Our attempt at Paper B 2024 - Biodegradable face mask
Difficult. This would be one word to describe this year's Paper B. Judging from the comments on our ‘first impressions’ blog post, many would still consider it an understatement.
The difficulty stems at least from the length of the paper. There were 30 pages and 5400+ words (English version) compared to 21 pages and 4200+ words of the 2023 paper. The theme was also very chemistry-related. We as non-chemists felt that candidates with specialist knowledge in this domain may have had an advantage in sorting out the patentability situation. Further adding to the difficulty was the fact that there were 11 claims in total including two independent claims (which in itself is not unusual, but adds to the complexity) and some legal issues relating to post filed evidence.
Unusually, the paper does not caution against adding additional dependent claims, which was the norm in recent papers. Is this to be understood as an invitation to add further dependent claims? Probably not, but explicit guidance in the paper would have been helpful.
Below is our attempt in broad outlines (with in particular the letter not being fully worked out).
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 02-03-2021 22:23"), whereas using your real name or a nickname is more personal, more interesting and makes a more attractive conversation. You do not need to log in or make an account - it is OK to just put your (nick) name at the end of your post.
Edit: changed title from "our solution" to "our attempt" since we found that this year's paper offers limited guidance on identifying the optimal solution among various alternatives (including those which are mentioned in the comments to this and the 'impressions' blog post).
Nico, Sander
Claims
1. Biodegradable disposable respiratory face mask comprising
at least one filter layer
comprising cellulose fibres, wherein the cellulose fibres are made
of individually loosened native cellulose nanofibres.
Support: Combination of claims 1 and 3 as filed, which is further limited by:
- "individually loosened”: supported by [042] 1st sentence, [048]
- “native”: supported by [022], [023], [024], [041], [042], …
- Distinguishing feature over D1: “individually loosened”, technical effect/advantage high filtration capacity, [036], with enhanced mechanical properties, in particular air permeability [037], client’s letter 2nd paragraph.
- Distinguishing feature over D2: “native”, technical effect/advantage: green/biodegradable [043], [055], client’s letter 3rd paragraph.
- Why the limitation to “individually loosened”? According to [041], ordinary cellulose already consists of cellulose nanofibres, but in bonded form. Thus, it appears that D1’s face mask is also made of native cellulose nanofibres (but not made of individually loosened ones).
- Why not "a pore size in the range of ..." as limitation? The application as filed defines it as a "challenge" to provide such fibres, cf. [036], while it appears from [042] and [048]-[050] that the 'solution' to this challenge is the nanofibres being "individually loosened". In other words, we considered the pore size as a potential 'result to be achieved' with the 'individual loosened' being the underlying technical feature that achieves this result.
- Note that “biodegradable” alone does not distinguish over D2, since D2 is also biodegradable (cf. D3, Examiner’s communication point 3), but to a lesser degree.
- Perhaps “single” instead of “individually loosened” could be an alternative formulation for “individually loosened”, supported by [041] and [048].
- Does "made of" exclude the nanofibres being coated with gelatin? We're unsure, but choose to maintain this wording (instead of "comprising" as mentioned in [022]) for the mere reason that this wording is already used in originally claim 3 and, most importantly, the proposed claim 1 of the client.
- Why not specify that the nanofibres have a “cellulose-I crystal structure”? According to [042] and [048], this is the “native” crystal structure and thus inherent to “native cellulose nanofibres”. As such, the crystal structure limitation is already implicitly present in “native cellulose nanofibres”. Adding the feature would not further change the scope.
- Why not limited to “FFP2”. See client’s letter page 2, “We therefore need to have our invention solidly protected by the patent to stop competitors from selling similar products, such as FFP2 face masks comprising nanofilter layers made using other plant fibres”. The client thus wishes broader protection than only FFP2 masks.
2. The biodegradable disposable respiratory face mask
according to claim 1 wherein the
cellulose fibres are derived from cotton or hemp.
[[3. The biodegradable disposable respiratory face mask
according to any one of claims 1
or 2 wherein the at least one filter layer is made of
cellulose nanofibres.]]
3[[4]].
The biodegradable disposable respiratory face mask according to claim 1[[3]]
wherein the
cellulose nanofibres are derived from papermaking waste
residues which comprises at least 1% (in weight) of cellulose fibres.
Support:
- [045]: “As a by-product of that method of papermaking, waste residues comprising at least 1% (in weight) of cellulose fibres are generated”
4[[5]].
The biodegradable disposable respiratory face mask according to any one of
claims 1
to 3[[4]] which is a surgical face mask or a dust
face mask.
5[[6]].
The biodegradable disposable respiratory face mask according to claim 4[[5]]
which is an
FFP2-type face mask.
6[[7]].
The biodegradable disposable respiratory face mask according to claim 5[[6]]
wherein the
FFP2 face mask comprises a multilayer structure with at least
three layers comprising at
least one outer layer (A) with a thickness of about 40 μm
acting as a water barrier; at
least one inner (middle) layer (B) with a thickness of about
8 μm acting as a filter layer;
and at least another outer layer (A’) with a thickness of
about 40 μm for contact with the
skin.
Remarks:
- Claim 6 refers anew to “a” filter layer instead of referring to “the” filter layer of claims 1-5. However, the Examiner did not raise a clarity objection and we therefore refrained from further clarifying the claim.
7[[8]].
The biodegradable disposable respiratory face mask according to claim 6[[7]]
wherein the
FFP2 face mask comprises five layers comprising the outer
layers (A and A’) and further
comprising two inner (middle) layers (B and B’), acting as
filter layers, separated by a
hydrophilic separation layer (C).
8[[9]].
The biodegradable disposable respiratory face mask according to any one of
claims 6[[7]]
or 7[[8]] wherein at least one layer is
manufactured by conventional techniques for making
nonwoven fabrics such as melt-blowing or spunbonding.
9[[10]].
The biodegradable disposable respiratory face mask according to any one of
claims
6[[7]]
to 8[[9]] wherein the outer layers (A and A’) are made of nonwoven
cotton or hemp fabric.
10[[11]].
Process for manufacturing a biodegradable filter layer for a multilayer
FFP2-type
face mask, the process comprising: providing papermaking
waste residues which comprise at least 1% (in
weight) of cellulose fibres, milling using grinding
balls, and casting into a thin nonwoven layer by melt-blowing or spunbonding.
Support:
- [045]: “As a by-product of that method of papermaking, waste residues comprising at least 1% (in weight) of cellulose fibres are generated”
Remarks:
- Why not add “gelatin”? According to [046], “in our method of paper making, gelatin is admixed…” which suggests that that other papermaking waste residues may not need to comprise gelatin. In addition, the technical effect of being able to generate native cellulose nanofibres in a simple manner and without any need of chemical treatment seems to be independent of the gelatin, cf. [048].
Patentability
of claim 1
Note: the
following is a broad outline of the argumentation, but not fully worked out.
Novelty
Claim 1 is
novel over D1 since the cellulose nanofibres in D1 are bonded and not “individually
loosened”.
Claim 1 is
novel over D2 since the cellulose nanofibres in D2 are synthetic polymer fibres
and not “native” cellulose nanofibres.
Claim 1 is
novel over D3 for at least the reason that it does not disclose a face mask.
Inventive
step
D2 may be
considered as the closest prior art since it relates to a face mask made of cellulose
nanofibres providing protection against aerosols (nanoparticles smaller than
1μm, cf. [035]). D1 does not address aerosols, while D3 does not even concern
face masks.
The distinguishing
feature of claim 1 over D2 is that the face mask is made of native cellulose
nanofibres.
The
technical effect of the distinguishing feature is that the face mask is highly
biodegradable, cf. [055] which states that the nanofilter layer disintegrates
completely within 30 days, whereas according to D3 [004], D2’s cellulose
acetate nanofibre layer can take years to completely biodegrade.
The
objective technical problem may be formulated as how to obtain a more biodegradable
face mask.
D2 does
not contain any hint or suggestion towards biodegradability.
D1 does
disclose a completely compostable face mask. However, in view of the disclosure
of D1, the skilled person would replace D2’s cellulose acetate nanofibre layer
by D1’s layer of 100% organic filtering felt made of compacted cellulose fibres.
This combination, however, would not lead to a solution falling within the scope
of claim 1 since D1’s layer does not comprise “individually loosened” cellulose
nanofibres.
D3 merely
confirms that D2 is insufficiently biodegradable and does not contain any
teaching towards improving the biodegradability.
Remarks
on the patentability of claim 10
D2 also makes
sense as CPA since it discloses a process of making cellulose nanofibres (albeit
a chemical process which makes synthetic and not native polymer nanofibres).
D1 and D3
do not seem to lead to a solution falling within the scope of claim 1 as they
are entirely silent on manufacturing processes.
Significance
of the additional laboratory experiments and D4:
The additional laboratory experiments and D4 represent 'post-filed evidence' which together demonstrate that the use of individually
loosened native cellulose nanofibres
not only achieves a much better biodegradability, but also better breathing
comfort.
This
technical effect is already implied by ('encompassed by') the application as originally filed (cf. [042]
which states that the cellulose nanofibres of D2 have poorer mechanical
properties, which according to [037] relate to the breathing comfort, or cf. [056]
which also compares to commercially available FFP2 masks made from synthetic
polymers).
As such,
it is likely that the additional laboratory experiments and D4 as reference for
the used test methods would be allowable under the 'free evaluation of evidence' principle, GL G-VII, 11. This is recently confirmed by G 2/21.
However, the
laboratory experiments relate to FFP2 masks, while claim 1 is broader than that.
One can normally not rely on experiments pertaining to a specific embodiment to
demonstrate inventive step over a much broader claimed range. On the other
hand, if the advantage of better breathability is obtained in a FFP2 mask, it stands to reason that similar improvements are obtained in other types of face masks
compared to synthetic polymer nanofibres. It therefore would make sense to also
include the laboratory experiments and reference to D4 in the response letter
to the EPO as further demonstration of the improvements obtained over D2 (for
example, as part of the problem solution approach using the “improved breathing
comfort” as an additional technical effect, or perhaps as a separate section in
the letter).
individually loosened as technical feature..... crazy.
ReplyDeleteI cannot believe this is the model answer
This is quite surprising indeed! Cau
DeleteGood luck enforcing that!
DeleteAlso went for the pore-size, unfortunately kept the hemp in the claim, because I thought pore-size is only disclosed in connection with hemp. But my feeling is that individually loosened is highly unclear, while having a pore size with a defined diameter is clear.
DeleteThe above is only one answer, and I dont believe it is the expected answer (100% sure regarding the method.)
DeleteI wouldn't have never spot them.
DeleteGiven the fact that there was so much emphasis on the post-filed evidence, I would feel more comfortable with a solution that uses it as a technical effect in the discussion of inventive step. If your solution is the one that was intended, the post-filed evidence would still be somewhat of a red herring.
ReplyDeleteDanke für eure Lösungen! Ich habe in Anspruch 1 die FFP2-Gesichtsmaske und die Cellulose-Nanofasern aufgenommen, die "eine Cellulose-I-Kristallstruktur" aufweisen. Ich war mit bei dem Begriff "native" nicht sicher und habe diesen daher vorsichtshalber spezifiziert...
ReplyDeleteWarum habe ich die FFP2-Maske aufgenommen? Weil ich, wie ihr bezüglich D4 und der Experimente auch geschrieben habt, meine Argumentation ausgehend von D2 wie folgt aufgebaut habe:
Unterschied = dass die Cellulose-Nanofasern eine Cellulose-I-Kristallstruktur aufweisen;
Effekt = dass die mechanischen Eigenschaften der Cellulose-Nanofasern günstiger sind für einen leichten Atemwiderstand. Darauf weist die Anmeldung in §38,56 hin. Die Wirkung ist also grundsätzlich von der technischen Lehre der Anmeldung umfasst und von der ursprünglich offenbarten Erfindung verkörpert. Was fehlt ist ein konkreter Nachweis des Effekts, den ich über die neuen Laborversuche im Sinen von G 2/21 nachgereicht habe.
Ich hoffe, dass ich damit noch an den 45 Punkten kratzen kann...
Die FFP2-Maske war als Merkmal daher notwendig, weil die Versuche nur mit einer solchen durchgeführt wurden...
DeleteEs gab in diesem Paper B irgendwie zu viele Möglichkeiten und man konnte die "erwartete Lösung" kaum abschätzen.
Volle Zustimmung zur Argumentation zur erfinderischen Tätigkeit. Es würde einen schon wundern, wenn die Aufgabenstellung nicht darauf hinaus will. Fraglich ist aber, was das gewünschte Unterscheidungsmerkmal ist...
DeleteStill so much confusion, not a relief
ReplyDeleteSo basically next year again for me (although a chemist). Did limit it to single cellulose nanofibers for distinguishing it from D1 and decomposition within 30 days for distinguishing it from D2. In case you are correct with your solution, which seems reasonable, it is nice how the EPO did make a pass dependent on if you recognized paragraph 22 (Cellulose comprises always cellulose nano fibers) in connection with all this special knowledge about crystal structures and so on. Also well played that the client, who is the technical expert, does not know that cellulose comprises nano fibers. Also the examiner did not know that.
ReplyDeleteBefore everything is full with comments: How can you extend the comment section? Above 200 or 250 comments I cannot see further comments.
https://eqe-b-em.blogspot.com/2024/03/our-solution-to-paper-b-2024.html?commentPage=2
Deletethank You!
Delete@Chris. Thanks! and interesting
DeleteIf you struggled as a chemist, imagine us the poor non-chemists.
DeleteCrystal structure, I-fine structure, II-fine structure, native, cellulose, acetate, non-woven, precursor, derivative, all of which seemed Chinese to me.
About the link, if you add this at the end of the URL, you can go to the second page:
?commentPage=2
The examiner only knows the prior art and general knowledge of the skilled person. The application is neither prior art nor general knowledge. If it were paper C, we are not supposed to take an information from the opposed patent to complete the teaching of D1
DeleteThis comment has been removed by the author.
ReplyDeleteWow... the solution seems reasonable but is of completely different nature as mine. So, re-sitting next year, welcome to the team everyone who did not go in the same vein. :(
ReplyDeleteI wouldn't be able to appreciate the technical effect of loosed fibers...
Also, the fact that DP experienced attorneys had difficulties with the subject-matter and the proposed solution also indicated the level of difficulty! What can we say about us, junior patent attorneys that have 3+ years of experience (only)??
DeleteI searched yesterday, there is a decision T1688/21 dated June 2023. The board believes that "made of" = "consist ing of ", so no other component allowed.
ReplyDeleteI am not sure whether it is involved. But this decision and G2/21 gave me a feeling that they drafted the paper B two years ago and then would like to add some "up to date" points so added the post evidence and the "made of" without considering the consistency with the original paper and the confusion they may caused.
This explains some illogical part.
As a non-chemist, I would certainly not be able to get to this solution, not even with double the time. What is the meaning of native? Googling this word makes it even harder to understand.
ReplyDeleteThis was like a real life office action, which sometimes takes 8 - 16 hours to finish in real life. How could we have done this all in such a short time?
Also, are they examining people for being "fit to practice" before the EPO, or for being good scientists?
Anyone else also included electrostatic charges in claim 1? I thought these were essential to achieve the desired effect of high filtration capacity.
ReplyDelete[052] As a result, the biodegradable nanofilter layer according to the invention exhibits
high filtration capacity attributable to the small pore size AND to the occurrence of
electrostatic interactions retaining the coronavirus.
I think the loosened fibres alone are not enough to produce the desired effect.
I did! I included the 100 um average pore size and the galetin coating specifically based on this paragraph. Although whether that was the intended solution is a different answer. So many red herrings this year
DeleteHow is 'individually loosened' clear? I seem to recall that the application states that the improved properties are due to the nanofibres themselves as well as electrostatic interactions, the latter being possible only due to the presence of gelatin. I will need to look at the paper again to be sure!
ReplyDeleteSee my comment above, I thought exactly the same, but directly included the electrostatic charges.
DeleteYes, and I clearly agree! Did the application define individually loosened? What does that even mean? Do the fibres still touch each other or are completely separated? It's a cellulose fibre, so does individually loosened mean each fibre is loosened in itself? For e.g., is it relaxed so it is, let's say, more stretchy? Or does it mean that two fibres are physically separated from each other? So many questions!!
DeleteI thought exactly the same
DeleteMy interpretation of the statement "/We therefore need to have our invention solidly protected by the patent to stop competitors from selling similar products, such as FFP2 face masks comprising nanofilter layers made using other plant fibres/” is that the client is interested in protecting FFP2-type masks ... of different fibres. Not that the client is interesting in protecting different types of masks per se.
ReplyDeleteIf claim 1 is limited to specify FFP2-type masks, then D4 and the client's evidence can be used in support of inventive step (D2) for a problem/solution relating to improved comfort/breathability.
FFP2 is also a distinguishing feature over D1, because D1 discloses that the conventional hemp/cotton face masks only achieve FFP1 filtering (as per the table in the patent at something like [029] or [030]).
(for completeness...) my claim 1 specified that the masks were FFP2-type and characterised in that the filters are made from native cellulose nanofibers
DeleteI agree! This was exactly my interpretation and also my novel feature over D1.
DeleteThis also seems like a reasonable interpretation of the client's statement which we did not consider in our attempt above, and which would eliminate the discrepancy between the laboratory experiments and the claim scope.
DeleteDitto for me: FFP2-type face mask, comprising* cellulose nanofibres, characterised in that the cellulose nanofibres are native cellulose.
Delete*Put claim 3 and [22] as basis, but could have added matter by not dealing with 'made of' (i.e. consisting of) and using comprising instead - need to check what [22] said!
Absolutely agree. I also interpreted the client's intention as wanting to protect FFP2 masks. The paper was heavily talking about FFP2 masks, it didn't mention other masks too much. My solution is probably very similar to yours.
DeleteAlso in this case and when amending claim 1 to be directed to an FFP2-Mask, D2 is clearly the CPA. This then combined with the laboratory experiments is the only "expected" solution I can think of.
DeleteBut D1 also meet the criteria for FFP2 mask, which is 94% filtration rate for particles under 5um
DeleteAbove 5 I mean...
DeleteI think FFP2 realted to particles under 2µm
DeleteEU standard given in the table is above 94% 5um, 2um maybe the criteria of the applicant or FFP3.
DeleteSo from the broadest known meaning, FFP alone maybe not sufficient.
I think the definition of FFP2 was 94% for all particles of 2um or greater (which seemed like a slightly ambiguous way of wording it, presumably it is 94% percent for particle sizes of 2um AND for all particle sizes greater than 2um). The filtration rate in D1 was something like 98% for 4um I think, so the data point in D1 was not contrary to the FFP2 standard, but it was also not disclosed that D1 met the standard. All of this led to a lot of second guessing by me!
DeleteMaybe I remember not correctly. I lost my mind after the exam. Sign
DeleteI was on the cusp of specifying it was an FFP2 mask, but changed my mind based on the client letter.
DeleteI really feel the examiners have thrown in too many red herrings / distractions this year. The language of the client letter should have been much clearer with what they wanted.
I looked it up.
DeleteFFP2: 94%, >2µm
D1: 98%, >3µm
... so D1 is not clearly and directly disclosed as FFP2?
D1 showed an FFP2 mask in my opinion.
DeleteBut how? 98%, >3µm is not enough to be classified as FFP2.
DeleteI also chose the feature "single native cellulose nanofibers" for the main claim ... however, in my opinion D2 is not the closest prior art. D1 is also directed to biodegradable masks with improved breathability (see [011], [012] and the photo => same purpose/task <=> however D1 only concerns "reusable" nanofilter systems for FFP2 masks) and has more overlap than D2 with regard to the features (D1 discloses the use of cellulose, thus implicitly of "native cellulose nanofibers" - but no single fibers => see description of the application <=> D2 does not disclose native cellulose nanofibers (but synthetic polymers) and no single fibers, thus has more differences).
ReplyDeleteI agree (see my comment below). I used both documents as closest prior art.
DeleteI used D2 as CPA. D1 for me didn't relate to FFP2-type masks as it had 98% filtration efficacy of particles above 3 um, rather than the required 94% filtration efficacy of particles above 2 um required to be FFP2.
Deletefor claim 10, there is no basis for not including the gelatine. The only method using papermaking waste residues disclosed in the application is "our method". And papermaking waste residues according to "our method" comprises gelitan.
ReplyDeleteNot including gelatine contraves Art 123(2) EPC.
This is a valid argument in my opinion and I also included gelatine. For me, 1 % cellulose and 0.1 % gelatine are disclosed only in such a way that they cannot be separated.
Deleteactually the 0.1% is not necesary, there are basis for only stating "1% cellulose and gelatin". paragraph 046. But no basis for only cellulose.
DeleteI also included gelatine for the same reasons
DeleteI agree with Mike. Also, all the problem-solution approach on the method claim is based on gelatine in combination with the step of milling using grinding balls. There is an effect obtained by synergy well described in the application as filed and while D1 describes gelatine but with another associated technical effect.
DeleteThank you for providing a suggested answer, really appreciated. I chose D1 as CPA for C1 and I still stand by that, and D2 as CPA for C2 (and used the FFP2 evidence for this claim).
ReplyDeleteMy reasoning for C1 was as follows:
D1 is the closest prior art because D1 relates to a similar purpose of the present invention of providing biodegradable face masks using natural cellulose fibres which have improved breathability (D1[intro], [004]), which can also be disposed of (D1[014]). D1 also discloses the combination of faetures which consitutes the most promising starting point for a development leading to the invention - GL G-VI, 5.1.
D2 is not the closest prior art because D2 relates to a different purpose of reusable face masks, rather than biodegradable and disposable face masks.
Agree - did the same
DeleteI agree, see my comment below
DeleteCompletely agree - I also don't understand why the client's explanation of "biodegradability" seems to be dismissed by so many? It is at least a good argument against biodegradability of D2.
DeleteI included "pore size less than 100 nm" instead of the "individually loosened" feature and hope that it won't lead to a large subtraction of points, as it is basically the same feature, once as 'result-to-be-achieved' and once as 'structural technical feature'.
ReplyDeleteI would like to raise a discussion about the closest prior art: D1 also had the purpose of providing a facemask made entirely of natural materials, which in my view is a strong argument to choose D1 as CPA. On the other hand, D2 can be considered as CPA, not only because the invention intends to replace the conventional polymer mask of D2 and because D2 has many common features, but also because it is not possible to use the late-filed evidence otherwise. So I decided that in this case, both D1 and D2 qualify as closest prior art and performed the problem solution approach twice with both documents as a starting point (cf. Guidelines G-VII, 5.1, 2nd para.). Is there anyone else who did this or at least thinks that this is reasonable?
Reading the comments here and of the previous blog post, it seems like we all have totally different solutions... This year's paper B is completely overcooked.
ReplyDeleteI kind of have problems with the feature „biodegradable“ being part of the problem and the solution, but I guess since it was not seen as a distinguishing feature it should be allowed.
ReplyDeleteWell... See you next year :)
ReplyDeleteI went for gelatin coated nanofibres and my only hope is that this would be considered a suboptimal yet acceptable answer.
At least we got each other guys to laugh at how absurd the situation is!!
In my view D1 is closer in purpose and field. Note that D2 is directed at an only arguably biodegradable Cellulose-acetate which takes up to more than several years to decompose (D3, [004]). In the context of the original application as filed it is apparent that 3 months for the mask or 30 days for the layer are required to be considered "biodegradable". Moreover, they explicitly gave us an EU-norm providing a defintion of 9 months, the skilled person would not consider the scope of the claims to extend that far in view of Art. 69 and the protocol on that I think. Otherwise every plastic or even a rock might be considered biodegradable, even if it might take a few Milenia...
ReplyDeleteD1 is about biodegradable masks, D2 is about nanofilters which are NOT biodegradable.
DeleteWhat is CPA? I think it's clear, no?
The thing is, that the EU-norm was not cited as given a definition for "biodegradable". It only says that it gives a way of measuring something. Nowhere in the document did it say that the definition of biodegradeble is that it has to be converted: "We have
Deletecarefully considered the examiner’s opinion, but we wish to stress that biodegradability
can be measured and compared according to international standards. For example, a
standard used by the EU is that more than 90% of the original material must be
converted into CO2, water and minerals by biological processes within six-to-eight
months."
"biodegradability can be measured and compared" is not equivalent to "is defined according to the norm". There is no unambiguous evidence that the norm actually defines "biodegradable".
Interesting approach. I would have interpreted the essence of the invention in a similar way. However, when considering "a pore size in the range of ..." v.s. “individually loosened” I came to the opposite result. I would see “individually loosened” as a “product-by-process” feature and “a pore size in the range of …” as the associated structural feature. That's why I chose the latter.
ReplyDeleteSame here. It makes much more sense to me! /Cau/
DeleteI think you have a good point. In particular in view of inventive step: Can loosened fiberes even support a sufficient filtering effect, e.g. for the Coronavirus, if no nanopores are present. If I recall correctly the nano-cellulose was further processed by some method to be manufactured into masks. One may argue that the loosened fiberes cannot be directly and unambiguoulsy linked to the technical effect of better breathability at all.
DeleteI agree. The feature "average pore size of less than 100nm" is a well-defined structural/functional feature that is disclosed in an enabled manner.
DeleteDanke für eure Lösung,
ReplyDeleteHat jemand die Beschreibung parat zum Nachlesen? Ich habe sie nicht in meine Aufgabe kopiert und sie ist noch nicht online.
Ich hatte es so verstanden, dass die einzelnen Fasern (erst) die nanofasern sind und es sich vorher um normale Cellulosefasern handelt, die zwar nativ sind, aber eben nicht nano, da nicht gespalten.
Zudem hatte ich es so verstanden, dass zur Spaltung in NANOfasern zwingend Gelatine dabei sein muss. Es gab zwei direkt aufeinanderfolgende Absätze und in dem zweiten war gelatine zwar als vorteilhaft angegeben, aber aus dem Kontext klang es so, dass nur mit Gelatine die Spalting in nano funktioniert.
Für mich war nicht ersichtlich, dass es bisher native Nanofasern gab. ...
https://link.epo.org/elearning/B_2024_EN
DeleteD1 is about masks, D2 is about nanofilters.
ReplyDeleteWhat is CPA? I think it is clear, no?
i.e. D1 is CPA, otherwise I guess I haven't learned anything in the past years :D
D1 is about biodegradable masks, D2 is about nanofilters which are NOT biodegradable.
DeleteFor me it was clear D1 was CPA. Shame on me if it's not! /Cau/
DeleteFilters in D2 are also meant to be re-used, while the masks in D1 and Claim 1 are meant to be thrown away after one time use. But as one comment above statet, probably they wanted us to limit the claim to FFP2 masks which are only accessible by the filters in D2. In that case D2 would be CPA imho.
DeleteI think both could be considered as CPA for claim 1, and that D2 is CPA for the method claim. I also think that DeltaPatent proposed claim amendments are not the excepted ones by the EPO but.. wait and see..
DeleteD1 is about masks without nanofilters. D2 is about nanofilters for use in masks, and additionally also discloses masks with nanofilters. As the invention is about masks with nanofilters, I think D2 is the CPA.
DeleteI put claim 11 of the method as claim 1.
ReplyDeleteNew claim 2 = old claims 1 + 3 +4 = biodegradable nano-fibers derived from papermaking waste residues according to the process of claim 1.
This implicitly includes, native, single, loosened,...
I do realize that it is more limiting than a product claim, but i was like: the FFP2 mask of the client can only be manufctured according to his method, so worries over there.
Are amended claims 1 and 10 unitary? Claim 10 defines only multilayer FFP2-type
ReplyDeleteface mask...
I included a full paragraph to defend unity regarding claim 1 and 10, stating that claim 10 covers a method bound to obtain an intermediate product which is necesarily comprised in the mask covered by claim 1.
DeleteI don't agree with the reasoning about nanofibres. I think there is a clear distinction between cellulose fibres and cellulose nanofibres in the application. If all cellulose fibres were to be considered as nanofibres, then original claim 3 simply would not make sense with respect to original claim 1. The applicant is supposed to be a technical expert. I agree that paragraphs 40 and 41 are confusing though.
ReplyDeleteI agree with you. And another argument is that the examiner himself did not oppose D1 over novelty of claim 3. So the examiner himself believes that D1 does not disclose nanofibres, and that cellulose does not imply nanofibres.
Deleteparagraph 19 and 22 also clearly distinguishes over cellulose fibres ([019]) and cellulose nanofibres ([022]). This implies that cellulose can comprise fibres (not being nano) and nanofibres.
DeleteAlso, paragraph [040] states that it is not an easy task to obtain nanofibres from cellulose. If cellulose already comprises nanofibres, how can it be a difficult task?
I agree with you too. In my opinion, this is the main reason why the exam was so difficult. In my view, there is no clear way out. Either it was thought that cellulose nanofibers are already implicitly disclosed by cellulose fibers, all the points you mentioned and the fact that the technical expert aka client himself apparently didn't realize it speak against it. Moreover, all the solutions mentioned are extremely vague " individually loosened native nanofibers" can hardly be called a clear feature. On the other hand, if nanofibers are not considered to be already present in cellulose, then paragraph 41 contradicts this assumption. It is therefore not possible for the candidate to make the correct decision without being a "technical expert". Apart from the fact that, assuming nanofibers are already inherently present in cellulose, the original claim sentence was absolute nonsense: filter layer comprising cellulose fibers? In this case, the robber's scarf from the Middle Ages was state of the art.
DeleteYes, super difficult. I did not see [041] at all, just missed it due to the massive amount of information. Just saw [019] and [022] which for me were clearly saying that cellulose nanofibre is a special type of cellulose fibre which is NOT automatically comprised in cellulose fibres. I was still a bit confused because I didn't find support for the "made of" in claim 3 in the description - [019] and [022] only say comprising. So ended up leaving that in claim 1 instead of "made of" and moved on, still hardly having time to think and definitely not to double-check anything. That had the upside that I could just about finish a somewhat decent part of the argumentation - but perhaps then 0 points for claim 1......
DeleteBut I'm sure that if I had seen [041] I would have spent SO MUCH more time wondering how on earth to amend claim 1 that I would not have had time to write the whole argumentation... Inventive step was a lot with 3 documents and 2 independent claims. I really think it was impossible to finish this exam in time with a correct answer.
In the French version, [041] disclosed that "il est difficile de séparer la cellulose en
Deletenanofibres isolées", which does not mean it is impossible or incompatible with Art. 83 EPC, but rather implies a technical challenge to be overcome. Claim 3 as originally filed indicates the client wants protection for nanofibers, with pars 49 et seq. + claim 11 as filed providing a solution to this technical problem of obtaining this separation.
Regarding claim 5 (formerly claim 6), were not we supposed to name the EU standard to further define FFP2?
ReplyDeleteNo objection?
DeleteFrom what I remember there was an objection... Could anybody upload the full paper? It is still not available on EPO website !!!
DeleteI do not agree with D1 being entirely silent on manufacturing. Isn't the following passage from [012] of D1 also teaching a manufacturing process: "These biodegradable hemp face masks are composed of a single layer (thickness 2 mm) of 100% organic filtering felt made of compacted cellulose fibres from hemp without chemical treatment.", namely compact cellulose fibres from hemp without a chemical treatment?
ReplyDeleteI agree with you. Just choosing D2 as CPA over claim 10 by stating that D1 was not disclosing a method was not enough and was not correct.
DeleteYes, exactly. That's why I went for D1 as CPA for the process claim and argued that inter alia the milling step was missing. For me the process of D2 was much more distinguished than the one of D1.
DeleteAgree. Had the same reasoning in mind. D1 discloses manufacturing a biodegradable mask, D2 not. So, felt that D1 is closer than D2 for the process claim.
DeleteIs your amended claim 3 not entirely unclear? How would a skilled person know that the end product was made from such starting materials, as compared to other cellulose?
ReplyDeleteI amended the claim to include the feature that the material contained gelatin (which is present in the clients waste), as the skilled person would be then able to tell whether they were working inside the claim or not.
After thoroughly thinking, I think claim 1 maybe be:
ReplyDeleteBiodegradable disposable respiratory face mask comprising at least one filter layer with comprising cellulose fibres, wherein the cellulose fibres are made of native cellulose nanofibres and wherein the filter layer has an pore size in the range of (100nm - .....). If comply with Art123(2)
This is better than FFP2, since the similar products as surgical mask and FFP3 may also be included which still being novel over D1. And can use D2 as the CPA.
This is basically my solution, too. I amended claim 1 (in German) into:
DeleteBiodegradable disposable respiratory face mask comprising at least one filter layer, which comprises native cellulose nanofibres and has a pore size of less than 100 nm.
that's exactly how I drafted claim 1. Hope you are right! But I used D1 as CPA (actually, I didnt have enough time to assess all information as I should under normal conditions (i.e. not rushing) /Cau/
DeleteIf you included the pore size, you would also need hemp. 100nm is only disclosed in combination with hemp: Fig. 1 discloses 100nm, par. [050] refers to Fig. 1 and no other material is disclosed for giving such struktures. In my eyes, not including hemp would mean A. 123(2) violation as there is no info given that the feature "100nm" and hemp can be separated.
DeleteIn the description, there are pore size irrelevant to hemp.
Deletehttps://link.epo.org/elearning/B_2024_EN
Just hoping paper C isn't 50% longer than every previous exam since 2017.
ReplyDeleteIf designed by the examination committee of part B, it will be 60 pages.
DeleteI am sorry but I don't get what Delta Patent mean here:
ReplyDelete"Why not add “gelatin”? According to [046], “in our method of paper making, gelatin is admixed…” which suggests that that other papermaking waste residues may not need to comprise gelatin. In addition, the technical effect of being able to generate native cellulose nanofibres in a simple manner and without any need of chemical treatment seems to be independent of the gelatin, cf. [048]."
I am also curious about the inventive step reasoning for such a method claim not including gelatine. As D2 is CPA, the only distinguishing feature is the milling step... and I don't recall any technical effect associated to the milling step alone...
Remarks:
ReplyDeleteWhy not add “gelatin”? According to [046], “in our method of paper making, gelatin is admixed…” which suggests that that other papermaking waste residues may not need to comprise gelatin.
I don't agree with the above. It is only their method of paper making which results in the right kind of nanofibres. There is nothing to suggest that any other method will also result in the same product. So gelatin (or something with its relevant properties) is essential. If gelatin is left out, the resulting nanofibres may not be suitable. There was no other material disclosed which could be used as a gelatin substitute. So if your OTP is nanofilter with improved properties which depend on electrostatic interaction, I think gelatin has to go in Claim 1.
Agree with Anna, Delta Patent is wrong here.
DeleteAnna, that's exactly what I thought. Hence the hint to Art. 83 in the communication?
DeleteIt appears features common to all embodiment is not equal to essential feature. Gelatin is common with all embodiment but is not essential for the separation of nanofibres ?
DeleteTotally agree with Anna. Delta Patent solution without gelatin is wrong. Gelatin is essential feature for sure. The feature of "Native" is too obvious from D1. "Native" should not be a distinguishing feature.
DeleteThe "paper residue" claim is the only claim without novelty or inventive step objection. It is only clarity objection. It is a hint that we should make it clear by adding "gelatin" and adding it into claim 1. Gelatin is essential and inventive over D1 and D2 and has so many effects.
DeleteInteresting solution, and completely different from mine. I combined original claims 1, 3 and 4 to form amended claim 1, and also specified therein that the mask is a FFP2 face mask (which is mentioned throughout the description, e.g. [30], [34], [53]) and that the mask has multi layers with the nanofilter layer being the inner (middle) layer ([53]). Also, I specified that the waste comprises at least 1 wt% of cellulose fibers ([45]) and gelatine ([47]), and that the cellulose nanofibers become coated with gelatin during a mechanical milling with grinding balls ([51]).
ReplyDeleteSpecifying the mask to be an FFP2 mask was clear to me because the focus in the application was on FFP2 masks. Also, the experimental data in the client’s letter focussed on FFP2 masks, and the client describes the invention as being an FFP2 mask. Also, in my view, it made only sense to hand in the experimental data when choosing D2 as closest prior art – which, in turn, works only when the inventive mask is an FFP2 mask. D1 and D3 do not disclose an FFP2 mask, thus making D2 the clear choice as closest prior art. The resulting distinguishing features are thus the biodegradability and the deriving of the nanofibers from papermaking waste residues, hereby coating of the nanofibers with gelatin – these are synergistic features, and they are not disclosed in or made obvious by any of the cited documents alone or in combination.
Anyway, it seems that everyone has a completely different solution – which is caused by the enormous length of this year’s paper, which was about 10 pages more than in the previous years (for the same examination time of 3.5h!). This year, there were so many features in the 9-page-description which could have been selected as a distinction from the prior art – whereas in previous years, the description had only about 4 pages (1 of them being an introductory part), i.e. about 3 pages to choose a distinguishing feature from, which significantly limited the options, thus making it much easier. Also, since this year’s paper was so incredibly long, the time to consider various options was very limited, resulting also in a lack of time to re-read the description (as one would do in real life)…
Doris!!! I have similar solution as you.
DeleteI combined original claims 1, 3, 4 and "5" to form amended claim 1, so my claim 1 has "gelatin" and "the three layers features" and "FFP2 face mask". If you fail, I will probably fail the paper B too. But I think the delta patent solution of "native" is super super general and lack "inventive step" over D1.
Everybody recognised this paragraph 41? Every of my claim is the same as dp solution, the only difference is that I did not use the single or loosened feature. So as I guess I failed, because it's not novel.
ReplyDeleteWelcome to the club
DeleteI didn't notice it either :( That was a shock because before that I had an ok feeling about the exam . But there was simply so much to read that I just did not see the sentence in [41]. It's super annoying since not seeing a sentence related to a feature which does not decide on novelty would maybe result in a loss of 5-10 points and not all for the claim... it does feel really unfair, considering that there was just an absurd amount of text to read and absolutely no time to stop and double-check if one also intended to manage to write at least a decent part of the argumentation. I decided to try not to spend too much time with the claims so also ended up mistakenly deleting claim 3 as suggested by the client although I did leave the "comprising" in claim 1 instead of taking the "made of" from claim 3 - just had no time to stop and see that it was nonsense to delete the claim as I didn't end up using it in claim 1. Just have to hope that the argumentation (plus the method claim, although I did include gelatine too) is somehow still enough to bring me over the 45 points. Maybe it works out, I really hope so...
DeleteI found paragraph 41 contradictory with what is stated in paragraph [019], [022] distinguishing between cellulose fibres and cellulose nanofibres, and also with paragraph [040] which states that it is a hard task to obtain nanofibres from cellulose.
DeleteHow getting nanofibres from cellulose can be difficult if cellulose itself already comprises nanofibres?
Also this paragraph [041] is contradictory with the client's amended set of claims and, more important, with the examiner's position who oppose D1 to claim 2 and D2 to claim 3.
As a general rule, are not we supposed to consider that the examiner is always right?
If R3 was not novel over D1 why is that not written in the examiner's letter?
As a conclusion, I don't believe DP is the excepted (or the only excepted) solution here, and don't take it for granted that you failed.
Same "no single, only native nano" here.
DeleteLet's see how many people like us here.
On the other hand, wouldn't it be highly unfair not to punish this mistake severly?
DeleteOf course, it is a trap, but once you see this trap, the exam goes into a completely different direction. I saw that nanofibres alone are not enough, hence went crazy looking for something else. I would consider it unfair to subtract just a few marks, as some suggested, becuase the trap is somewhat hidden. At the end of the day, the claim is not novel over D1.
I persistely believes that DP is wrong here, and that nano is novel over D1, which by itself does not discloses nanofibres of cellulose, only fibres of cellulose. Regarding the meaning of cellulose (implying, not implying nanofibres), the application provides contradictory information, and such contradictory information cannot be seen and used as a complement to D1.
DeleteWhat is contradictory in "[41] Cellulose consists of cellulose nanofibres of about 25 nm in diameter."
DeleteDoesnt get much clearer imo.
I don't think you failed. I think both your version and a narrower version (single/loosened/pore size) might be accepted in the end. The aim of paper B is not to spend hours to make a claim novel. All past papers had only minor, obvious corrections. Adding the feature ''native'' was in that vein as there were many passages strongly highlighting the difference between synthetic and non-synthetic fibres in each of D1, D2 and D3. However, the bit about cellulose and nanofibres is one sentence among 30 pages and looks more like something that they failed to spot as confusing. It is just not possible that a single detail like that will make you fail paper B for non-novelty (paper A is another story). Plus the fact mentioned by many about the Search Report just does not make sense. Conclusion: not adding single/loosened to claim 1 would maybe not make it novel; however, it would be granted by the examiner. Granted means full marks :)
DeleteI think [41] of the application is irrelevant. Relevant is the communication according to which “cellulose acetate nanofibers” anticipates “cellulose fibres” (claim 1) as well as “cellulose nanofibers” (claim 3). If, within the logic of the paper, it was common general knowledge that “cellulose consists of [bonded] cellulose nanofibers”, as suggested in [41], then claim 3 also would have been objected to as not being novel in view of D1 that discloses a filter layer made of cellulose. In other words, “bonded cellulose nanofibers” does not anticipate “cellulose nanofibers” in the sense of claim 3.
DeleteI agree with Simon. There was no novelty objection against claim 3 using D1. We as candidates must be able to rely on the given information... The inconsistency in the english version (consists of/made of) is just the tip of the ice berg.
DeleteThis is Commander Data, Second Officer of the USS Enterprise, reporting in. Two years ago, the Supervisory Board entrusted me with the task of scrutinizing the Biodegradable Face Mask Paper B designated for the EQE 2024. This responsibility arose when our Captain, a distinguished member of the Examination Committee, failed to conquer it within the designated timeframe. In response, the Board of Examiners contemplated devising an alternative examination for Paper B 2024.
ReplyDeleteMy directive was clear – to determine whether the complexity of this paper warranted the creation of a new one. I approached this challenge with the precision and efficiency expected of a military officer. The outcome of my analysis is as follows: the task posed no significant challenge, and I successfully solved it in a mere 2.48 seconds.
Consequently, the board is content with the existing Paper B for the 2024 EQE, and no further examinations are deemed necessary. It is worth noting that my experience in handling such matters has proven invaluable.
On a tangential note, during the pandemic, I was granted exemption from wearing a mask, except in Germany, where governmental regulations mandated the use of FFP2 masks. This requirement persisted despite the fact that, as an android, my respiratory functions are nominal, rendering the act of wearing a mask inconsequential.
Thanks, your comment made my day!
DeleteDitto :)
Delete👏👏👏
DeleteI hope you get 50 p just for this.
DeleteDear commander,
DeletePlease confirm you haven't been involved in paper C.
For the sake of our future.
For any promotion which was supposed to happen but will probably not.
Commander, can you hear me?
Dear Civilians,
DeleteAs you embark on Paper C today, I extend my sincerest wishes for your success. In light of recent circumstances, allow me to shed some light on the situation surrounding Paper C and the absence of Commander Worf's involvement.
To start, Paper C was entrusted to Commander Worf, known for his prowess in strategic planning and execution. However, recent developments have found Commander Worf preoccupied with endeavors beyond the scope of his duty. It appears that Commander Worf has become engrossed in computer games and has unexpectedly found himself entangled in matters of the heart, having recently fallen in love with Diana.
As a result of these distractions, Commander Worf's attention has been diverted, leaving him with insufficient time to dedicate to the meticulous planning that Paper C demands. Consequently, in order to overcome paper C today, it is deemed sufficient to drive a few easy attacks.
In your pursuit of success in today's endeavor, please remain vigilant and thorough. Utilize the provided resources, ensuring that each paragraph is referenced to secure every available point.
Wishing you the best of luck in conquering Paper C and achieving your objectives.
Warm regards,
Commander Data
Also, chemically speaking (also I am not an expert so correct me if I am wrong), the statement cellulose is made of nanofibres is wrong. Cellulose fibres can be of different sizes:
ReplyDeletehttps://fr.wikipedia.org/wiki/Nanocellulose
Nothing in D1 disclose the use of nanofibres of cellulose, or nanocellulose. I don't think this paragraph [041] can be used to imply that D1 implicitely discloses nanofibres of cellulose.
Let me dream, don't wake me up
Deletecellulose fibres comprises nanofibres is misleading. Simply added native nanofibres is sufficient for novelty. However, adding "single" or pore size are also acceptable alternatives.
Yes I agree. Cellulose fibres can be of different sizes. D1 only mentioned cellulose fibers, impliying no specific size range. Nano fibers limits to a size in the nanometer range, so it is novel over D1. such a definition was missing in the text. Without it the paper was very unclear.
DeleteAlso, I considered basing the OTP on biodegradability. After all, the client letter "strongly stressed" that this was important. But in the very next sentence or so, the client said something to the effect that in the EU biodegradable is defined as such and such. This immediately flagged to me that in other jurisdictions, the definition could be different. And the skilled person would also know this. Which means there is not a universal definition. So, the Examiner was right that biodegradable will depend on the conditions, which are not defined in the application.
ReplyDeleteAlso, if I recall correctly, the client letter did not specify the conditions under which biodegradation is measured in EU. Is that at room temp? In a landfill? Underground, buried in soil? This was a second flag - that the conditions for determining biodegradability, for e.g., temperature, humidity, etc., need to be specified, and as they were not, we cannot say for sure that the nanofilters of the invention were *always* more biodegradable than cellulose acetate.
Thank you DP for providing your attempt, that is helpful.
ReplyDeleteTbh, I am still struggling how one should know that "native" is an actual and clear term that may be used in a claim.
...und im Deutschen ist es mit "nativ" auch nicht besser. Populärster Vertreter von "nativ" ist vermutlich das Olivenöl - für mehr hat es für mich als Nicht-Chemiker vom Verständnis her dann leider nicht gereicht.
I agree - the term isn't explained or defined at any point!
DeleteAgree with this
DeleteSame in French with "vierge" and "huile d'olive vierge" :) Definitely not art. 84 compliant to me
DeletePas d’accord. The application in [42] clearly defines “native” to mean “having a cellulose-I crystal structure”.
DeleteIf "individually loosened" brings patentability over D1
ReplyDeleteand "native" brings patentability over D2,
Why do we need "nano"fibre into claim 1?
how is compatible "ordinary cellulose already consists of cellulose nanofibres" with "it is a hard task to obtain nanofibres from cellulose"?
ReplyDeleteCan DP please provide certain argumentation?
When a skilled person stop interpreting the claim with a mind willing to understand and stick to the literal meaning which does not make technical sense
DeleteWhat about the term "thin" (thin nonwoven layer) in the process claim? Is it a well-defined term? I replaced this with "thickness of 8μm", although this is clearly much more limiting.. Of course, have serious doubt if I got it right, as in my whole answer /Cau/
ReplyDeleteFor novelty, D1 as prior art document can only be completed with general knowledge of the skilled person, and the patent application, which is not even a prior art document, cannot be viewed as the general knowledge here. You cannot pick-up a sentence in the application to give D1 a certain interpretation. D1 alone says nothing about nanofibres, or cellulose being necessarily made of nanofibres.
ReplyDeleteThank you for this attempt.
ReplyDeleteI would say that claim 1 of DP is not inventive in view of D1, combined with D2 which prompts the skilled person to implement a nanofiltering layer.
It seems to me that one could not meet the inventive step criterion without at least three layers, which allows to consider without any doubt that D2 is the closest prior art for the following reasons :
With only one layer, D1 and D2 both concern biodegradable masks having at least one layer and both mention the problem of biodegradability and of filtering efficiency.
Starting from D1, one just has to shorten and/or separate the native cellulose fibers to form the nanofiltering layer of D2 so as to increase the filtering efficiency, for example by grinding.
Starting from D2, one would have to completely change the nature of the filtering layer, which seems to allow concluding that D1 is the closest prior art.
Starting from D1, the skilled person was prompted by D2 to implement nanofibers in order to increase the filtering efficiency and to avoid chemically transformed cellulose. Hence, the skilled person would have tried and arrived to claim 1 of DP by forming shortened or separated native cellulose nanofibres. The improved mechanical properties would have been inevitably obtained.
totally agree!!!! Claim 1 of DP is not inventive in view of D1 and/or D2.
DeleteSecond try after the first one got lost in space:
ReplyDeleteI) I think including "made of native nanofibers" is a massive limitation that is not intended by the client (the client's letter was silent on "native"). In my view, "made of native nanofibers" would exclude any cellulose that has been treated in any form. [42] in my view does not provide a defintion of the term "native" but only mentions that cellulose-I crystal structure is native - so my understanding of "native" is "untreated". This means that we would not only exclude any solvent treatment (which would already be a big limitation) - but I think we would even exclude our own manufacturing method! Now, one may say that the description also says that "native cellulose nanofibres can be obtained" by the applicant's method but there is a considerable string of BoA caselaw that refuses to take the description into account for the purpose of patentability (only relevant for Art. 69) if the claim can have a meaningful technical interpretation on its own (e.g. T 169/20, T1127/16).
I wouldn't want to explain to a client that I made this kind of limitation without any indication from his side. Let alone that it would render the process claim non-unitary in my view.
II) If one uses "comprises" native nanofibers (basis for which I think was dependent on the language version) - even if they are individually loosened - this cannot be argued to bring any technical effect, unless one specifies the weight percent (for which there was no basis, was there?). Or would someone argue that 0.01% of individually loosened native nanofibers would solve any technical problem?
III) There was no indication that the solvent treatment led to 100% conversion of cellulose, was there? In the absence of such indication, I think one cannot just assume that this is the case (which I believe would also be in contrast to reality). This means that
a) cellulose acetate would still comprise a certain amount of native cellulose nanofibers and would thus take away novelty of a claim, which uses only "comprises native nanofibers"; and
b) the cellulose fibres of our own product cannot be assumed to consist of individually loosened native cellulose nanofibres (which is the wording in the German version) - while one may argue that it is still "made of" such nanofibres (which was the English version).
In view of this, I limited the claim to a three-layered FFP2 mask, because this covers at least the client's product (which a "consisting of" claim in my view would not -> German version)
But it is unclear what structural feature made the mask a FFP2 mask providing desirable filtration rate
DeleteBut in D2 they use cellulose acetate not cellulose, which is a different compound. Therefore, I think also the comprising term would establish novelty over D2.
DeleteI agree with you on that not defining a certain amount means that there could be only small amounts present which then in turn does not provide an effect. But from what I remembered from older exams where, for example, an angle of unequal 90 degree (which in my opinion includes 89.999 as well) was enough for an inventive step, I think they do not care about such specific argumentation.
@LG: I think the argumentation that cellulose acetate does not comprise native cellulose nanofibres requires a 100% conversion of cellulose to cellulose acetate, for which I think there was no basis.
DeleteYes, I think in real life you are right, but for the other non-chemists, if there is written in D2 "a solution of cellulose acetate at 2% by weight in trifluoroethanol (TFE) (caution:
Deletetoxic solvent!) was prepared." this should imply that this is a solution of only cellulose acetate which does not comprise the native cellulose. Otherwise it would be quite difficult for them to deal with this paper without certain knowledge.
Habe ich was verpasst, oder warum nicht einfach Anspruch 1 mit dem "bestehten aus" aus Anspruch 3 auf native C.-Nanofasern einschränken? Mein Anspruch lautet in etwa: "Biologisch abbaubare Wegwerf-Atemschutzmaske umfassend mindestens eine Filterschicht umfassend, wobei die mindestens eine Filterschicht aus nativen Cellulose-Nanofasern besteht." Damit ist man doch neu ggü. D1, die nicht aus den Nanofasern BESTEHT und auch ggü. D2, die nix natives offenbart...
ReplyDeleteBecause the filter layer also definitely contains gelatin (when manufactured using the claimed process).
DeleteJa, v.a. weil auch Anspruch 3 (dt. Version) als NEU ggü. D1 erachtet wurde, oder? Somit gesteht doch der Prüfer zu, dass D1 nicht offenbart, dass D1 Filterschichten offenbart, die aus nativen Cellulose-Nanofasern besteht...
DeleteI agree with you on that. I would find it quite hard if we cannot trust the novelty analysis of the report and would in turn need to perform an additional analysis in this short time.
DeleteI had problems with the combination of the "made of" in claim 3 with native because I didn't find basis for that. [022] says that the filter layer comprises nanofibers and [023] that the nanofibers are preferably native nanofibres. So I didn't see the "made of" in there for the combination native + nanofibres and went with "comprising"
DeleteI went with "comprising" (in German) as well, for the same reasons. In addition, I thought it is an unnecessary limitation. I had the feeling that normally they want us to get the broadest scope.
DeleteHab ich auch drübernachgedacht, aber dann wieder verworfen, weil in Absatz 41 steht:
Delete"[041] Cellulose besteht aus Cellulose-Nanofasern mit einem Durchmesser von rund
25 nm." und in Absatz 3 von D1 steht:
"[003] Gesichtsmasken aus Cellulosefasern aus Baumwolle, Flachs oder Hanf könnten
also ein potenzieller Ersatz für Gesichtsmasken aus synthetischen Polymeren sein." sowie Absatz 12:
"[012]Solche biologisch abbaubaren Hanf-Gesichtsmasken bestehen aus einer
einzelnen Schicht (Dicke 2 mm) aus 100 % Bio-Filterfilz, der aus komprimierten Hanf-
Cellulosefasern ohne chemische Behandlung hergestellt wird."
Mit anderen Worten: Die Masken bestehen aus Cellulosenanofasern. Hatte den gleichen Gedanken wie du, aber aus meiner Sicht geht es aufgrund dieser Verknüpfung nicht. Wird bei mir trotzdem nicht gereicht haben.
@Anna321: But why did they then draft claim 3 with the "bestehen aus" meaning consisting of (in the German version)? Totally makes no sense...
ReplyDeleteT1688/21: made of = consist of
DeleteSee paragraph 022 - there is a basis for comprises nanofibres there
DeleteThe EN version says 'made of' and there is case law that 'made of' is equivalent to 'consisting' (T1688/21). But this is very recent case law (June 2023) and I haven't found another. As a native English speaker, I do not consider 'made of' to mean the same as 'consisting'. It is much more similar to, if not exactly the same as, 'comprising'. I'd even be happy with 'consisting essentially of'. If it said 'made only of' that would be different. So we will have to see where case law goes with this.
DeleteAnyway, since my interpretation of claim 3 (in EN) seems to be different from the examiner's, I considered the limiting feature in claim 3 to be NANOfibres. Also, I don't believe the application actually disclosed a filter layer that did NOT contain gelatin. For e.g., there was no additional process step to remove the gelatin.
Guidelines https://www.epo.org/en/legal/guidelines-epc/2023/f_iv_4_20.html
Deleteif the wording "consist of" is used, then no further features are present in the apparatus/method/product apart from the ones following said wording. In particular, if a claim for a chemical compound refers to it as "consisting of components A, B and C" by their proportions expressed in percentages, the presence of any additional component is excluded and therefore the percentages must add up to 100% (see T 711/90).
@Anna, I was also thinking about the meaning of "made of". But it will be unfair to those know this case law T1688/21, if the Examiner interpret "made of" as "consisting essentially of"
DeleteBut this paper is supposed to have been written two years ago, when T1688/21 was not available. The decision is dated 30 June 2023. Can the exam committee have really come to the conclusion based on no available case law that 'made of' means 'consisting', especially when it is not the case in usual English? Why not just say 'consisting' as they did in the DE version? Why make it harder for candidates taking the exam in English? There is simply no need for this confusion. If anyone fails because they construed made of as comprising, they should consider appealing. I know I will.
DeleteI think T1688/21 is not in the guidelines, so it's not binding in first instance proceedings. So even if one board decided this way, I think the examiner is allowed to interpret the term "made of" differently than in this decision. So I think this decision cannot serve as a basis for "made of" = "consists of".
DeleteHello Everyone,
ReplyDeleteI am back from reading the paper again.
https://link.epo.org/elearning/B_2024_EN
This time what catches my eyes are: nanofilter layer, FFP2 mask
Thus I believe the direction is defining: FFP2 mask comprising a filter layer with a pore size in the nanometer scale, wherein the filter layer comprises cellulose nanofibres of natural origin. (Heavy work in Art.123(2))
Compared to D2: better degradibility, better air permeability and better mechanical
Compared to D1: better filtration and better mechanical.
Of course, it's completely different from my answer. See you next year
Gelatin is not essential, it is common to all embodiment but it's not essential to the separation of nanofibres. In addition it's not inextricably linked with the nanofibre thus we can isolate the feature of 1%wt cellulose fibers (no intermediate generalisation)
ReplyDeleteOf course, I added gelatin. See you next year
I think it is essential, as you need the electrostatic charges for the filtering effect. I think DP is wrong in that they assume that the effect also arises without gelatine or the electrostatic charges.
DeleteThe coated is mentioned as: the invention further provides nanofibres coated with gelatine
DeleteEssential to the method indeed
DeleteThe technical feature of the process can be using milling instead of the complex Eletrospining method for simplification. It is a method step surprising discovered by the applicant, thus not obvious.
DeleteOr instead of the toxic chemical treatment...
DeleteThe model answer propose the following:
ReplyDeleteDistinguishing feature over D1: “individually loosened”, technical effect/advantage high filtration capacity, [036], with enhanced mechanical properties, in particular air permeability [037], client’s letter 2nd paragraph.
However, paragraph 036 does not teach that individually loosened fibres improved filtration capacity. In fact, paragraph 036 does not relate to individually loosened fibres.
You are right and this is true in the French version of the paper also. First and only occurrence of "Individually loosen" is in paragraph [042] which does not seem particularly related to what is stated in [036] and [037].
DeleteIt seems to me that several different solutions will be accepted here, for both the product and the method claims, and maybe different amount of points will be allocated based on the merits of each of the solution. Then, the reasoning of the candidates and their problem-solution approaches (and their consistency with their amended claims) will be evaluated.
Don't forget that in B Paper the claims are only granted up to 30points, and here are two independent claims so maybe 10points for each and 10 more points for the dependent claims. Then 10-20points for 123(2) / Clarity and unity matters and the rest for the novelty (less than 8 points this year I think) and inventive step (at least 40points this year since two approaches are excepted given that there is two independent).
I agree. It seems the effect is only achieved if both features are present individually loosened and native. But the table of the client does not support that. It only refers to the biodegradable fibers according to the invention.
DeleteI completely ran out of time for the second PSA. That’s so frustrating, that they’ll probably allocate a lot of points to the end of the paper, where many people may have been out of time.
ReplyDeleteI have a very basic question here, as a Non-chemist
ReplyDeleteIs cellulose the same thing to cellulose fibres?
For me, the cellulose is a compound which cellulose fibres is a material consisting of cellulose. Thus they are not the same. Similar understanding can be seen in Wikipedia of "vegetarian fibres".
Then, cellulose nanofibres is a special type of fibres with nanometer-scale of diameter which is also consist of cellulose.
The fact is that nanofibres is a special fibres (polymer) consist of cellulose.
[41] stating cellulose fibres consist of cellulose nanofibre， sounds to me like “graphite” consist of "graphene sheets". This completely makes no technical sense since they are different materials with different crystal structures and different properties.
That’s irrelevant for the paper in my opinion. There is no novelty objection against claim 3 using D1 (or D3). Thus, it is a “fact” that claim 3 is novel in view of D1. If D1 does not disclose a filter layer “made of cellulose nanofibers” as defined in claim 3 (“consisting of” in the German version), then D1 also does not disclose a filter layer “made of native cellulose nanofibers”. The question is whether D1 discloses a filter layer “comprising native cellulose nanofibers” as disclosed in [22] and [23] of the application. Even if so, would such disclosure anticipate a filter layer “made/consisting of native cellulose nanofibers”? I don’t think so because “‘comprising’ does not provide per se an implicit basis for either ‘consisting of’ or ‘consisting essentially of’” (F-IV, 4.20). On the other hand, there seems to be no direct basis for a filter layer “made/consisting of native cellulose nanofibers” in the application. So, I ended up amending claim 1 based on [22], [23] and [51] to define a mask characterized in that the filter layer “comprises native cellulose nanofibers” and the native cellulose nanofibers are “coated with gelatin”.
DeleteAs candidates we are not supposed to question the facts given by the examiner, see Rule 21 (3) of the Implementing provisions to the Regulation on the EQE: “Candidates must accept the facts given in the examination paper and limit themselves to those facts. Whether and to what extent those facts are used is the responsibility of each candidate. Candidates must not use any special knowledge they may have of the technical field of the invention.”
By the way, I just noticed another inconsistency in the translation. The German version of claim 3 reads “wobei mindestens eine Filterschicht aus […] besteht”, whereas the English version reads “wherein THE at least one filter layer is made of […]”. So, the German version of claim 3 is unclear compared to the English version. I think I will file a complaint about this.
I insist that paragraph 40 "The production of nanofibres from cellulose is not a trivial task" brings novelty over D1.
DeleteNowhere in the proposed solution is the "protection against COVID-19" mentioned whereas par 16 (and D1, when arguing for its relevance as CPA) clearly refers to it. Client's letter pointed to FFP2 (or surgical masks, but which bring the unwanted ventilation/VE issue) as enabling this. Thus, the comment "why (claim 1) not limited to FFP2 ?" seems quite unfounded as it ensures protection. And even so, if not limiting to FFP2s in claim 1, shouldn't FFP2s be disclaimed from the manufacturing method claim then ?
ReplyDeleteIf adjusted to the product of claim 1, the patentability of the method claim could be argued from GL F-IV-3.8 and GL G-VII-13 (novelty/IS of a product wrt novelty/IS of its manufacturing, if it inevitably leads to said product).
Where I can find who are the members of the examination committee for paper B?
ReplyDeleteMaybe contact the committee directly?
Deletehttps://link.epo.org/elearning/SB_EB_EC_ES_Members_website_status_Jan_2024
@Ned Ludd, so interesting to learn that they have a back up version if the intended one leaked out. How do they monitor this? Do you think this is the case this year? That we got a "non-finished" version from the pipeline? That would explain not so thought-through paper?! Really curious if this is the case!
DeleteThat was just an example. The committee members are a small cog in a giant machine. The online aspect and preventing cheating plays a huge role. It is already very difficult to find people to make and mark the exams. They are all colleagues trying to do the best they can. They are not trying to fail people. As a tutor, I am very unhappy with the current trends in the exams, but there are official channels to complain. We are completely dependent on all the volunteers. If we scare them off, we will destroy our own system. Or only have an exam once every 2 years. Be upset and critical of the system, but not the individuals. Many of them use their spare time to work on the exams,or to make mock exams.
DeleteWell, it is obvious that the current system does not work and needs to be destroyed.
DeleteI hope that volunteers refuse to correct paper B.
We cannot and should not be punished just because the examination committee is incompetent to provide and exam in line with the fit to practice principle.
@Bob. So, you will definitely volunteer for one of the committees after you have passed? The notice is published on the EPO EQE page each year:
Deletehttps://link.epo.org/elearning/Notice_EB_Recruitment%20new%20ECS_EN_2023.pdf
We will have also soon have a new system.
The Examination Committees mainly do the marking, so they don't deserve to be personally targeted. And I don't see how refusing to mark will help - everyone will get a failing grade. Or they will take 12 months to mark everything.
I wrote native in the claim 1 but it seemed too much unclear too me and I limitated more.
ReplyDeleteThank you Nico and Sander for your attempt at a solution. It was indeed an incredibly confusing paper.
ReplyDeleteI do not agree with your amendment to claim 1. The description explains that the nano fibres are isolated from cellulose, I.e. individually loosened, but then they are cast into a non-woven layer to make the filter layer of the mask. This is also in claim 11 as filed. The non woven layer is essentially a network of physically entangled nanofibers. In fact it has a pore size, which means there has to be a network with pores in between. In the mask the cellulose nanofibers are not in a singular state or individually loosened, but they are entangled with one another to form pores. At least this is what I understand from the description.
My second observation is that if the technical effect over D2 is the mask being biodegrade, then the solution of using native, in the sense of plant based or natural, cellulose fibers is obvious over D1, which suggests using natural cellulose fibers like cotton or hemp. I believe the technical effect had to be something relating to the improved mechanical properties of the cellulose nanofibers in their native state and retaining their native cellulole-I crystal structure, see [42]. Mechanical properties included air permeability which is related to user comfort, see [37]. This would make sense with the provision of the post filed data.
Anyway, seeing that everyone understood the description differently certainly confirms that the paper was very unclear.
After several days of thinking, I think that I finally have the solution (or maybe).
ReplyDeleteClaim :
Biodegradable disposable respiratory face mask comprising at least one filter layer comprising native cellulose fibres, wherein the cellulose fibres are derived from papermaking waste residues from plant fibres by mechanical milling using grinding balls.
1) See the guidelines 4.12.1.
The claimed product have different properties from the products known from the prior art.
This is also why the document D4 was provided. D4 is only a proof (with the known method Behrens and Krokovski) that the properties of the cellulose fibres are different compared to D2 about ventilation.
2) D1 as CPA (mask and plant fibres). Then the reasoning about inventive step seems more "logical". For example, with D1, the skilled person can't reach the invention of claim 1 because it's suggested in D1 to improve the antiviral efficiency with a chemical substance (not mechanically).
Similar reasoning with D2 because D2 is obtained by chemical treatment of cellulose using hazardous chemicals comprising chlorine for the biodegradable property.
Similar reasoning with D3 because D3 is about chemical treatment of cellulose.
2) Finally it'd be a combination of the proposed claims (and some words from the description) by the client without the technical feature "casting into a thin nonwoven layer by melt-blowing or spunbonding". It was indicated in the description that the feature "casting into [...]" was optional. So for the amendment part, the test described in the guidelines H-V, 3.2.1 and 3.1 can apply.
3) "In a surprising way", the mechanical milling using grinding balls was not in claim 9 as filed.
4) The client's wish was to have a single independent claim because he removed claim 11. Also with the new claim 1, the claim 11 as filed becomes unnecessary.
After several days of thinking :-)
The product by process features are not a good idea. Especially, there are structural features to replace them with.
DeleteTo Anonymous: No, see the paragraph [048]: we have surprisingly discovered that native cellulose nanofibres can be obtained from our papermaking waste residues by a simple mechanical milling technique.
DeleteBut what is the benefit of the prod by process feature?
DeleteTo Anonymous: To improve the properties of biodegradability, filtration and ventilation without chemical treatment.
DeleteIndividuall loosened fiber! No way, I wouldn't even have spotted it in a day, too unclear.
ReplyDeleteI got complete wrong! What it was supposed to be a trap or something?
ReplyDeleteI wonder what the D4 was intended for, just to distract you form the solution?
ReplyDeleteThis is my first year sitting all A, B, C and D. I am really unlucky because all papers this year are the most difficult "of all time".
ReplyDeleteMy solution to paper B is totally gone crazy: I added "gelatin" & Claim 5, 6, and 7 (three layers) into Claim 1. My amended claim 1 look very long. I feel so helpless now because I have done at least 7 year past B papers but still ended up with a deviating solution. How can paper B become so unpredicable?
Why does EQE try to trick people like this? Is it fair?
It has been a few days after the B exam. During these days, I am trying to work out an possible solution. But I failed, I still cannot see the intention of the Examiner.
ReplyDelete
My answer was simply specifying that the"filter layer comprises cellulose fibers which are native native cellulose nanofibres.
Now, I simply wants to discuss what hints in the exam material led me to this solution.
First, the Applicant specified that they wants a solid protection on FFP2 mask comprising nanofilter layer which is made of cellulose fibres from hemp. They also wants to stop the competitor from producing similar products, a specific example of the FFP2 from other cellulose fibres source was given.
This solid protection reads to me as the narrowest protection. I SHOULD definitely define smth broader than this one.
Okay, then to cover the similar products. What is similar products? In my understanding, surgical mask, FFP3 mask are all included, I mean, it appears that all of the degradable mask can against Covid should be included. So, the limitation of FFP2 appears not that suitable.
The other cellulose source are specifically mentioned here. So from hemp should not be used.
Then the point goes into "nanofilter layer" to me.
At the same time, the applicant refers to distinguishing our invention form D1 and D2, he/she provides the amended claims. Which amended the claim as "made of cellulose nanofibres from hemp". Trusting the inventor from the technical perspect, I believed that this amended claim is 100% different from D1 and D2.
So what I need to do is to check whether it fits the desire of the inventor. Then, "made of" means "consisting of" (T1688/21), thus cannot be used, "from hemp" cannot be used since similar product needs to be protected. These two features should be removed definitely.
These two features are disclosed in D1, the applicant believes the claim is novel over D1 => nanofibres are distinguishing from D1.(novelty to D1 solved)
This is why it never occur to me that nanofibre may not be novel to D1.
This feature are not disclosed in D2, nanofibres is disclosed in D2.Removing these feature => not novel over D2. I need to find another feature novel over D2.
The applicant discusses a lot with respect to D2, talking about the air permeability result from good mechanical properties. This is obvious the technical feature, they even provide post - evidence to support it. (It reads to me like the specific reason to find the distinguishing feature producing this effect). And the evidence and D4 reads like an invitation to formulate the IS argument based on this aspect.
Then I go back to the description, found that: this is because of "native crystal type-I structure". From here, the "native" sounds like a term has known meaning in chemistry, since it is used to describe crystal structure.
The first idea is to limit the claim as "Comprising cellulose nanofibres with a native crystal type-I structure".
The next step is to find the basis. Then you will find out the detailed description describes this special nanofibres as "native cellulose nanofibres". This sound like a very neat term. Like I said above "native crystal type I structure" makes me believe that "native " is a known term
Then I will consider the basis for broadest scope of "comprising native cellulose nanofibres" and you can definitely find the basis on para 21 and 22.
I also consider the nanofilter layer limitation. But I didn't use it since:
1 it is disclosed with the FFP2 mask, including FFP2 means excluding similar product "surgical mask".
2. The applicant would like to protect "nanofilter layer" by limiting as "nanofibres". This reads like a implication that the layer comprises nanofibres = nanofilter layer. No description against this understanding (Smth like, the nanofibres needs to be
spreaded carefully to form a network of nanosize).
DeleteIn this stage, I ticked in my mind,
novel over D1, ok (nanofibres)
Novel over D2, ok (native)
Inventive over D2 ok (better air permeability, no hint of using native nanofibre)
Inventive over D2+D1 (ok, no hint to increae air permeability, even to combine, the compacted fibres layer in D1 is not suitable. Using cellulose of nature origin is technical barried since D2 only knows to obtain nanofibre with chemical treatment which cannot obtain native nanofibre.(the milling step is found by surprising, no commonly known method to obtain native nanofibres))
So far, I have a broadest claim, the basis and the arguments. I believe my logic chain is quite completed and the required amount of logic thinking is sufficient.
I spotted the inconsistency by repalcing "made of" and "from hemp". I also avoided another trap of the applicant's opinion about biodegradable. (I thought 3 traps are enough )
If this is actually another trap in the "individual loosened" or other novelty with respect to D1. I will only say that:"I surrended, I can't escape this room"
I just post this to tell other candidates (of course to myself) who arrive at this solution and feel insecure or regret that: "we did all the required logical thinking even if it's not the correct solution. It's only unfortunately that we didn't tune our brain to the Examiner's chanel"
DeleteThis was exactly my thinking too!
DeleteThe paper is on the EQE compendium.
ReplyDeleteIf you are looking for the English version: that is on the German page!:
https://www.epo.org/de/learning/professional-hub/european-qualifying-examination-eqe/compendium/paper-b
Paper B (auf Englisch)
Printable parts (auf Englisch)