Below a summary of the notes made during the Tutor meeting of last week. The summary is based on my interpretation of what was discussed.
This year’s paper D was considered by the EC (Examination Committee) as an average paper with the right level of difficulty.
In general the EC made several comments:
- Tutors should teach candidates the law and also teach them how to apply it. These are two separate aspects. In particular the board wants to see that the candidate realises what a patent right is, what he can do with it, what the patent law is and how it is applied. The knowledge should be in-depth.
- Candidates need to make sure that they very carefully read the question and then answer this question. Sometimes a correct answer is given to something that is not asked. Especially in D2 make sure that the question is fully understood.
- Questions like “Legal situation?” in D2 are no longer asked. Instead the EC asks more specific questions to guide the candidate towards the desired answer.
- More than 100 marks are available for a D paper, especially more than 60 marks can be scored for D2. The EC did not so say how many more.
- EC stresses that they want to see an advice based on application of the law. This is often not understood by candidates leading to loss of marks.
- Usually one citation for legal basis is sufficient. If for example a G decision is cited in the GL then there is no need to cite both the Guidelines and the G decision. Higher ranking provisions are preferred.
- There is no recipe for taking the exam. Candidates need to know the law and know how to apply it.
- The exam is setup so that a wrong turn in the argumentation is not fatal.
- There are no “negative points” in paper D.
- No marks are rewarded for knowing the EPO practice which has no legal basis.
- There are no “hidden” questions. However candidates must carefully investigate and deal with the consequences of a certain problem and are usually expected to deal with these consequences.
- Usually there are four or five issues in D2 to be dealt with. Answerring 3 correct will likely mean a candidate passes. Even with only two issues dealt with correctly and a well made D1 may result in passing the paper.
- The EC would like people to pass, but has to apply a high standard to guarantee a certain quality.
- D1 and D2 are marked seperately, but if the score of a candidate is “borderline” sometimes the paper as a whole will be looked at to make a final decision.
- Don’t submit lists of abbreviations. These will only cost time and cause confusion with the EC.
- Knowing the case law (except for the key decisions) is not an absolute requirement for passing the D paper. Of course it is preferred if a candidate has a fair knowledge of the case law.
Some Q and A
Q: Would it be possible to publish a simulation on how an actual paper is marked, preferably three different solutions good-average-bad ?
A: No, this is not possible for privacy reasons.
Q: How precise does reference to legal basis have to be?
A: That depends on the legal basis. If it is a PCT article with several paragraphs be as precise as possible.
Q: Why does the EC not indicate the amount of marks for D2 questions ?
A: Because the final “golden solution” is only defined based on the answers by the candidates. The marking scheme is only then defined.
Q: How and by whom is the exam tested?
A: By “guinea pigs”.
Q: Who are those “guinea pigs” ?
Q: This year the exam (D2) contained 30% more words compared to last year(s). This is disadvantageous for candidates that don’t have a mothertongue in an official language. What is your view on this ?
A: This should not be a problem. There is plenty of time to score more than 50 marks in total. Time pressure is something that is taught by tutors. The exam can be passed without having to feel severe time pressure.
Q: The D2 exam often has questions half-way the text. Is it intended that these should be answerred prior to reading the rest of the text?
A: Not necessarily. It is up to the candidate to decide how to answer the paper. The position of the questions is merely a guidance to help candidates structure their answer.
R: The EC does not take into account the time pressure of the exam.
A: If a candidate knows and understands the law he can answer each question. Moreover a candidate only needs to score 50 marks to pass. A candidate will only feel time pressure if he wants to score more than 80 marks. The time pressure is something that tutors teach their students and/or comes from a lack of thorough knowledge on the EPC.
Other remarks (also by other tutors):
- Read the question => know the answer => (always) find and check legal basis => write down the answer and cite legal basis.
- For D1 it is probably better to have an answer for each question than trying to get full marks for only part of them.
- There is no “recipe” or “standard approach” for the exam.
- Mention the date of the exam on your paper. The advice is supposed to be given on the day of the exam, which is “today”. Quote: "Today is today and there can be no doubt or discussion about that "
Hope this is of any use.
For tutors having additional remarks or another opinion on what was said, feel free to post a comment.