B 2017: first impressions of the first one-for-all B-paper?

To all who sat the B-paper today:

What are your first impressions to this year's B-paper?
Any general or specific comments?
Surprising elements in the client's letter and the prior art?

How many marks do you expect to have scored?
What is your expectation of the pass rate and the average score?

How did this year's paper compare to the mock paper?
Similar difficulty level?
Did it meet expectations, in view of the video about the one-for-all A and B papers, the mock B paper and its examiners report?
Could you understand the examiner's objections? And the client's wishes based on his letter and his proposed amendments? Was the Art.123(2) argumentation difficult, if any? Clarity? Novelty? Closest prior art selection, distinguishung feature, effect, objective technical problem, and the rest of the inventive step argumentation?

Was the subject-matter well understandable, for chemists as well as e/m candidates?

The paper and our answers

Copies of the paper will be provided on this blog as soon as we have received copies of the papers, in all three languages (English, French and German).

The core of our answers will be given as soon as possible in a separate blog post.

We look forward to your comments!

Comments are welcome in any official EPO language, not just English. So, comments in German and French are also very welcome!

Please do not post your comments anonymously - it is allowed, but it makes responding more difficult and rather clumsy ("Dear Mr/Mrs/Ms Anonymous of 09-03-2017 09:09"), whereas using your real name or a pseudonym is more personal, more interesting and makes a more attractive conversation. You do not need to log in or make an account - it is OK to just put your (nick) name at the end of your post.

Please post your comments as to first impressions and general remarks to this blog.
Please post responses to our answer (as soon as available) to the separate blog post with our answer.
Thanks!

Comments

  1. Replies
    1. lol, I don't think they could have spelled it out much more

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  2. I included in claim 1 not only the garment, but also the original claim 6 directed to the material with detailed weight distribution of components. Without the second feature would be not inventive over d1+d2+d3, in my opinion. Also D3 teaches away the second feature, which is an indication of adding this feature to claim 1 for inventive step argumentation.

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  3. I included in claim 1 not only the garment, but also the original claim 6 directed to the material with detailed weight distribution of components. Without the second feature would be not inventive over d1+d2+d3, in my opinion. Also D3 teaches away the second feature, which is an indication of adding this feature to claim 1 for inventive step argumentation.

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  4. Hi, what was CPA for you? D1 or d2?

    I did include garment. Nothing further expect of what client recommended

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  5. I added the material, then took it out, so just had garment plus clients suggestions (which I thought were supposed to be crap but were what I was going to do anyway..so I'm doubting myself!). I made some sort of probably incoherent inventive step argument. Totally torn re cpa.. I think I did d3 (monitoring stuff in comfort /long periods).. Then at the end did a v brief one with d1 as cpa, in note form. Is the electrical whatsit of the heart a vital sign? I assumed it was then something made me think maybe it's not. Eugh. Didnt enjoy it!

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    Replies
    1. No, the electrical whatsit of the heart is not a vital sign: see last sentence of [03] of D3, as well as the definition in the second sentence of [01] of the application (which specifies there is only those four).

      W

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  6. I only incloded garment into claim 1.

    In my argumentation D2 is the closest prior art, but I am pretty sure it is wrong. I had the problem that D1 and D3 disclosed, that movement sensors can´t be used. So basically each docment was incompatible with all the others. Only D2 disclosed both movement sensor and optical sensor and a correction of optical data by means of the movement sensor data. BUT D2 is only measuring by distance not by direct contact to the human body.

    D1 says don't use movement sensors, because these can´t be used in connection with a pulse oxy. D3 says you only can use electrical sensors and no others sensors in connection of ecg socks.

    Then I thought - I have no idea ... i take the middle one ... but I guess is was probably D1 oder D3

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    1. I used D2 as cpa as well. I said it was the only document directed towards the "long term" monitoring of vital signs. Only D1 and D2 disclosed monitoring of vital signs at all (according to the definition in our application) and D1 was not suitable for long term monitoring due to being uncomfortable. D3 could be used for long term monitoring but not if vital signs. Finally, D2 was the only document to mention "noise reduction" using a signal output, another important feature of our invention.

      For the inventive step analysis I did quickly rush off an attack starting from D1. I had five minutes and thought I could get a couple of extra marks!

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    2. D2 is not about vital sigs, only D1 is. SO D1 is CPA.

      W

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    3. D2 is directed towards monitoring vital signs: the babies pulse is monitored and displayed, and pulse is stated to be one of the four vital signs as defined in our own application.

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    4. @SG: Indeed, I overlooked that.... :-(

      Cannot give a clear argument, but my gut feeling tells me that even now, D1 is the closest.

      W

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    5. I used D1 but I'm now convinced D2 was CPA. Especially if you look at the aim of the invention in the first or second paragraph.
      -M

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  7. What is then the c.p.a.?
    I took D1.
    My reasoning: it is the only one in the medical field (not D2) AND used to record vital signals (not D3, the ECG not being a vital signal according to D1 and D3), and on top of that the sensor is attached to the body.

    Side note: paper b is drifting more and more towards a correct PSA where the choice of cpa changes from pass to fail. But choice of cpa and PSA are already extensively tested in paper C. Paper B is the only paper dealing seriously with A.123(2) and they should keep the main focus (and points) on that!

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  8. I'm from the EM field, expected at least some CH topics (different claim categories, ranges, use claims...) & found the paper surprisingly easy - almost no CH references and only (too) few amendments necessary, so perhaps I missed something...
    I went for claim 1 directed to garments & CPA = D1, for the same reasons as cpa. There is not always a single possible CPA (cf. examiner reports), so depending on your argumentation, the evaluation may be adapted, even if CPA is sub-optimal.

    Question to someone having more experience : What effects have dependent claims in determining scope of protection in infringement procedure ? Concretely, if client's wish is to have protection for headbands and sockets & I manage to protect garments in the independent claim, what post-grant effects (except fall-back for examination) would have dependent claims to headbands & sockets ? Is there a difference in practice in Europe & US ?

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    Replies
    1. Did you sit paper D? For D, it is key that you understand that dependent claims do not add anything to the scope of protection (a long as the broad independent claim is valid).
      So, you have protection for gloves if you can get the claim to garments.
      And there is no other way in this B.

      W

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  9. Why did the examiner come up with D1 and D3, he only refers to D2 in item 2 of his communication? OK, D1 described common general knowledge, but he does not mention that either. And what type of document is D3 "Brookers, Phils and Siems"?

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    Replies
    1. D1 was cited by the applicant in [01].
      D3 because it discloses the comopsition [03] that the client refers to in his claim as Optitex. But surpised mt too he disnot mention it in objection 3.3.
      Actually, strange that the examiner does not address claim 5 and 6. I donot have a clue why. Who knows?

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  10. Objection 5 hinted me to amend the dependency in claim 3 from "1 or 2" to "2". Did anyone see more dependencies that were to be corrected?

    W

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  11. I put garment in claim 1. Because of that, I doubted whether I had to limit claim 5 to sock, wristband or headband for goggles, as only those garments are disclosed as being made of Optitex, or whether [06] should be read as "Any garment may be used. _Any_ garmen may be at least partially made of Optitex". I decided on the latter, and put that in my answer to argue why the amendment to claim 1 did not extend subject-matter to claim 1+6 / 1+oroginal5+original6.
    Any other views?

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  12. Did anyone use "...but no further software can be installed in the evaluation means 205." at the end of [04] of D1? I used it to argue that it is incompatible with the noise reduction from the invention, but that feels a bit poor if you see that D2 has a powerful jPhone.

    Did anyone use the fact that D1 shows common general knowledge? I did not. I just used it as a normal prior art document. Must have overlooked something, but what?

    W

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    Replies
    1. I used it I believed it was important, a teaching away.

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    2. Ah, but how was it teaching away? I donot see teaching-aways, I only see disadvantages (e.g., cannot install further software because too simple).

      W

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  13. I reintroduced claim 5 as "System according to any one of claims 1 to 4, wherein the garment [can also be: the attachment means] is a sick (1), a wristband (11) or a headband (21) for goggles (20)", based on oroginal claim 5 and the three embodiment. That gives a fall-back for garment, and still complies with the client's instruction "do not introduce further dependent claims".
    Do you think this was expected and gives me marks?

    W

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    1. I did an extra dependent claim for headband because it is clear that in that example the screen must not be used for displaying vital signs and so cannot depend from claim 4. I took no further dependent claims to mean, don't go looking for unclaimed features to add as new dependent claims.

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  14. Did anyone else amend the description to include "glove" - basis in claim 5 as filed, disclosure that any garment is suitable, definition of glove as garment in D3 (if memory serves)... allows glove to stay in the claims, overcomes the Art. 84 objection and keeps the client happy? I can't think why this would be wrong, but I have a niggle.

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    1. I argued that the glove could stay in the claim as it is a garment, and that the given list of garments only were examples and exhaustive, but i didn't added glove in the description. However, it cant have been wrong to add it.

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    2. Not exhaustive....the list, missed not.

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    3. Lin, I agree. From my understanding, a claim that is narrower than the description must be supported by the description. I argued that just because a term of the claims is not present in the description, it does not necessarily mean the claim is unsupported. Also, it is clear that the skilled person would know that a glove is a type of garment.

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    4. Sorry to be that person, but your niggle is in Rule 24(3) of the examination regulations:

      "The response shall be in the form of a letter to the EPO
      accompanied by the claims supplied by the client, amended as appropriate to
      meet the requirements of the EPC. The description shall not, however, be amended. "

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  15. According to par. [10]: "headband 21 is a garment" and par. [12]: "in this embodiment it is essential that the vital signs are not displayed on the screen on the evaluation means 25".

    Hence it is necessary to delete the feature "and configured to display the at least one vital sign on the screen" from original claim 4, as headband falls under amended claim 1 feature "garment" and there is no disclosure that the system comprising any kind of garment comprises a screen that is configured to display the at least one vital sign on the screen.

    Furthermore according to par. [05] the feature is not essential for the first embodiment, as "the vital signs may be outputted as an audio signal" and for the second embodiment, as according to par. [09] "remaining technical features ... are identical to the first embodiment".

    Finally according to par. [12] the vital signs may be output as an audio signal in the third embodiment.

    Therefore this amendment is also possible without violating A. 123(2) EPC.

    Rufus

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    Replies
    1. I just amended the claim with the screen to "wherein the garment is a sock or a glove". This claim has support because in those embodiments the vital can be displayed on a screen. No need to delete the whole claim in my opinion.

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    2. The claim referring to a screen did not say the screen on the evaluation means. It just said a screen.

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    3. @SG: how did you argue that you could keep ""glove" in the claims in view of objection 3.2? I think you need to delete "glove" completely to overcome the objection, and then you can only get protection for a glove if you broaden the claim all the way to "garment".

      W

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    4. Whoops! Sorry, my comment was not correct. I meant "sock or wristband". I deleted glove from the claims entirely, as I figured I didn't need it in light of the inclusion of "garment" in claim 1, as you suggest.

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  16. The amendment is not deleting original claim 4. The amendment is deleting the second feature of the claim, i.e., that the screen is configured to display the at least one vital sign on the screen.

    Rufus

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  17. Chemistry background here, and I heartily disliked paper B 2017. I found it difficult to get my head around the load of interacting features of the main claim (also very long!), translate the features to the prior art features, got scared at first reading because I was suspicious about questions on software inventions and/or display issues (never happened, but sent my adrenaline up). Compared to that, I think that paper A 2017 was easier on mechanics people than paper B was for chemists. And no, I don't think at all that the level compared to the Mock Exam.

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  18. Paper B is somehow unfair to chemists in my opinion.

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