you should have received an email indicating that you have passed. If not, you may need to contact the examination sec.
Delete@FF - that is exactly what I have done. Still waiting on a response but I will remain optimistic. OP - congratulations on your successful appeal!
DeleteHi All,
ReplyDeleteIs there anywhere I can see the answers I provided to the questions in the Exam?
I spoke to the Examination Secretariat and the 9.4 question appeal only appeals to the appellant and therefore I have still failed. How the hell can it only apply to one person!!!
ReplyDeletehttps://www.epo.org/en/legal/case-law/2022/clr_v_c_2_6_4.html - so I guess it only applies to the person that appeals. It what world is this fair. I simply give up.
Delete