e-EQE 2021: Mock2 - D2 Exam - My methodology & solution

Update 26 Feb 22: epi link updated.

Thanks to epi for the Mock2 exams and model solutions - they may not be perfect, but I know how much work it is to make these materials.

• During my first attempt at an e-EQE D2 in Mock1, I tried it mainly on paper. This time, for Mock2, I tried to use the copy/paste much more: for all the things I normally highlight, I just copied the whole paragraphs to the top of my answer instead. I also copy/pasted parts of the answer that were similar in structure and wording.
• My answer was made in Wordpad, which is similar to the Lockdown Browser answer tab. It is a mess, but that is what a real answer looks like 😊. 
• I also did not finish in the allotted time, but I was also looking at the Methodology. The EQE 2021 D2 will be shorter than this.

General tips on D2

• See here for a presentation about how to approach D2
• D2 is the most open-ended part of EQE: there is a "golden" solution they are looking for, but very few candidates find it, and it is not required for high marks
• the marks per question are not given because they decide after the exam what the weighting should be based on how the exam was made
• if few get to the end, then they give more marks for the situation-as-is. You cannot predict this when doing it, so push yourself to get as far as possible - there are a lot of marks for improving the clients position.
• It is normal to have no idea of the answer when you start D2. Just work through the info as quickly as possible - once you know the patentability of all the claims (and unclaimed subject matter), it will start to fall into place.
• Your answer is marked as a whole, so it does not matter where you answer the questions. But make sure you answer them - that is where the marks are.
• They have a marking sheet of statements that they want to see. This marking sheet is the basis for the answer in the Examiners' Report = minimum needed for full marks. Typically it is about 1 mark per sentence.
• There are no negative marks - you just lose time by going into great detail about "side-issues"
• Anything you add to the facts given by applying knowledge is ANALYSIS and worth marks. Always include in your answer - if not sure where to put it, put under Initial Analysis
• They like to ask about non-written disclosures. You need to deal with them like you would in opposition, not examination.
• On D2, you need to have a solid analysis of: what will happen to the applications, validity of priority, which claims are novel and inventive, and what will be granted. That part should be same for most candidates. 
• Then translate it to the business world of the client - "you cannot make X because it is a species of  etc.". Address the client like a real client - "EP1 when granted and validated will give no protection in the US". Explain your reasoning - that gets marks.
• You do not need to explain legal terms like prior right, genus/species etc, A.54(2) prior art, A.54(3) art, A.123(2) extension. 
• Then identify the improvements that you can make - that will vary as not everyone will see everything. But you get marks for explaining what each piece is, and what it can do for the client. Explain your reasoning - that gets marks.
• Then you try and use the pieces to improve the clients business and/or attack any competitors - for marks, it does not matter exactly what you suggest. Some options may be equivalent in this case. Explain your reasoning - that gets marks.
• Even if your solution is not optimal, you will still get good marks. Don't waste a lot of time thinking the best strategy - make sure you write down at least one strategy. Unless otherwise stated, you have unlimited resources:
• I suggest filing 99 divisionals today because .... 
• You are infringing in BE - stop production immediately because ....
• If in doubt about subsequent filings, file one or more PCT applications  

Methodology: annotated exam explaining how I read it, and my electronic answer

• 1) Open each page (expected 3 - 5 pages) in a separate tab for extracting dates to timelines, key facts for overviews and copying important paragraphs with key words or phrases.
• If helpful, use (coloured) tabs on top edge of your monitor (P1, P2, P3/Questions). 
• Do NOT open more than 10 tabs as this crashes the browser.
• 2) Read questions first in last tab so that you know what you need to address in your answer. You are looking for clues to key legal issues, key rights, important countries, and main competitors. 
• 3) Copy questions into answer to ensure you answer each question (marks are frequently lost on D2 by not answering the questions) and each part of question. Be explicit about products, countries and parties. I made them red so they would stand out.
• 4) Make a TO DO List on paper for things not to forget. I also made a section at the top of my answer - when I read something unusual, or I did not know what to do with, I copied the paragraph number and that sentence (or the whole paragraph) to the top of my answer (don't make it nicer than it needs to be)
• 5) Add header INITIAL ANALYSIS to answer. Put in here any legal analysis made while considering facts from exam as that will get marks - for example, filings outside 12m priority year, likely publication dates (18m), legal status of applications, period for remedies expired etc. Answer is marked as a whole, so it is not necessary to have arguments fully grouped together. Don't go into great details speculating as you do not know what is relevant. These are pieces that you will need later, but you do not know exactly where they should go.
• 6) Read in assignment tab as this allows temporary selection of text so that you do not lose your place when copying facts/dates between screen and paper. Read each paragraph, sentence by sentence - note dates in a timeline or timeline-table. Also make a note of relevant facts either in your answer or on paper. These are just notes - note paragraph numbers so you can go back for details.

CLICK BELOW FOR MORE DETAILS (including comments on epi solution)

• 7) Two main types of overview tool - a simple timeline (similar to DI) + application/patent overviews + possible A.54(2) overviews; or a combined timeline-table. I used a combined timeline-table, with brief notes about the disclosures/claims, and included summaries in my answer about what was disclosed. I found this the easiest as my handwriting is not that great ;-). It is also already part of my answer, so it is easy to add any analysis, and I like to give the claims numbers. Notes made on paper should be brief as they get no marks - main goal is to sort information from exam order into a more logical order for patentability analysis. Refer to paragraph numbers. Use abbreviations in your overview. Give the claims numbers.
• 8) For all applications/patents, check whether it was published and add to timeline. If not given explicitly, you should be able to work it out (published if pending at 18m).
• 9) For every claim, analyse whether priority is valid, and thus effective dates. Add to your answer under Q.1 (almost always) and note the effective dates for the claims in your timeline. Note earliest application filed by anyone for each invention. If there is unclaimed subject-matter either make a note to analyse it later (if it is relevant), or include in analysis as well. 
• 10) The other pieces you will need are novelty and inventive step of each claim. Combined with procedural status and legal knowledge, you can predict who will get what rights and where based upon the situation-as-is (what will happen if you do not take any actions). The impact on sales/manufacturing of each product can also be predicted. A right on a genus can block all species. A right on a species can only block the same species. This is the detail needed for Q.A (status / current situation)
• 11) Open assignment preview side-by-side and view relevant paragraphs while answering. Not zoomable, so may need to be scrolled. You don't need complete sentences - answers can be given bullet-style to reduce scrolling. Use abbreviations - e.g. SK, OE, IN, DK in answer.
• 12) While answering Q.A, you will notice actions you can take to improve the clients business and/or attack the competitors business. These should be detailed under Q. B, C, or D in your answer, but you could already make a note there so you don't forget to deal with it. Also consider filing new applications preferably claiming priority and/or claiming unclaimed subject matter. Licensing and cross-licensing are usually relevant. 
• 13) For each action, you can predict whether it will be successful and how it changes the situation described under Q.1. This improved situation is detailed under Q.B, C, D in your answer, being specific about the impacts on manuf/sales of particular products in particular countries.

Comments on Mock2 D2

• It was a very old style exam, based on D2 1994. 
• I saw a lot of people complain it was not a "classic format" and that he questions were "different" or "vague". 
• that is the wrong approach - every exam can be different in style. These are not fixed. If it looks different, don't worry - underneath it will have the same familiar elements.
• they used to ask entitlement all the time and secrecy agreements. But that has been coming back a little, and this situation can happen in real-life. 
•  I could not finish in the 3 hours because I was not sure what to do with all the pieces. 
• You are not expected to know exact details of national procedures.

Comments on epi solution

• I don't agree with the epi solution of forcing the client and his researcher to work together after he stole his inventions and breached the secrecy agreements. This did not seem realistic to me.
• I was trying to find some way to divide the rights, so I suggested a partial transfer of priority right (only for one invention), even though I know that this is a disputed area. But it did solve the problem and moved me through my answer to other marks. And I think it would have been accepted for at least some marks.
• Other suggested forcing the researcher to assign all his inventions. This is possible as you can agree anything in a contract. It might seem unfair, but he has been disclosing secret information. Again, it did solve the problem and moved you through the answer to other marks. I think it would have been accepted for at least some marks.
• I don't think many realised how long entitlement can take - another way to deal with it is to suggest accelerating national proceedings. I have no idea if it is possible, but you are not being tested on on details of national procedures, and it gets you through to the other marks. Assume that general actions, like 3rd-party observations, invalidity, post-grant-opposition, entitlement, acceleration etc. are available world-wide in national proceedings. Traditionally, you also state - "I will check with a DK colleague or similar".
• The epi solution suggests they want to see a letter - that is not true for the last 15 years. You can answer bullet style which is much more efficient, and it is easier for them to mark. For example, this is someone who followed one of the courses that I made and who scored 80 marks on D in 2015