As with last year the results are presented in a long PDF document (presumably to irritate those trying to access their results using a smartphone). Get your candidate number and CTRL-F ready and good luck!
To those who have passed, congratulations!
To those who have missed out, commiserations! These exams are hard – dust your scripts off and get back on the EQE horse – there is always next year.
New Rule 70a(2) EPC refers to the case “if a supplementary European search report is drawn up”. This implies that a response is required when a supplementary European search report is drawn up. However, the rule then discussing commenting on “the extended European search report” and “where appropriate…the opinion accompanying the European search report”. This implies that an opinion is required before a response under R.70a(2) EPC is required. So far, so vague.
Luckily, the (not-quite-complete, not-quite-draft) Guidelines for Examination (B XII 9) give us some handy guidance:
“There is, however, no requirement for the applicant to respond to the European or supplementary European search report where this was drawn up before 1 April 2010, where it is not accompanied by a search opinion (see XII, 1.1 for applications for which a search opinion is prepared) or where the search opinion was positive (see XII, 3.9).”
So basically the rule seems to be “no opinion, no response required”.
You can, however, file a response if you wish:
“…the applicant may still respond to the search report according to Rule 137(2) if he so wishes. In such cases, the applicant is encouraged to respond to the search report before the application enters the examination stage (see C-VI, 1.1). “
Whilst the more cynical among you may see these as hastily-rushed out PR-tools for the public spotlight of G3/08, I was actually quite impressed by the slide-shows (apart from the (mis)pronunciation of “patent”). Together they last about half-an-hour and may be useful as training for those pre-EQE or as a refresher for those with upcoming Appeals/Oral Proceedings in the CII area. As a warning though, they do contain sounds (and moving images).
I was just reading through G01/05 (as you do) and thought I’d highlight the following example:
An application is filed with an independent claim to having an element A, and dependent claims to the combinations A+B and A+C. The application as filed also discloses the combination A+B+Z, but not the combination A+C+Z. The search produces a citation which takes away the novelty of the claim to element A by itself. The applicant files a divisional application. In case I, the amended parent application claims combinations A+B and A+B+Z, and the divisional application claims combinations A+C and A+C+Z. In case II, the amended parent application claims A+C and A+C+Z, while the divisional application claims A+B and A+B+Z.
The applications are otherwise identical. The only objection made in either case is that the dependent claim to A+C+Z extends beyond the subject-matter of the parent application as filed. The applicant has to admit that on careful reading only the combination A+B+Z but not that of A+C+Z was originally disclosed.
If this was an objection under Article 123(2) EPC in the parent application in case II, the applicant can cure the objection by deleting the offending claim to A+C+Z. The wording “may not be amended” in Article 123(2) EPC has never been interpreted as indicating that the first putting forward of such an amendment is a contravention leading to automatic rejection of the application. Rather the applicant has to be notified of the objectionable matter and afforded an opportunity to amend in an allowable manner.
If however the objection in case I that the combination A+C+Z was not originally disclosed in the earlier application is raised under Article 76(1) EPC to the divisional application, then unless the applicant is permitted to amend to remove the claim to A+C+Z the result is both arbitrary and unfair. In case I he would lose the divisional application and with it his claim to A+C. In case II, he would keep the parent application and the divisional application, and have claims both to A+B and A+C. The needs of legal security for third parties would obviously be adequately served by allowing the deletion of the offending claim to A+C+Z in case I. To reject the divisional application in its entirety is in the Board’s view disproportionate.
May be useful to those revising for the EQEs and those considering divisional applications.