Our provisional answers to F 2026 – Part 2
This year the invention in the part 2 case of the F paper had a lot more body than in the 2025 paper. The invention was about reinforcement of concrete, in order to make it better suited to withstand tensile forces. While in the prior art steel-base reinforcement structures were used, the invention proposes to use fibres instead. The first thing that caught my eye was that we are presented with a significant number of different embodiments. Also there is quite some information in the paper about definitions (what something is or is not) and even a non-working embodiment.
After we received the questions and
printable documents from some of you (thanks!!!), Sander and I sat down to do
the paper. Below you’ll find what we came up with. Please note that this is
just our take on the questions, and that our answers and considerations may
deviate from the official ones.
Q1: Are all items D1 – D4 considered as being comprised in the state of the art under the EPC?
YES
The filing date of the application is 12
February 2026. So, according to art. 54(2) EPC, everything made available to
the public before that date is comprised in the state of the art.
D1: video published on internet platform
on 31 Dec 2025 -> yes, publicly
available before filing date
D2: US application published 1980 -> yes
D3: EP application published 2023 -> yes
D4: history book from 1960’s about ancient
construction methods -> yes
Note that the question is not about the
relevance of the contents of D1-D4 for any of the claims as filed.
Q2:The subject-matter of claim 1 as
originally filed is novel over the prior art D1 – D4
D1: does not
disclose “reinforcement structure embedded in matrix” -> so claim 1 is
novel
D2: does not
disclose “reinforcement structure comprising fibres” -> so claim 1 is
novel
Note: see the final sentence of page 1 of
the description: “Steel rods are not fibres”
D3: all
features disclosed, claim 1 is not novel
D4: all
features disclosed, claim 1 is not novel
Note: straw is natural fibre, see the last
paragraph of page 1 of the description: “Many natural substances are fibres
such as cotton, wool or straw fibres”. So, the straw of D4 contains fibres.
Q3:The subject-matter of claim 2 as
originally filed is novel over the prior art D1 – D4
Claim 2 is dependent on claim 1, so we have
to consider the features of both claim 1 and claim 2 in combination with each
other.
D1: claim 2
is novel in view of D1 because claim 2 is dependent on claim 1 and claim
1 is novel in view of D1.
D2: claim 2
is novel in view of D2 because claim 2 is dependent on claim 1 and claim
1 is novel in view of D2.
D3:
- D3 discloses all features of claim 1 (see
Q2).
- D3 says in the first sentence “a
textile-reinforced concrete construction element for buildings comprises a
woven fabric as a reinforcement structure.”
The 4th paragraph of page 2 of
the description (I would have loved it if the paragraphs were simply numbered…):
“In a preferred embodiment, the reinforcement structure is a textile structure
made of the fibres. A textile structure is a two-dimensional sheet-like
structure made of fibre materials. Such structures are also called fabrics.”->
so the feature that the reinforcement structure is a textile structure
comprising the fibres is also disclosed in D3.
- But then the feature that “the matrix
comprises a mineral aggregate and cement. D3 discloses concrete. According to
the second paragraph of page 1 of the description: “Concrete is a
well-known construction material which is much appreciated for its durability.
It is a composite material comprising a mineral aggregate, such as
gravel or sand, and a binder, which is normally cement”. So, concrete
can have a binder that is not cement, which means that cement is not an
implicit feature (as it is not inevitable). So, however obvious it may be to
have cement as the binder, it is not as such disclosed in D3.
So, D3 does not disclose all
features of claim 2 . So, claim 2 is novel in view of D3.
D4 does not
disclose the matrix comprises a mineral aggregate and cement (instead it
discloses clay), and the reinforcement structure is a textile structure
comprising the fibres. (instead it discloses loose straw fibres and A
collection of loose fibres is not a textile -> see 4th par. page
2 description). So claim 2 is novel in view of D4.
Q4: The subject-matter of claims 3 to 5
as originally filed is novel over the prior art D3
Claim 3:
- Claim 3 is dependent on claim 2, D3 does not disclose all features of claim 2 (see Q3),
So, claim 3 is novel in view of D3.
Claim 4:
- Claim 4 is dependent on claim 3, D3 does
not discloses all features of claim 3 (see above)
- D3 discloses fabric coated with epoxy
resin, fabric made of glass fibres. So D3 discloses fibres coated with epoxy
resin, but that’s not relevant because it does not disclose all features of claim
3.
So, claim 4 is novel in view of D3.
Claim 5:
- Claim 5 is dependent on claim 3 or claim
4; claim 4 is dependent on claim 3. So claim 5 + claim 3 is the broadest
version of claim 5, so that’s the one to evaluate.
- D3 does not discloses all features of
claim 3 (see above)
- in addition, non-crimp fabric is not
disclosed in D3
So, claim 5 is novel in view of D3.
Q5:The subject-matter of claim 6 as
originally filed is novel over the prior art D1 – D4
D1: we had
some internal discussion on this one. D1 clearly discloses the following
features
- “construction element comprising concrete”
-> yes, concrete blocks
- “..further comprises a textile structure”->
yes, the carpet
But does D1 disclose a building? The video
only shows a room. I’ve read D1 a couple of times before answering this question,
but it really just says “room”. As per our later internal discussion (including
not just Sander and myself) we came to the conclusion that you cannot have room
with a carpet in and ready for putting wallpaper up if you don’t have a
building. That would make the building implicit in the disclosure of D1, as it
is inevitable to have a building if you want to do what’s done in the video.
Therefore, out conclusion is that claim 6
is not novel in view of D1.
D2: claim 6
is novel, because there is no textile structure disclosed in D2
D3: claim 6
is not novel, as clearly all features are disclosed (including the
building)
D4: claim 6
is novel, as D4 does not disclose concrete, and also no textile (only
loose fibres)
Q6: Closest prior art for claim 5?
D3: same
technical field and most features in common
Q7: Amended set of claims does not
comply with Art. 84 because:
1. “In a building” renders claim 1 unclear
-> true (GL F-IV, 4.15 (i))
2. Ultra-high molecular weight renders claim
2 unclear ->false, is this refers to a well known material so “ultra-high
molecular weight” has a well recognised meaning in the art (GL F-IV, 4.6)
3. Woven fabric is product-by-process which
is not allowable under 84 -> false, product-by-process claims are not
by definition unallowable
4. Claims 1 and 3 contradict each other
-> true, woven and non-crimp are alternatives, see final paragraph of
page 2 of the description. Note that the claims say “textile structure is”,
not “textile structure comprises”. The textile structure cannot be
woven and non-crimp at the same time
Q8: Amended claim 7 is dependent on
amended claim 4?
No, because not
all features of claim 4 are present in amended claim 7
Note that this question is kind of similar
to the question that was neutralised last year. However, I think in the current
case the situation is rather clear.
Q9: Do claims 1 – 3 meet the
requirements of Art. 123(2):
Claim 1: No.
While the application as filed does disclose a textile structure that is present
in a building, and that the textile structure can be a woven fabric, there is
not disclosure of such a textile structure without the matrix.
Look at the penultimate paragraph of page 1
of the description of the application as filed, which says: “It is essential
for the invention that the known steel reinforcement structure be replaced by a
reinforcement structure comprising fibres and that the reinforcement structure
be embedded in the matrix.” This is also reflected by claim 1 as filed.
So, you cannot leave out the feature of the
matrix, this violates the first criterion of the essentiality test (removal or
replacement of a feature, GL H-V, 3.1).
Note that this is not an intermediate
generalisation! Intermediate generalisation is extracting a specific feature in
isolation from an originally disclosed combination of features and using it
to delimit claimed subject-matter (first lines of GL H-V, 3.2.1). In this
case, the claim has been broadened, not limited.
Claim 2: No, as this amendment has same problem as claim 1.
Claim 3: No, as this amendment has same problem as claim 1. In addition,
there is no disclosure of woven fabric that is a non-crimp fabric. Woven and
non-crimp are presented as alternatives. And claims say “textile structure is”,
not “textile structure comprises”
We
found this a bit of a strange question, as all three claims seem to violate
Art. 123(2) EPC for the same reason.
Q10: Amended claims 4-7 meet the
requirements of Art. 123(2)? :
NOTE: I changed our initial answer with
respect to amended claim 6!
Amended claim 4: Yes. Basis is claims 1+ 2 +3 as filed (minus the optional feature of
claim 3 as filed)
Amended claim 5: Yes. Basis is claims 1+2 +3 as
filed (including the optional feature of claim 3 as filed)
Amended claim 6: No, the second paragraph of page 2 of the description talks about adding the coating tin order to protect the glass against the alkaline environment. There’s no disclosure of the bonding effect in the description. The bonding effect is also not implicitly disclosed (=inevitable) because according to D3 you need a certain thickness to achieve the binding effect and that thickness is not provided in the invention. Therefore the bonding effect not directly an unambiguously derivable from the application as filed and cannot be put it in the claim.
Amended claim 7: This was again one that required some internal discussion, but in
the end we decided that this amended claim complies with Art. 123(2) EPC, so we
are of the opinion that the answer is yes.
It was however a bit of a puzzle. The
claims as filed only give direct basis for the glass fibres, not for carbon. The
final three paragraphs of the description, which talks about the textile
structure do not explicitly mention the materials of the fibres.
In the first paragraph of page 2 of the
description, carbon and glass seem to be presented as alternatives, but there
is no clear indication that you can simply swap glass for carbon in all
embodiments. So, saying that it is disclosed that you can simply replace the
glass fibres in the claims as filed by the carbon fibres seems a bit bold.
We came to the conclusion that there is
basis for amended claim 7 is as follows: when you look at the disclosure of the
description as a whole, the combination of features of claim 4 is disclosed.
Then, the fourth paragraph of page 2 of the description starts with “In a
preferred embodiment, the reinforcement structure is a textile structure made
of the fibres.” The only fibres that are mentioned before that are
useable in for high tensile strength applications are glass and carbon. From
this we concluded that “the fibres” must refer to “glass or carbon”. Therewith,
the description as filed discloses all features of amended claim 7.
Q11: Amended claim 1 novel over D1-D4?
Note:
this felt a bit tricky because amended claim 1 is not clear. But in he end the building was not the feature that the answer hinged
upon.
D1: claim 1 is not novel in view of D1, because the carpet is a woven
fabric
D2: claim 1
is novel in view of D2, because D2 does not disclose a textile
structure
D3: not novel
D4: novel
Q12: Amended claims 5-7 novel in view of
D3?
Am. Claim 5: novel, no disclosure of alkali-resistant in D3
Am claim 6: novel, in view of the dependencies of amended claim 6, the broadest version of amended claim 6 is the combination of claims 4 + 6, And D3 does not disclose the cement. See Q3.
Am claim 7: novel, no carbon fibres disclosed in D3
Q13: The applicant considers filing
another amended independent claim with the following wording:
A construction element for a building, the
construction element comprising:
a reinforcement structure comprising carbon fibres and glass fibres, and
a matrix, wherein
the reinforcement structure is embedded in the matrix.
Would such an amended claim be allowed by the examining division?
No – because
this claim would violate Art. 123(2)/ The application as filed does not
disclose the combination of glass + carbon, see first paragraph of page 2 of
the description: “are either carbon fibres or glass fibres”
Note:
I found this a bit of confusing question. Would this claim be filed in addition
to other claims? If so, what is the question aiming at? R. 43(2)- issues?
Conciseness? In the end it didn’t matter because there is a clear violation of
Art. 123(2) EPC but the question got me a bit confused as it didn’t seem to
give a clear indication in which direction to think.
Q14: The applicant may expect that the
subject-matter of amended claim 2 was covered by search performed during the
search phase?
No, not
unitary with claim 1 as filed, and seems to be related to a non-working
embodiment. In addition, it is broader than claim 1 as filed.
Q15: The applicant may expect that the
subject-matter of amended claim 5 was covered by search performed during the
search phase?
Yes, part of
dependent claim, unitary with claim 1 (same invention)
question 10 6, the description did not disclose the epoxy coating for improving the improving the bond between the glass fibres and the matrix only for to protect the fibres from the
ReplyDeletealkaline environment. Surely that is therefore not a permissible amendment
I agree. Being good for bonding is only achieved between thickness of 0.5mm and 1mm as outlined in D3. Therefore this feature in claim 6 implies a thickness that is not in the application as filed. There are a lot of inconsistencies in these answers in general.
DeleteI agree. Also, D3 discloses that "the effect of improved bonding is only achieved if the coating has a thickness of between 0.5 mm and 1 mm." Since "candidates must accept the facts given in the examination paper and limit themselves to those facts" (R 21 IPREE), I think that the functional limitation in amended claim 6 can be seen as a limitation on the thickness of the coating, and there is simply nothing in the provided application that would disclose this range. The only range disclosed is >0.1mm.
DeleteI agree too.
DeleteI was under the same impression as JSMITH. The description discloses "As an alternative or in addition to using alkali-resistant glass fibres, it is possible to coat the glass fibres with an epoxy resin << to protect the fibres from the alkaline environment >>". It is actually the prior art document D3 which has the wording "The fabric is coated with an epoxy resin to improve the bond between the glass fibres and the concrete matrix."
DeleteI assumed during the exam that this was a clear pointer to the description not containing the wording in question. Further, the description did not providing any information for such improved bonding to be clearly and unambiguously be derived from its disclosure. E.g. no mention of bonding in the description at all.
Rob - not a terrible comment.
DeleteI agree!
DeleteYes, I definitely also thought clear added subject-matter for Amended Claim 6 in Q10. There is nothing whatsoever about improving bonding in our application as filed. This feature is taken from the prior art (D3) — not from our originally filed disclosures.
DeleteI'd love to see an explanation from Delta as to why this is A123(2)-compliant for them. If they claim it's an implicit feature known to the skilled person that the epoxy coating improves bonding (in light of D3 known to the skilled person at the time of filing), and as such, this "technical effect" can be freely added post-filing, then this is not a legit argument for defending added subject-matter.
I agree too. I had the same thoughts and hopefully cl. 6 is considered as violating Art. 123(2)
DeleteThanks for spotting this! Here I stepped into the trap that I always warn my candidates for: don't rely on your memory, check every answer against the documents of the paper. I updated our solution accordingly.
DeleteIs there an inconsistency in how you answered Question 3 and 4? For Claim 2 you say the binder is not disclosed as cement and therefore it is novel over D3, while I'm Question 4 it is the other way around?
ReplyDeleteAnd later in q12 claim 6
DeleteFor paper F, I find it extremely unfair that because of one decision on novelty in Q3 re D3, you would get automatically Q4 and Q12 wrong, which are 9 points! I hope that they will consider this :(.
Delete@A.K.: I have the same issue. We can only hope that they give partial points then. Its sad that you have to hope for luck because of a badly drafted set of questions
DeleteThis comment has been removed by a blog administrator.
DeleteThe answer to Q3 is correct. Forgot to update Q4 and Q12 after the internal discussion we had. All fixed now.
DeleteIn my understanding, Q4 would need to be "novel" for all dependent claims, as they refer to the claim which requires cement, which is not disclosed (if you stick to that interpretation)?
DeleteMaybe there is something wrong with this "foundation paper" if a team of experienced patent professionals apparently struggle to find the correct answers
ReplyDeleteExactly!!!
DeleteSo true
DeleteIf paper F, supposedly suitable to be taken with 1 YOE, requires a team consultation to answer (that is assuming that the answers today will match the examiner's report in the first place), then what does paper F really test? Does it really test "foundations"?
ReplyDeleteThat's really the question...
DeleteI haven't seen anyone mention it yet, but there is a problem with amended claim 5 in the French version. In question 10, we are asked whether amended claim 5 meets the requirements of Article 123(2) EPC.
ReplyDeleteAmended claim 5 specifies that the glass fibres are made of an alkali-resistant glass, however, the French description states that "the fibres are preferably in an alkali-resistant glass" and does not state contrary to the English description that the fibres are preferably made of an alkali-resistant glass".
This absence of the term "made of" changes the answer as amended claim 5 would contravene Article 123(2) EPC according to such a wording.
Thankfully, I've looked at the English description before answering but still, I wonder if this question will get neutralised.
Thanks a lot, Nyske & Deltapatents team, it's great to get your answers, considerations and insights into the questions right after the paper :)
ReplyDeleteIn question 7.2, the description states that "UHMWPE fibres do not adhere to the concrete and cannot be used as a reinforcement structure with concrete.". Doesnt this make claim 2 unclear since the objective problem of the invention cannot be solved with UHMWPE fibres?
ReplyDeleteI interpreted this the same, because why else would they explicitly mention it
DeleteIn my opinion, the amended claim 2 is not unclear, but it contains subject-matter extending beyond the content of the application as filed (as it is a non-working embodiment).
DeleteI agree, Art. 84 states "......... They shall be clear and concise and be supported by the description." Description does not support the claims which contains UHMWPE fibres due to the "UHMWPE fibres do not adhere to the concrete and cannot be used as a reinforcement structure with concrete" statement.
Delete"Clarity" and "supported by the description" are two different things. The question was about clarity.
DeleteArt 84 is about clarity and it states "The claims shall define the matter for which protection is sought. They shall be clear and concise and be supported by the description.". According to Art 84, If claims are not supported by the description, a clarity problem arises. Article 84 should not be confused with Article 83 "sufficiency of disclosure".
DeleteFor Q10 claim 7, I am not sure if I follow the argument that the only fibres that are mentioned before that are useable in for high tensile strength applications are glass and carbon. It is described that "The present invention addresses this problem by providing a construction element with the features
ReplyDeleteas defined by claim 1." In claim 1 the fibres are present. So wouldn't it refer to the fibres of the invention in general? The proposed reasoning seems very specific to expect from candidates of paper F in my opinion.
Agree. There is no basis in the first described embodiment to replace glass with carbon. There is also no basis in the second embodiment as the invention and this embodiment refer to fibres in general
DeleteIn Q12, claims 5-7 would be novel, because they depend on novel claim 4, which does not include all features of D3 when being consistent with the analysis in Q3.
ReplyDeleteThis means that if Delta’s interpretation of Q3 and Q4 with regards to D3 is correct (concrete=/mineral aggregate and cement), then nothing else than understanding of “binder is normally cement” has not been tested in question Q12. And it was already tested in Q3 and Q4. I rather doubt that this one matter would be tested, and would have been crucial for 3 questions. For Q3 and Q4 I’ve chosen that the claim 2 is not novel over D3, and seeing the logic of the test I would still say the same (that disclosing concrete implicitly discloses mineral aggregate and cement).
Delete@Paulina: I hope you are right. But anyway, the question whether concrete discloses cement or not (which is obviously discussable) is awarded with 10 pts (Q3+Q4+Q12) which means 20% of part 2. That is really too much.
DeleteDo claims 1 and 3 contradict each other because woven and non-crimp are alternatives? It is true that a claim comprising "a woven and non-crimp textile structure" would be contradictory. But caim 3 is saying "the textile structure is non-crimp" as opposed to "the textile structure is woven and non-crimp" or "the textile structure is additionally non-crimp". So it could be rephrased as "the textile structure is non-crimp instead of woven". Then this is a question of dependency rather than clarity.
ReplyDeleteJust to be clear - I think interpreting it as contradictory makes sense as well. In the exam, this question gave me a pause. There's no question that the amended claim should be changed to resolve the issue. However is it accurate to call it a matter of contradiction?
It will be interesting to see the examiner's report...
Yup, for me the clarity problem with this claim is that it takes all the features of claim 1 and then adds a contradictory feature in claim 3, e.g.:
Delete– Claim 1: A bicycle, wherein the bicycle is red.
– Claim 3: The bicycle of claim 1, wherein the bicycle is green.
The dependent claim in this case is not an alternative to claim 1. It does not say "The bicycle of claim 1, wherein the bicycle is green INSTEAD of red." It takes ALL the features of the independent claim and then adds something that contradicts claim 1.
Now, if the combination of red and green was somehow disclosed in the description then maybe that would be fine, but in addition here we have clear alternatives (which is the final explanation of Delta, but this is barely a clarity issue as it relies on digging into the description and seeing if the alternatives are technically compatible).
To have alternatives, normally you'd have a construction of this sort:
– Claim 1: A bicycle.
– Claim 2: The bicycle of claim 1, wherein the bicycle is red.
– Claim 3: The bicycle of claim 1, wherein the bicycle is green.
Amended claims 1 and 3 of the exam amount to having the above Claim 3 be dependent on the above Claim 2, which is a contradiction.
DeleteBodhidharma, thanks for your answer. This line of reasoning is clear. But for me this is still a matter of dependency.
That is, claim 3 does not take all features of claim 1. Namely, it does not take the feature "the textile is woven" because it is specified that "the textile is non-crimp". So it cannot be rephrased to "the textile is woven and non-crimp" which would be a contradiction. Therefore, it is not true that it is contradictory. It's just that it's not a true dependent claim - it's an independent claim and actually a supported alternative solution.
Anyhow, let's wait for the examiner's report.
I am also not convinced whether it's relevant what wording would be normally used in practice to validly cover alternatives e.g. in a single claim using an "or" or in multiple dependent claims. In any case, this is not a question of clarity because the scope of protection sought can be interpreted by the skilled person. The skilled person would understand that these are actually two independent claims - if anything this is a matter of inconsistent wording (by suggesting that this is a dependent claim) rather than clarity.
DeleteRon; interesting perspective, I did not even analyze it that deeply because I simply read the question as:
Delete"The claim set [could be considered to be unclear] because [claims 1 and 3 could be considered to contradict each other]".
I fully agree that the lack of clarity may be argued to stem even more so from the dependency (your argument) than from the "contradictory" nature of the additional features — be it because of their technical incompatibility/direct alternative nature (Delta's argument; "the bottom line" of all this chain of reasoning) or because of the linguistic/logical construction (my argument).
With your perspective, the question becomes even tougher for candidates to answer because it moves "up a level" of interpretation and can be interpreted as:
"[The claim set is obviously unclear.] Is a contradiction a valid reason to get an Art. 84 EPC objection?"
So you would not be judging whether *there is* a contradiction but just straight up assuming there is one and then deciding whether that would get you an A84 strike before you even consider the awfully constructed dependency...
Either way, the answer is True, but it only reveals yet another question in this paper where thinking for 30 seconds provides multiple valid interpretations and can lead candidates down winding paths... not ideal
Thank you Delta team for the answers! So, if people where to not account for any partial marking- what do you think would be a 'fair' pass mark for this paper?
ReplyDeleteDefine fair.
Delete55%
Delete53%
Deletea mark that would reflect the difficulty and ambiguity of the exam that would somewhat reflect the competence of a trainee after 1 year of practice
DeleteBased on this definition I think 52% sure be better.
DeleteCompared to 2025, it seems clear that 70 % (the same threshold) would be highly unjust. I am uncertain about 50 % due to the statistical probability inherent in a multiple-choice test, so I would opt for 60 %.
DeleteHonestly I think 51% would be the way to go
DeleteIt will be interesting to see what marking scheme they come up with this year!
DeleteDifficult to say since we do not know how it is marked. But when I assume that no partial points are rewarded (as last year in part 2) and taking into account that the question whether concrete discloses cement or not stands for 10 points, I would also go for something between 50-60 %
DeleteSo a 50% would probably still mean 70% threshold with partial marking! I hope they’ll make a fair marking system!
DeleteI personally think it is very odd that the term "concrete" apparently does not implicitly disclose "cement". I understand that the application itself only states that cement is only *normally* contained in concrete and I did consider that during the exam. However, if the answer by Delta patents is correct, this question is asking candidates to disregard not only common general knowledge, but also textbook and dictionary definitions of a well-known term (see, e.g. https://www.britannica.com/technology/concrete-building-material; https://dictionary.cambridge.org/de/worterbuch/englisch/concrete; https://en.wikipedia.org/wiki/Concrete; https://www.dictionary.com/browse/concrete etc...). I understand that one should disregard special technical knowledge of the field (Rule 22 IPREE) and I did so with regard to the term UHMWPE (I am a chemist) but blatantly disregarding the meaning of words seems absurd to me...
ReplyDeleteImagine if it also turns out that D1 does not disclose a building because a room does not imply a building as some comments on the previous post suggested... 🫡
Delete@Joahim: Yes, I even considered that too (it could be in a cave or whatever...) but that is honestly ridiculous. If Delta patents apply this same standard as for D3 though the claim would really have to be novel over D1 too.
DeleteI also think this is debatable at least
DeleteI understood, that the skilled person reading D3 would interprete concrete as conventional (*normal*) cement-based concrete. In technical practice and according to the description, there is no introduction of real doubt, it merely reflects that exotic variants exist. But if D3 does not contain a hint that a non-cement binder is used, the skilled person would interpret “concrete} as conventional cement-based concrete. Therefore, my opinion is: The presence of cement is still directly and unambiguously derivable from D3.
DeleteI really hope the question regarding the novelty over D3 gets cancelled, especially for the reason of the dependency of the subsequent question. Apparently its half/half whether or not "normally" without an alternative is an implicit disclosure. Especially since the german version did not translate this exactly (which would be normalerweise and not in der Regel).
DeleteAgree, I’ve considered the German version as well. And the subsequent questions Q4/Q12 just seem to not make sense if in Q3 the claim is novel over D3
DeleteI answered as in the post. However, what you're saying makes sense and now I think that your answer was correct - compare to pre-examination 2023: water-based solvent = water. So I think it will be similar this year: normally cement = cement.
DeleteYup, all the candidates who sat the exam in my firm in Germany interpreted D3 as disclosing concrete implicitly comprising cement.
Delete"In der Regel" is arguably stronger than "normally," so you might see this skewing more so for answers coming from the DACH region, and "généralement" is probably closer to "typically" on translation, but linguistic differences notwithstanding; if concrete "normally" contains cement, and there is nothing to the contrary in D3 suggesting it's an exception to this "normal" rule, then I see no reason to overinterpret it into an edge case that is — as shown in the links cited above by Markus — at best a historical anomaly and at worst completely unphysical.
Bodhidharma - to be blunt - what all candidates thought and answered does not matter. All candidates who sat the exam in your firm could all be wrong.
Deletehttps://www.epo.org/en/legal/case-law/2025/clr_i_c_4_3.html
However, an alleged disclosure can only be considered "implicit" if it is immediately apparent to the skilled person that nothing other than the alleged implicit feature forms part of the subject-matter disclosed (T 95/97, T 51/10).
Implicit disclosure means disclosure which any person skilled in the art would objectively consider as necessarily implied in the explicit content (T 2522/10 of 16 April 2015). T 1523/07 was cited in T 1085/13 (novelty of higher degree of purity).
In T 583/01 the board, following T 270/97, stated that novelty was a question of inevitability and not a question of probability (see also T 1170/19).
Normally strongly implies that there are other alternatives - namely "non-normal" alternatives. Therefore it is apparent to the skilled person that something else could be disclosed.
Moreover, "normally" appears to be a matter of probability.
Therefore what you're saying could not be considered novelty of highest degree.
At the previous answer: It should be pointed out that case law is not part of paper F.
DeleteGuidelines: when considering novelty, it is not correct to interpret the teaching of a document as embracing well-known equivalents which are not disclosed in the documents; this is a matter of obviousness.
Delete"Normally" cement would be embracing well-known equivalents.
Guidelines: directly and unambiguously derivable from that document.
DeleteWhich part of "normally cement" would "cement" be directly and unambiguously derivable from?
That’s not true, It is not an equivalent. It is a species (cement-based concrete) within a broader genus (concrete).
DeleteThe reason cement is treated as implicitly disclosed is not because equivalence — it is contextual interpretation from the skilled person’s perspective in view of the description, stating what is normally understood and the missing disclosure in D3 , that something else is used than the normal conventional cement-based concrete.
I understand your point and from the CL, this matter would be rather clear; however, in the absence of any alternative embodiment in the disclosure of the application, I consider the matter at least open to debate within the setting of the EQE and especially within a "foundation" paper. It should be kept in mind that this exam is intended for a first-year student, and that the gap in expected knowledge and analytical depth compared with Paper F 2025 is substantial. As others have written, there was also a discrepancy between the languages.
DeleteMoreover, from an examination-design perspective, some of the subsequent questions would be largely redundant if the independent claim were already novel. This question structure strongly suggested that the feature in question was/is intended to be regarded as implicitly disclosed. Otherwise, Paper F 2026 is simply a failure in design, since almost 20 % of the points hinge on this matter.
Overall, the Examination Committee should reflect on whether this question is genuinely comparable in difficulty to a task such as arranging the steps of the problem–solution approach in the correct order (Paper F 2025). It plainly is not. I would even argue that the clarity of the whole application was more ambiguous than in most pre-EQE exams.
A question to the exam organizer - how do I erase knowledge from my brain about how to interpret guidelines to exclude any case law knowledge?
DeleteAt the end of the day - our discussions will not change the examiner's report. Or?
I interpreted that "normally" cement meant that when the word concrete is used this would be understood by the skilled person as mineral aggregate + cement. Isn't the test what the skilled person would directly and unambiguously derive? I thought the definition in the application was meant to explain how the skilled person would interpret concrete. Why would the skilled person speculate about rare alternatives that are not technically realistic when he reads concrete in D3 when they are not suggested in D3? In my opinion, since D3 does only mention concrete and does not redefine it, D3 discloses mineral aggregate + concrete.
DeleteI believe the guidelines G-VI-5 are relevant here: " Alternatively, it may be implicit in the sense that, in carrying out the teaching of the prior-art document, the skilled person would inevitably arrive at a result falling within the terms of the claim".
DeleteWhen the skilled person makes concrete, they inevitably use cement as it is "normally" used, and therefore the results would fall within the terms of the claim.
But let's see what the Examiners conclude. It's unfortunate that this issue impacts multiple questions.
@Anonymous: I think it is also worth noting that you are relying on the definition provided in the application as filed (which is of course understandable in the context of the exam but I am bringing it up since you are citing case law). There is no indication in D3 that would give the term "concrete" any different meaning. There are several decisions in which the boards of appeal have stated that terms used in patent documents should be given their normal meaning in the relevant art, unless the description (of that patent document) gives them a special meaning (see e.g. T 1321/04, T 25/15, T 1844/15, T 2030/20) (and sometimes not even then, G1/24 was unfortunately quite ambiguous in that regard).
DeleteSince there is no different meaning provided in D3, why should we assume a different meaning than the one a skilled person would definitely attribute to it (see my first comment). I am also quite certain you would have no chance to get a patent in reality if you tried to claim "mineral aggregate + cement" and the prior art said "concrete".
As someone else pointed out though, this case law discussion is irrelevant anyway :) It just goes to show that the exam was certainly too ambiguously drafted for a simple true or false question directed at first year candidates.
I agree with Bodhidharma and A.K. I could agree if the application claimed another binder than cement. In this case I would also say it's novel over D3. But just breaking down the "normal" composition into it's single ingredients should create novelty? This seems counterintuitive for me, but of course this is not a reason to argue with...
DeleteNyske: Could you please comment on this tread? Especially with regards to the guidelines. https://www.epo.org/en/legal/guidelines-epc/2025/g_vi_5.html
DeleteSince the application actually states that "normally" or "in der regel" cement is used in concrete. D3 does only mention concrete? So a skilled person carrying out D3 would inevitably arrive at a result falling within the terms of the claim (i.e. concrete containing cement)?
I don't see how this could not be implicit. Otherwise it seems very risky to use the guidelines in paper F.
"In the case of a prior-art document, the lack of novelty may be apparent from what is explicitly stated in the document itself. Alternatively, it may be implicit in the sense that, in carrying out the teaching of the prior-art document, the skilled person would inevitably arrive at a result falling within the terms of the claim. An objection of lack of novelty of this kind is raised by the examiner only where there can be no reasonable doubt as to the practical effect of the prior teaching (for a second non-medical use, however, see G‑VI, 6)."
Everybody argues about whether the term "concrete" in D3 implicitly disclose cement or not. What if we look at this the other way around. The amended claim 2 includes "the matrix comprises a mineral aggregate and cement". I would argue, that this is concrete per definition. The definition is given in the description: ". It [concrete] is a composite material comprising a mineral aggregate, such as gravel or sand, and a binder, which is
Deletenormally cement." So mineral aggregate + cement = concrete. Therefore this cannot be new over D3.
I think we would need a mineral aggregate + cement that is not concrete to be new. I don't find this in the description, as they clearly write only about concrete. What are your thoughts?
I agree with you Helge!
DeleteFiled claims:
1. A construction element for a building, the construction element comprising:
a reinforcement structure comprising fibres, and
a matrix, wherein
the reinforcement structure is embedded in the matrix.
2. The construction element according to claim 1, wherein
the matrix comprises a mineral aggregate and cement, and wherein
the reinforcement structure is a textile structure comprising the fibres
I had the same reasoning Helge
DeleteHi all, there are a few things that are relevant here that should not be mixed up (no pun intended).
DeleteFirst there is the question what D3 discloses. D3 says "concrete". What is concrete? The description tells us that concrete is an aggregate + a binder. So, D3 discloses an aggregate + a binder.
Then look at claim 2. When doing an analysis for novelty, always start from the claim, not from the prior art! The features of the claim are your "checklist". The claim says aggregate + cement.
What do we know about cement? Well the description tells us that cement is an example of a binder, and one that is commonly used.
Is "commonly used" enough to say that the cement is disclosed in D3? No, because the disclosure of an prior art document is the combination of the explicit disclosure and the implicit disclosure. Guidelines G-VI, 5 say: "In the case of a prior-art document, the lack of novelty may be apparent from what is explicitly stated in the document itself. Alternatively, it may be implicit in the sense that, in carrying out the teaching of the prior-art document, the skilled person would inevitably arrive at a result falling within the terms of the claim."
That normally cement is used does not rule out that there are other options for the binder that can be used as alternatives for the cement. So, the cement is not implicitly disclosed.
Then what is the situation? D3: discloses cement (= aggregate + binder), without specifying a specific kind of binder. Claim 2 does specify the binder. So Claim 2 is a species while D3 discloses the genus. So, claim 2 is novel.
At least, that's what I think.... I think my reasoning is sound but I cannot guarantee that the Exam Committe agrees with me...
Nyske, with all respect, I think you reasoning is sound. But what about the second part of the guideline on implicit disclosure that you cited?
DeleteA skilled person carrying out the invention in D3 would inevitably arrive at a result falling within the terms of claim 2 (i.e. use concrete as a binder since this is normally done according to common general knowledge), or do I misunderstand something?
"In the case of a prior-art document, the lack of novelty may be apparent from what is explicitly stated in the document itself. Alternatively, it may be implicit in the sense that, in carrying out the teaching of the prior-art document, the skilled person would inevitably arrive at a result falling within the terms of the claim. An objection of lack of novelty of this kind is raised by the examiner only where there can be no reasonable doubt as to the practical effect of the prior teaching (for a second non-medical use, however, see G‑VI, 6)."
@Nyske: Thank you for your input. I personally disagree that "normally" equates to just "commonly used", especially in light of common general knowledge and well-known definitions of the term concrete. In this case it is the default value in the absence of any recited alternatives or evidence to the contrary.
DeleteAs a follow-up question: Would you then also say that an amendment of "mineral aggregate + cement" to "concrete" would violate Article 123(2) EPC (or vice versa)?
Dear Nyske, thanks for your insights—
DeleteI think this line of reasoning is clear and on the job one would always attack the disclosure of D3 in such a manner if brought up by the Examiner (just as any Examiner would cite concrete to read onto the "aggregate + cement" mixture of the claim, despite any bizarre "local" dictionary created in the description for terms that have been around for hundreds of years...)
Hopefully — given also the amount of comments here on this issue — such an approach is considered too strict for Paper F.
Moreover, I think if you are willing to have this strict interpretation in the "Concrete Affair," you must also be consistent and have a strict interpretation in the "Building–Room Affair." I personally don't have this opinion, but in the strictest reading, a building is – plain and simple – not disclosed in D1. It suffices to imagine any viable alternative, which many people have already provided in this post, e.g., a concrete room on a cruise ship (however dumb that sounds) or a film set where the visible room is a half-constructed structure sitting outside on a grass patio and not inside a building.
So, for consistency, I would expect that the cement and the building are either BOTH implied or BOTH "photographically" not directly and unambiguously present in the cited prior art.
Fairest solution would probably be to neutralise the D3 question and award partial marks for the rest of the question (and the cascading questions), given how many marks may be lost otherwise. I, for one, am already in a situation where I have answered 85 % of the individual sub-questions correctly according to your scheme, and am looking at a 60 % total score if there are no partial marks given.
to sum up how paper F 2026 went: "Concrete Affair" and "Building–Room Affair" :D
DeleteWhat worries me is that if they don't do partial marking, and you put D3 as novelty destroying for Q3, 4 and 12, you essentially lose 10 marks for one mistake. Do we think the mark scheme will be adjusted for this?
DeleteI don't really understand the discussion here. The description clearly stated: concrete normally comprises cement. As we have to rely ONLY on the knowledge provided by the descpription, we have to assume that all concrete comprises cement, as there are NO alternatives provided. Assuming there are alternatives would be expert knowledge, which goes beyond the knowledge provided. Therefore, I don't get why it is assumed "normally" implies that there alternatives.
DeleteYes, I agree. It would be really interesting to see Nyske commenting on this.
DeleteI think it is unfair to make everyone making this logic assumption to doubt their results. Even if there could be a discussion to get the question neutralised...
Dear Nyske Blokhuis,
DeleteI think you made a mistake that excluded "cement" in relation to the meaning of "concrete". Referring to description, the cement is included in the general meaning of concrete. Any other kinds of component can be interpreted as novel because it is not included as an example of a binder. Why did you restrict the meaning of "concrete" only to "binder" even though "cement" is suggested as of the definintion of "concrete". Background part clearly suggested the definition of "concrete" and we must rely totally on that. To make "cement" novel over D3, "cement" should have written in the embodiment section not in the definition or background section because the background section is the only part that we can know what "concrete" is.
Since "normally" does not mean "always", it's not limiting. It's broad and does imply alternatives. A binder is definitive, cement is not definitive
DeleteDescription: Concrete = A + B, A comprises a1, B comprises b1
DeleteOur definition about concret = A + B, A comprises a1, B comprises b1 (new setting in the exam environment)
claim 2: A+b1, D3: concrete
novel? no way
"normally" is included in the meaning and definition of the concrete, which means the concrete normally including cement is a definition. Do not be confused with the context. If the cement was explained in the embodiment part, and only binder in the background part, we can think that the concrete not always include the cement. However, the point is, they suggested "cement" in the definition of the "concrete". This part has nothing to do with the word "always" or "normally". We need to use the meaning of the concrete only referring to the background part. If the background part gives you that concrete is slimy, it is slimy. If the definition of the concrete is A+B, A can be a, B can be b, the whole information itself has to be a new set definition about the concrete. We have no freedom to exclude other parts, and only think A+B is a definition about concrete. We have to just admit the information as a whole. Assume that the concrete is defined by "AAAA". we need to just embrace the definition by "AAAA" not by "AAAA-1". We you do not agree, please explain us why you excluded "cement" from the meaning or definition of "concrete".
DeleteFollowing up on my initial comment, the EPO's case law book contains the following section:
DeleteIn T 233/90 the board took the view that in a case where a document comprised in the state of the art under Art. 54(3) EPC 1973 referred to "a usual manner" of preparing a product, it was permissible to use documents of reference such as handbooks, encyclopaedias or dictionaries in order to determine what the skilled person would have understood by such a reference on the effective date of the prior document. (see https://www.epo.org/en/legal/case-law/2025/clr_i_c_4_1.html)
Why would this principle not apply here? In this case, just like in the F paper there was a normal (or usual) option that was then interpreted in view of dictionaries, encyclopedias etc. In this Board of Appeal decision the disclosure was considered to be implicit ("in the absence of instructions [to the contrary]").
I would appreciate any insights :)
@A.K. Yes, I completely agree.
ReplyDeleteDoes anyone know when the results will be released? April like last year?
ReplyDeleteI interpreted Q7.3 differently. I understood it to be asking whether this particular instance of a product by process claim was unallowable, not whether product by process claims in general are always unallowable/unclear.
ReplyDeleteHere, the claimed "woven fabric" feature did not give the claim novelty, and the description included a reasonable alternative claim-language-like way to define the feature. I took those to be pretty clear pointers to the Guidelines examples of when a product by process claim is unallowable.
I'm a native English speaker, so it would be interesting to see if the French and German versions have the same ambiguity in interpretation.
More generally, while I'm sure they work hard to test these questions in advance, it's still very disappointing to end up with an exam so ambiguous and arguable getting through "quality control". Auto-marked true/false statements with no opportunity for clarification or explanation are simply not fit for purpose.
I'm not a native speaker so asking this question to understand better. Wouldn't the question rather be formulated as "An amended set" in that case?
DeleteIf the question was intended to be interpreted as Delta have interpreted it above, I would have expected the question to use *are* unallowable instead of *is* unallowable.
DeleteI would also have expected the examiners to include "always" or another pointer to suggest that we are considering PbP claims as a general class rather than this specific example claim. Otherwise, it's weird to explicitly refer to the claim language in the question of those words are irrelevant to the answer.
Among some other things, I disagree with the answer to Q15. The amended claim 5 defines the alkali-resistant glass as a regular limiting feature, whereas the original claim 3 defines the alkali-resistant glass as an optional (non-limiting) feature. According to my understanding, the EPO would not perform a search for the optional feature of "alkali-resistant glass" in the original claim 3, since they just need to find prior art that discloses glass fibres to destroy the novelty of the additional features of the original claim 3. Therefore, I answered that the statement of Q15 is false. However, I personally never use such optional features in claims and thus have no first-hand experience, so I might be wrong.
ReplyDeleteCorrect me if I'm wrong but somewhere in the guidelines part B, I think (anyway, the search part), it says that the examiners are supposed to anticipate fallback positions - preferably would be one.
DeleteAre you referring to this?:
Deletehttps://www.epo.org/en/legal/guidelines-epc/2025/b_iii_3_2_5.html
Or I guess that you meant this:
Deletehttps://www.epo.org/en/legal/guidelines-epc/2025/b_iii_3_5.html
Anticipated fallback positions are indeed in the guidelines. I wasn't sure but looked it up during the exam, so the answer was clear
DeleteEven after the exam, so much disagreement between candidates and professionals. No clear answer.
ReplyDeleteTruly fits a first-year foundation paper.
Never change, EQE, never change
The definition of concrete given in the description is also contradictory to the normal dictionary definition due to the use of "or".
ReplyDeleteConcrete requires cement, gravel AND sand.
Cement and sand alone make mortar, not concrete.
Was it really the examiners' intention to test how much influence the description should have on interpreting the claim when the description gives a term a definition contradictory to its everyday non-technical dictionary definition? Seems far beyond an exam intended to test declaratory legal knowledge after 1 year of experience.
Still, could have been worse - at least the fabric wasn't "gathered" ...
Should’ve been lucky enough to be born a year earlier. Paper F 2025 was a cakewalk compared to this.
ReplyDeleteFrom the tutors meeting in October 2025: Case law (e.g. G decisions) that is mentioned in the GL can be tested of Paper F (Even though G decisions are generally not part of the syllabus). Claim analysis was honestly a mess, the grading and marking will turn into a lottery
ReplyDeleteI find it a bit amusing to provide a lengthy and hand-wavy argumentation why amended claim 7 should be allowable when according to the gold standard, it should be directly and unambiguously derivable from the application.
ReplyDeleteHaha, agreed. The argumentation to come to this answer feels rather complex instead of directly derivable
DeleteI agree here. I believe one can also argue that what is combined here is one specific embodiment out of a list of possible embodiments together with one specific type of fibre out of a possible list of fibres. This is the combination of two lists, and a single combination out of all possible combinations is in general considered not to be disclosed.
DeleteAnd if carbon fibres are ok, then a textile of straw fibres should also be allowable. Which is certainly not.
DeleteDear Nyske and DP team,
ReplyDeletethanks for your quick comment on the questions. I appreciate that a lot.
I have a few remarks, which I try to elaborate.
Regarding question 3 and novelty of claim 2 in view of D3:
I also follow the comments of some fellows addressing the interpretation of "normally" as an implicit feature and therefore my answer to this question was that claim 2 is not novel in view of D3. Dependent on that, I also answered (in the next Question 4) that claim 3 is also not novel.
However, I could also follow that the skilled person may not inevitably arrive at a result. I have to say, I find this question unfair, especially for an F paper candidate. In Addition, question 4 part 1 asking about novelty of claim 4 builds up on the answer to this Question. If they grade both questions in a way that you get full points only if you answered everything right, then that would have been already 7 points!
Regarding Question 8:
In my understanding, the claim is independent. Taking the example of last year, even that one was not clearly a dependent claim for me. To be honest, I just answered this question with "NO" to be consistent to the answer of the examiner's report of last year, although it is Independent in my opinion. In addition to that, the use of "instead of" makes the claim unclear for me. The term "glass fibres" is used twice in claim 4. In its first use is a general term and in the second use they refer to "the glass fibres". Considering the unclarity of claim 7 and also that claim 7 does not use "the" for the glass fibres, one could also argue that it is not clear if the carbon fibres shall replace the glass fibres of the first term in claim 4 or the second term (maybe this is a bit overthinking, but just wanted to point out the ambiguity). Overall, I found this question ambiguous and unfair.
Regarding Question 10:
Amended claim 6 --> In my opinion, this is not allowable because the part "to improve…" was not disclosed and is an added subject-matter. It would be nice to hear from you about this.
Amended claim 7 --> Claim 1 as originally filed is "A construction element for a building, the construction element comprising: a reinforcement structure comprising fibres, and a matrix, wherein the reinforcement structure is embedded in the matrix." and the aspect with the matrix comprising a mineral aggregate and cement is subject-matter of claim 2, which is a dependent claim. The fibers as glass fibers is a feature of claim 3 which is a dependent claim on claim 2. So far, one could Combine Claims 1+2+3 to arrive at the subject-matter of amended claim 4. So, amended claim 4 is allowable.
However, in the original alaim set as filed, there is no dependent claim addressing the feature "Carbon fibers". So, I looked at the description, and see that the description says "The present invention addresses this problem … as defined by claim 1." and it says that the preferred aspects of the invention are defined by the dependent claims. A fiber being either carbon fiber or glass fiber is also mentioned as a preferred embodiment. So, until now subject-matter of claim 1 + carbon fibers is directly derivable in my understanding. However, the combination of the subject-matter of claim 1 + carbon fibers + the matrix comprising a mineral aggregate and cement is not disclosed. In the beginning of the description, it is said that concrete is a composite material comprising mineral aggregate and a binder; but there is in my opinion no basis for combining a matrix comprising mineral aggregate and cement with carbon fibres and features of claim 1. So, I argue that this combination is an intermediate generalisation, and therefore not allowable under Art. 123(2). I would appreciate if you could comment on this.
Thank you and I am excited for your provisional answers to the L part.
I post another point that just came across my mind.
DeleteRegarding question 12 (novelty of am claim 6 in view of D3) in the light of your answer to question 3 (orig. claim 2 in view of D3):
am claim 6, as it is dependent on am claim 4, has also the feature "a mineral aggregate and cement". If the am claim 6 is not novel in view of D3, then orig. claim 2 should also not be novel in view of D3 considering the argument with regard to the feature "a mineral agg...".
Aren't the answers contradicting? Or am I missing a point here?
P.S. Until now, I see questions 3, 4 and 12 dependent on whether one sees the subject-matter of orig. claim 2 as novel or not novel in view of D3. Imagine a candidate would have answered the questions not conform to the required answer, the candidate would have lost 4+3+3=10 points, under the assumption that no partial points would be given to any of the mentioned questions.
Hi Soroor, I'm curious to see what DP team will reply to your post. I agree with all your points, and I have some thoughts on the issue of novelty of "cement" over D3 (Q3, Q4, and Q10). I also answered that the claim was not novel over D3.
DeleteI've been thinking a lot about it and realised that only part of my big confusion during the exam was related to the question of inevitability of "cement" in concrete. The wording (in my opinion in all three languages) sort of indicates that "cement" is not inevitable and therefore not implicit. BUT two options are given for "mineral aggregate" ("gravel or sand"), while for "binder" we are given "normally cement". Anybody who has heard of cognitive bias will understand its inevitable that the brain will see these as two completely different cases - kudos to the examination committee for creating this elegant trap for one-year candidates who are already likely nervous and under time pressure ;)
The other part of my confusion was that "concrete" is not a genus to "cement". If I want to think of "cement" as a species, according to the definition given in the description, the corresponding genus would be "binder". But D3 does not disclose "binder", it discloses "concrete". So when I looked at G-VI, 4 during the exam, the simple examples of "copper" to "metal" and "rivet" to "fastening means" didn't help me further. In fact I could find nothing in my learning materials or in the Guidelines that would shed any light into this issue.
On top of that I got distracted because some of the prior art say "conventional concrete" so I caught myself wondering whether "conventional concrete" is the same as "concrete made with cement" even though that was irrelevant to the matter at hand - only after losing some time pondering over this useless question I realised that D3 doesn't even state "conventional", it just says "concrete".
I'm asking myself now whether arriving at the conclusion that the claim is indeed novel over D3 would depend on considering "binder" to be a feature that is implicitly disclosed in D3. If that is the case, and "binder" could be seen as the genus to "cement", we can apply the genus-species logic and conclude that the claim is indeed novel oder D3.
I don't recall seeing this kind of convoluted situation (implicit disclosure and genus-species like a russian doll) before - not in any pre-exams, last year's paper F, mocks available at EPO e-learning and epi learning platforms, or any of the cases I've seen at the office in my trainee so far. I would love to hear whether tutors and experienced colleagues would consider this a suitable question to test novelty knowledge of candidates with 1 year of experience...
Hi Soroor, please see the updated answers to Q4 and Q12. We discussed Q3 among the tutors but I overlooked that it had consquences for Q4 and Q12 as well. Fixed now!
DeleteWith respect to Q8, the simple check is whether a claim contains all features of another claim or not. If all features of claim X are present in claim Y, then claim Y is a dependent claim. See R. 43(4) EPC and GL F-IV, 3.4 and 3.8. An independent claim contains only the essential features of the invention and dependent claims relate to further mebodiment that have additional features. Don't make it any more complicated than that ;-)
DeleteThe "instead of" means that 7 does not have all features of claim 4, so claim 7 is independent.
With respct to Q10 - claim 7, note that the decription is part of the disclosure so you can rely on that for amending the claims as well. And it is a tricky one, I'm curious to see what the official answer to this one will be.
Delete@ Julia: I interpreted that is said in the description about concrete as a definition, so that concrete always has a mineral aggregate and a binder. The mineral aggregate can be various things, for example sand, gravel or something else. And the binder can be cement or something else. Cement is obvious to use but not the only possibility. So it's not thate cement is a species of the genus concrete, but cement is one of the possible components of concrete. Then the question boils down to whether the disclosure of D3 includes also features that are obvious or only features that are explicitly or implicitly disclosed.
DeleteTo be honest, I would not be surprised if the drafters of the paper intended for D3 to disclose the features of claim 2 as filed, because then Q4 and Q12 make more sense. But as the paper is written we are of the opinion that cement is not an implicit feature so not disclosed in D3.
It is correct that the binder can be something else in principal, but I guess the pointer here is „normally“ or „In der Regel“ in German (which is a bit stronger in my opinion). So a person skilled in the art would expect that cement is disclosed in D3 unless specified to the contrary, because it is so rare.
DeleteThanks, Nyske, I appreciate you taking the time to explain. Well let's see what the examiners' report will say about it, and whether they will award partial marks for those questions. I sure hope they will announce the official results soon - seeing how Q3, Q4 and Q14 might actually be the single factor determining whether I (and probably a whole bunch of other candidates, if the blog comments are any indication) should start preparing for M1/M2 or need to go for F again next year.
DeleteDear Nyske, thanks for the update and your thorough explanation.
DeleteAlso curious to see the answer of the examiner's report.
Can someone (Delta Patents?) please upload the paper itself with the documents? For someone who did not sit the paper to follow the discussion, thanks a lot!
ReplyDeleteSorry, we don't have a clean version of the paper yet, only screen shots of candidates answers. As you will understand, we will not publish those (not even anonymously). I can see if I can put the text of the document in a separate blog post, as if I remember correctly I cannot embed pdf's in a blogpost here.
DeleteSorry for asking a question which was maybe asked before. How was the marking last year? If you had e.g., in Q3 said that it's not novel over D3 (the cement "affair") so one wrong but the other three answers right how many points were given last year?
ReplyDelete0. No partial points or "subsequent mistakes".
DeleteHowever, 2025 was much easier and less ambiguous, so there is hope!
The marking is decided upon only after the paper is done, and depends on various thing.s So we cannot say at this moment whether there will be partial scoring or not. Last year there was partial scoring only for questions that had more than 3 sub-questions, and then only if you had just one subquestion wrong. But that fitted with how the paper was answered. For this year we'll have to wait and see.
DeleteThank you for providing these answers. What treshold would you consider fair this year, especially compared to 2025?
Delete@P That's hard to say as there are a few questions of which I'm not sure whether our answers line up with the solution that the exam committee had in mind. So I'm really curious to see what the modle solution is and what the reasoning behind those answers will be. But I would certainly expect the threshold to be lower than last year.
DeleteThank you for your answer. It appears that I must rely on cement being novelty-destroying and on a threshold of approximately 60%. It sucks that this single answer has such a significant impact on the remainder of the exam.
DeleteI also hope that Q8 gets cancelled, given that it also got cancelled in 2025.
As professionals, what is your opinion regarding 2025 compared with 2026? Was it significantly more difficult? Would you consider both parts to be fair/adequate for a first year?
@P just comparing the the tone of the answers the professionals gave in 2025 when providing their answers and now 2026, there is no way that the 2026 one was not significantly more difficult than the 2025 one. For 2025, not one question was answered with "a bit confusing", "this was quite puzzling", "after internal discussions", ... If professionals are having lively discussions about one or more questions and even change answers to questions, as seen for the "concrete-affair" (in the first set of answers uploaded, D3 was considered anticipating novelty), then it is rather obvious that candidates with 1YOE are struggling with this question especially under time pressure, as the candidates had only 2 hours to answer all questions of this part.
DeleteSo I would be very surprised if the feedback is: yes same difficulty as the one in 2025
Okay. Thanks!
ReplyDeleteWhy is it a given that Claim 1 is novel over D3. From what I could see in the English version, D3 does not disclose that the reinforcement structure is embedded in the matrix, only that it is bonded to it?
ReplyDeleteApologies, given that it is not novel.
DeleteHey Binsfinder, I also had the same doubt about Q2. I answered that claim 1 is not novel over D3 because the disclosure of the reinforcement structure being embedded in the matrix is implicit in D3. The 3rd paragraph of the description states "The material into which the reinforcement structure is embedded is called 'matrix' ". Because of this sentence I assumed that if D3 says "matrix", then "embedded" is implicit. Not sure my reasoning is correct, though.
DeleteFinally, I found the comment which contains the same confusion as me! I really thought the problem is about whether D3's 'matrix' implies that the reinforcement structure is embedded in the concrete. To be honest, I assumed D3 does only because I saw Q4, and thought it would be unfair to have that many marks relied upon 1 answer...But anyways, in the end I followed Julia's rationale to assume 'matrix' implies it is a material that the reinforcement structure is embedded in...
DeleteUnsure if anyone else also had the same thought, but I was chatting with a trainee colleague of mine and they said that depending how you interpret the terms in original Claim 1, D1 could also potentially be novelty-destroying, i.e. if you consider the cement wall structural body (i.e. four implicitly interconnected walls) to be the “construction element” itself, the “reinforcement structure” to be the carpet, and the carpet to be “embedded” because it is at least partially surrounded by the matrix since the outer sections would be in contact with the four surrounding cement walls. Would this constitute a “broadest reasonable interpretation” of the claim? It seems quite strange to interpret the terms in this way, but it did make me a bit worried!
ReplyDeleteIt’s the EQE after all, so who knows. It’s only a first-year foundation paper, so let’s make it as hard and ambiguous as possible.
DeleteEven if we agree, that the interconnected walls are a matrix, carpet can’t be interpreted as a “reinforcement structure” which is embedded in the matrix. I can agree that the “textile” or “fabric” can be embedded In a matrix in D1, according to your interpretation, but not the reinforcement structure, and this feature is explicitly stated in claim 1.
DeleteI agree with Paulina, but then Claim 1 does not specify that the reinforcement structure specifically reinforces the matrix at all, simply that there is a reinforcement structure embedded… Similar to the above comments, I feel that this amount of discourse over prior art documents which should be very easily interpreted by those with one year experience is ridiculous. Part 2 in my view was harder than almost any of the pre-EQE papers from years past!
DeleteI think we should all get some fresh air.
DeleteOne cannot sinmply throw all logic out of the room. Interpreting a carpet as a reinforcement structure ought to be a crime. D1 states that the "floor of the room is covered with a woven textile carpet", not that the floor is reinforced with the said carpet. If the latter had been the wording in prior art, your argument would merit discussion. Also, how is the carpet embedded in the concrete for reinforcement (since that is the technical feature of the reinforcement structure?). Covering the wall, presumably on the outside (owing to its visibility in the video), with a carpet is altogether different than the carpet being embedded in the wall and reinforcing the concrete. Stercus tauri!
DeleteI agree with CarpetLover. It's the same as saying that if the influencer was wearing a woven textile jumper, that this jumper would then be the same feature as reinforcement structure. They are two entirely distinct features, serving different purposes. Carpet/jumper serves a different function than the textile used in the reinforcement structure. It would almost be impossible to get a patent granted using this logic. D1 does not teach any combination of the carpet with a reinforcement structure so there is therefore no relationship between them. Note that we don't know if there are four walls in D1 either. D1 says "a wall". This could be one wall made of conventional concrete blocks, and another opposing wall made of steel or stone.
Deleten R21 IPREE: General instructions for answering the papers (...) (3) Candidates must accept the facts given in the examination paper and limit themselves to those facts. Candidates must not use any special knowledge they may have of the technical field of the invention.
ReplyDeleteIn the description of the present invention, it is written in the background part that "concrete is a well-known construction material ~~. It is a composite material comprising a mineral aggregate, such as ~~, and a binder, which is normally cement".
Therefore, in this examination world, the concrete is a well-known construction material comprising a binder, which is normally cement. Therefore, even though the prior art merely recites "concrete", that concrete can be normally interpreted a concrete comprising cement. It is important that "normally" and "always" is different in view of novelty analysis, but, in the examination world, we anyway must rely 100% on the background information wriiten in the description to embrace the meaning of "concrete" or other components.
I think if claim 2 has to be novel over D3, there must be no mention about "cement" as an example of the binder. If it was just written as binder, the "concrete" is a material including binder. if claim 2 claims cement, now it is novel.
In short, if the background states that A normally comprises a', A comprising a' becomes a common knowledge in this examination world.
I totally agree with this reasoning. Interestingly, the EPO guidelines are pretty vague when it comes to implicit disclosure. Basically this is what you have to rely on:
Delete"A document takes away the novelty of any claimed subject-matter derivable directly and unambiguously from it, including any features a skilled person would consider implicit in what is expressly mentioned in it."
In this case I argue that the skilled person would read "concrete" in D3 and would think: "Ah concrete, this is a well known material I am familiar with. It contains a mineral aggregate and normally cement." And there you have the implicit disclosure of cement.
Therefore, if they intended to make claim 2 novel over D3, they should have spitted the explanation about the binder. For example, they should have written in the background just "a binder" and in one of the embodiment "a binder" is "a cement" or includes "a cement". Then, the general meaning of the "concrete" becomes that the concrete comprises a mineral aggregate and a binder. Now, the appicant claims "a cement" as an embodiment of the invention, it is novel. However, referring to description presented in the exam, it cannot be novel.
DeleteAgree 100%. I think the examiners intended us to understand what concrete is in its "conventional meaning"
DeleteDescription: Concrete = A + B, A comprises a1, B comprises b1
DeleteOur definition about concret = A + B, A comprises a1, B comprises b1 (new setting in the exam environment)
claim 2: A+b1, D3: concrete
novel? no way
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If a word concrete is disclosed in prior art,
Deletewe need to think concrete = "Concrete is a well-known construction material which is much appreciated for its durability. It is a composite material comprising a mineral aggregate, such as gravel or sand, and a binder, which is normally cement." as a definition or general meaning. There is no reason to exclude some of information written in the background part when interpreting the meaning of the concrete.
If there is written that "concrete comprises A, A is normally a1" in the background part as a definition of the concrete, are you going to exclude a1? I think that sentence as a whole should be used when prior art also use that term. Because the sentence as a whole is a new setted term used in the exam.
You nailed it. In the exam you basically have to perform a mental "copy paste" operation if a technical term that is defined in the exam material is mentioned in a prior art.
DeleteThank you delta for making this provisional answers.
ReplyDeleteDo you have any idea when you have your suggestion for part 1 ready?
This discussion is even more fun than sitting paper F
ReplyDeleteWhat worries me is that if they don't do partial marking, and you put D3 as novelty destroying for Q3, 4 and 12, you essentially lose 10 marks for one mistake. Do we think the mark scheme will be adjusted for this?
ReplyDeleteDon't worry about that. They will
DeleteIf they take the same approach as last year, they will tweak the marking scheme and pass threshold to allow a certain percentage of candidates to pass the paper (last year it was around 85%). That might mean partial marks for some questions or maybe neutralising questions. IMO the tweaking of the marking scheme heavily increases the weight of the "luck" component in passing the exam, proportionally decreasing the weight of the "preparation" component. I think its questionable whether this approach is fair toward the candidates who seriously prepared for the paper, but then, what's fair anyway? (shrug)
DeleteYes, just to remind everyone, in last years 'luck-based' marking scheme, you could have failed the exam with more questions correct than someone who had less overall right answers!
DeleteThanks a lot, Nyske Blokhuis, for your analysis and discussion. Now I am very curious to see, what the examination committee will do with all of this.
ReplyDeleteYes, thanks a lot Nyske Blokhuis for your efforts! I think all of us really appreciate it!
ReplyDeleteI'm super curious to see what will come out of this "concrete-gate affair"! :-D
The people need to have your opinion on paper F part 1!
ReplyDeleteMany thanks for publishing it for part 2
D3 explicitly discloses the combination of “mineral aggregate + cement.” It is not even a question of implicit disclosure!
ReplyDeleteOnce a specific example (cement) is mentioned in a document, it is "disclosed" for the purpose of novelty.
Claim 2 is not novel over D3.
Ignore my comment. I got confused.
Deleteregarding possible ways to mark each question: last year report indicates under some question the note "Partial points were awarded when only one of the answers was incorrect"; what measure have been taken for question without this note? partial points yes or not?
ReplyDeleteNo points at all.
ReplyDeleteQuick question to fellow candidates: how many of you concluded that D3 does not disclose the subject-matter of original claim 2 (i.e. that claim 2 is novel over D3)?
ReplyDeleteIn other words, how many of you arrived at what seems to be the correct answer?
I have the impression — though I may be mistaken — that at least half of us may have misjudged this question.
For context, here are the pre-examination pass rates in recent years:
2024: 87.8%
2023: 84%
2022: 96%
2021: 87%
2020: no exam (COVID)
2019: 88%
2018: 73%
2017: 76%
So even if question 3 didn’t go your way, that alone is unlikely to determine the overall outcome. Historically, the pass rate has remained high, and a drop below 50% would be unexpected.
It is not only question 3; it is the dependency of the other questions on the answer of question 3.
DeleteIn the pre-exams it was at least possible to compensate the second part with a good first part and partial marks were awarded for each question, even with two wrong out of four…
DeleteThey have a steadily decreasing number of candidates in recent years, while the number of applications per year continues to rise.
DeleteWith such simply unfair exams, either this reflects a willingness to let the profession gradually die, or it shows a blatant disregard for the situation of EPO examiners (their colleagues!!), who are left to deal with overburdened qualified attorneys handling an ever-growing volume of applications and increasingly submitting work of inferior quality that examiners must then correct or untangle.
The average examiner does not deal with tricky legal situations involving highly skilled attorneys, but rather with overworked attorneys who clearly do not even read their own (or their clients’) applications anymore when replying to Article 94(3) EPC communications or extended European search reports. Allowing more attorneys to enter the profession would lighten the workload for everyone, and actually increase the overall quality.
The EQE clearly does not test or train candidates for 95% of the day-to-day work.
This is an insane argument. Even though the test was hard and difficult, it is hard for all the candidates, which means at least fair. The level of threshold may be adjusted to a lower level if the exam was very hard. I can not understand the candidate's words about unfair or something. Have you guys ever searched other country's exam? Do not blame the system since the exam system is relatively good compared to other countries. You guys will be very surprised when you know how extremely tough and difficult other exams are. Be happy with the chance that you can work before passing the exam, that it is open book, that is internet-based, and that is not that difficult compared to other countries. Even module F 2026 is not that difficult compared to other country's exam.
DeleteBut is it truly fair in comparison with 2025?
DeleteAs the EPO repeatedly stresses, other jurisdictions are irrelevant.
If the EPO expects to be held in the highest regard, it must demonstrate its merit through consistent examination standards.
This is not about seeking leniency; it is about fairness across different years and maintaining rigorous quality control within the same year.
Regarding question 13: Are you sure that "The application as filed does not disclose the combination of glass + carbon, see the first paragraph of page 2 of the description: "are they carbon fibers or glass fibers"?
ReplyDelete"Either ... or" could be considered both "exclusive disjunction" and "inclusive disjunction" and therefore the combination of glass + carbon could be considered disclosed.
Delete"Either ~ or" can be only interpreted only one of them. No other interpretation can be made. "at least one of A and B", "A and/or B" may be yes. Do not distort grammers to your own taste.
In T 1409/16 the board considered that both "exclusive disjunctions" and "inclusive disjunctions" could be expressed by the "either [...] or" wording. The fact that another expression ("and/or") was used (in the sense of an inclusive "or") in another claim of the contested patent was not, as such, a compelling reason for concluding that the "either [...] or" wording used in the claim in question must have a different meaning, i.e. that it expressed an exclusive "or". There was no absolute obligation to use a fully coherent terminology for expressing given features if the latter could be expressed in different ways. The person skilled in the art reading the patent would certainly not conclude that the "either [...] or" wording of claim 1 expressed an exclusive "or", since this would mean that the exemplified (hence particularly preferred) embodiments would be excluded from the ambit of the claim. The board held that the "either [...] or" wording could only be considered as expressing an exclusive "or" in cases where the two situations referred to were, due to their very nature, mutually exclusive, i.e. incompatible with each other.
DeleteThat precedent is a legal principle that judges in light of the contents of the description of the invention when "either..or.." is used in the claim, not a legal principle that allows "and" when "either..or.." is used in the description of the invention itself.
DeleteDear Nyske and Delta-Patents, thanks a lot for posting your model answers. I compared mine with yours and it looks good. I wanted to ask if in your internal discussion/brainstorming the passage/feature 'and that the reinforcement structure be embedded in the matrix' was discussed. Initially I thought that D3 discloses all the features, but later the term 'embedded' made me think further (also in light of its explicit mention in D4) and I thought it may be arguable if the feature 'emdedded' is indeed implicit in D3 and clearly and unambiguously derivable from it. To learn more about arrangement of the fibers in a matrix I conductes prior art search and learnt that fibers (depending on their size) can be differently arranged/placed in the matrix and need not be embedded always. Thanks for your answer.
ReplyDeleteThis is freaking me out. Prepared months and months. Legal part with some tricky questions but fine. But the claim analysis is a nail-biter for me. I regarded the cement as disclosed, impacting 3 questions and with having two other questions wrong, I am likely to join the paper F ride for another round...
ReplyDeletewelcome to the club
DeleteStay calm. It seems likely that your solution is in line with the intended "correct" answer. And since the "correct" answer is so unclear, it will certainly be taken into account in the markings.
DeleteWe just have to wait in the unknown for a few weeks. You're not alone though
DeleteTo candidates only:
ReplyDeleteConcretely, did anyone actually find the correct answer regarding the novelty of claim 2 over D3?
Based on the comments only, it feels like about 95% of candidates got Q3/Q4/Q12 wrong, isn't it ? Curious to know how many of you did'nt fall into the trap.
I’ve got claim 2 NOT novel over D3
Delete"Concretely"? Pun intended? ;)
DeleteI am part of a German learning group of ~20 people and its quite divided. I would say its roughly 1/3 that it is NOT novel and 2/3 that it is.
Unfortunately, I belong to the people considering it to be disclosed.
If 2 out of 3 people found the correct answer, that’s quite discouraging. If the majority actually got it right, the threshold might end up being quite high.
Deleteand sure, the pun was intended ;)
I wouldn’t call it cemented as truth just yet. Since almost 20% of the points hinge on this very question, I could imagine that they either lower the threshold or pull some EQE BS as always (nice quality control!) to justify why both answers could be considered valid.
DeleteSince there doesn’t seem to be a concrete answer binding everyone to a definitive solution, they may show some leniency, especially compared with 2025 and given that it is still a foundation paper.
„Cemented“ as the truth ;)
DeleteWell, the paper is about cementing foundations after all. :-)
DeleteThe only thing one can do with this paper is laugh at its ridiculousness.
Let‘s just put it to rest… on a cementary.
DeleteThe arguments presented here in many posts that cement should be regarded as implicitly disclosed in D3 are actually pretty convincing. And the questions that are dependent on this assessment seem pretty useless if cement is already to be considered as a new feature.
ReplyDeleteAdditionally, it would be pretty ridiculous if the EPO wanted to teach us a lesson how to easily create novelty in our applications with this "concrete-method". Everything makes much more sense if EPO intended there to be an implicit disclosure.
From an exam design point of view, it makes a lot more sense that the cement is implicitly disclosed in D3.
DeleteThat’s why I chose that D3 discloses original claim 2.
The debate between people who chose this option and the others feels a lot like Kantian vs. utilitarian approaches to the EQE — some stick to a strict, formal view, while others, like me, take a more practical, outcome-oriented approach.
Let’s see where the EPO lands between these perspectives.
Exactly my thoughts as well. The exam structure strongly suggests that claim 2 is not novel over D3. First you are asked to analyze the novelty of claim 2 against all the prior art D1-D4. You find that D3 is the only novelty-destroying document, and then Q4 asks you to analyze the novelty of the subsequent claims against D3 (ignoring all the other prior art). You eventually find that claim 5 is novel over D3, and that is then the basis for formulating the objective technical problem, etc.
DeleteAlso, it would be quite absurd if you have a definition of conventional concrete in your description, and then you just copy this definition to your claim and argue that it has some novelty over the concrete mentioned in prior art (especially since the prior art does not suggest in any way that some special type of cement-free concrete is used). The person skilled in the art would not understand D3’s concrete to be anything other than conventional cement-based concrete.
DeleteI agree, the same reasoning crossed my mind during the exam. I looked for an indicator or hint that would exclude conventional cement, didn‘t find one an came to the conclusion it makes no sense to assume D3 does not contain cement.
DeleteIt also makes a lot of sense that the EPO wants to teach us reasoning in line with Tapios thoughts instead of the "cement is not inevitable"-approach. I can't believe they would appreciate to receive such arguments in office action replies.
DeleteEspecially since they named no alternatives or simply added a hint to D3 indicating they used some special binder. In a normal situation everyone would have consulted the specification to find out what kind of binder can be used in the general description or examples.
DeleteApplying EQE logic to real-life practice would make you a poor attorney, at least based on my experience.
DeleteSure, but might work well in EPO exams
DeletePiedro, the Swede living on Sint Maarten, who—while claiming the priority of a Liechtenstein first filing for a joint invention with the poodle, which is the legal successor of his deceased Spanish girlfriend—wishes to file a PCT application in Esperanto with the Dutch patent office: „No clue what you mean.“ ;-)
Deleteand it is actually sufficient to get a filing date if only their Argentinian friend and co-applicant Carlos signs the PCT application
DeleteWhat filing date is accorded when the poodle carries the application to the IB personally barking claims in a morse code, names and addresses of inventors can be identified because the poodle wears a corresponding necklace and D20 reveals shaved poodles are faster due to lower air resistance?
Delete🤣
DeleteThe more I think about this whole "Concrete Affair," the more I am convinced that the Delta solution is simply incorrect and the reasoning flawed.
DeleteI think Tapio really hits the nail on the head with their comment here: "Also, it would be quite absurd if you have a definition of conventional concrete in your description, and then you just copy this definition to your claim and argue that it has some novelty over the concrete mentioned in prior art."
This really has to be the crux of the matter. Does an applicant’s internal dictionary have the power to "create" novelty by subdividing the known world into nested definitions?
Let's say my description says: "A bicycle comprises a means of steering, e.g., a handlebar, and a means of propulsion, e.g., pedals".
I then have a claim to a bicycle that reads: "A bicycle comprising a means of steering and pedals."
Cited prior art D1 in the ESR discloses a bicycle with no further details.
And in my 94(3) response, I write: "Dear EPO Examiner—many thanks, however, "pedals" are not inevitable in D1, which you cited, because I have an intermediate genus definition for "pedals" in my description called "means of propulsion". So, "pedals," which I've already disclosed as being comprised within a conventional bicycle as a species of the "means of propulsion" genus, are in fact rendering my bike NOVEL over this generic bicycle of D1. Why, you ask? Well, the bike of D1 necessarily only comprises the "intermediate" layer I've defined — the genus called means of steering and the genus called means of propulsion. Therefore, my claim is novel over this genus by selecting "pedals" as a species." Reductio ad absurdum.
In the exam, we have provided a definition of a conventional term used in the prior art in the General Description section of our specification. Since the 'species' (cement) is a known and "normally" expected technical implementation of the 'genus' (concrete), how in the world could we ever claim it is novel over its highest-level category that specifically lists cement as an option for concrete – especially with no other alternatives listed?
If we follow the Delta logic to its extreme, novelty is no longer determined by what the prior art teaches, but by how many linguistic "layers" you decide to wrap around a standard feature.
Even in such a retconned set-up where the prior art is defined in our own description, the argument breaks down in this exam because "cement" is a single selection from a list of length 1 called "binder") and a single selection from a list cannot be novel.
ignore the last paragraph about a list of length 1 lol; it's late
Deleteno need to even mix selection inventions into this argument anyway; it's simply a 1-to-1 definition at that point that does not allow for this artificial novelty creation through layers of definitions in the description.
otherwise you could make a Russian doll of these definitions and use any "level" of the doll to create novelty over whatever level is found in the priort art
I agree in so far as the definition for cement is disclosed in the specification of the application and not disclosed in the prior article document. If D3 disclosed cement does not have to be the binder, the strict approach considering alternatives is justified, but since the application itself states normally the binder is cement, this changes the situation. To put it more drastically, then applicants would be given the possibility to redefine common knowledge as they please.
DeleteAssume I want to file an application for a mixed drink and in my own description I mention that the mixed drink contains A + B + mineral water. Mineral water usually contains chloride ions. In my claim 1 I write: mixed drink comprising A + B + mineral water with chloride ions. D1 discloses the drink with A + B + mineral water. Can I then argue that my claim including chloride ions is novel by relying on my own definition, which does not exclude that there could be mineral water without chloride ions?
DeleteI think Tapio hit it - or at least I got the same thoughts during the exam.
DeletePlus the reasoning is consistent with implicit disclosures of a building in D1 and the embedding in D3
ReplyDeleteThat is really a point which is kind of ignored in our discussion. I also see it that way. If you see mineral aggregate + cement not disclosed in D3, than a building is also not implicitly disclosed in D1. It only states that it is an inner part of a room with a floor. There is even no definition of a building in the information given so why should you interpreted it that way? For the same reason that Delta cited: common sense. But that leads to the point Tapio discussed above, where I consider what the exam is testing us on here. Should young lawyers really be “trained” from the outset to look for verbal gaps in the state of the art in order to create novelty on paper for inventions that are actually not new? Are these really the discussions that the examiners at the EPO want to have? Perhaps I am being too naive here, but I simply cannot imagine that this is the aim of a foundation paper.
Delete