Many candidates waste time perfecting and double-checking each legal basis. This is a poor strategy - a lot of marks are also available for correctly solving the legal problems, for explaining (arguing) how you have applied the law, and for the legal advice part. In many cases, an alternative will be accepted, even if it is a "lower" legal source.
It is much more efficient to understand the basic principles of what is required and what is typically accepted, and then be pragmatic. You should then note the best citations you find as you consult your notes and books when answering. If you think you are missing something, make a note and come back at the end if you have time left.
(1) Recognise and note expected citations: although different sources may be cited (and are always considered for marks), the markers are mainly looking for references to the documents listed in IPREE Rule 2 & 22(1)
(latest version:
OJEPO 2019, SE2 - see below for the syllabus provisions). Make sure you are familiar with the contents of these resources.
(2) Recognise and note the most important citations: hierarchically, Articles, Rules, & G-decisions are the most important, and the most likely to get marks. Whenever you notice one of these, ALWAYS note it next to the argument being made.
(3) Learn the most frequently required provisions by heart: if you can cite these without looking them up, you can quickly score marks. These are the most frequent subjects of the legal questions, and can be found in the
D Examiner's Reports of the last 10 years. Additional tip: tab these provisions in your reference books as there is a good chance you will need them.
- EPC: A.14, R.3, R.6, R.157(2) | A.54(2), A.54(3) | A.65 | A.76, R.36 | A.87(1), A.87(4) | A.99(1), A.100, R.76(2), R.84(2) | A.108 | A.114(1), A.114(2) | A.121, R.135 | A.122, R.136 | A.123(2) | A.133, R.151 | A.141, R.51(1) | R.40 | R.45 | R.70(1) | R.114 | R.116 | R.126(2) | R.131(4), R.134(1) | R.137(5) | R.139 | Rfees 2(1)
- Euro-PCT: A.153(7) | R.159(1), R.160 | R.164
- PC: A.4C
- PCT: A.8(1), R.4.10(a) | A.11(1) | R.19 | R.54bis | R.80.2, R.80.5 | R.90 | R.90bis
(4) Note the sources actually used: your answer should be explaining to the marker how you get to your conclusions. So if you apply principles from any "lower" resource such as EPO Guidelines, Case Law, OJEPO etc, cite any relevant Article, Rules, BoA decisions, AND the source reference.
(5) Note the legal principle that you are applying: in general, rules are required more often than Articles - this is because they implement the legal principles found in the Articles. "Empty Articles", such as A.80 EPC or A.120 EPC are not required for full marks.
(6) Stop citing when the number of citations matches the number of marks: as a general rule of thumb, a statement is required with a supporting legal basis citation for each mark. So an 8 mark question requires approx. 8 citations for full marks.
(7) Cite alternative sources and unexpected documents when relevant: if you have nothing better quickly available, cite it. The marker will consider it, and use discretion. For example, a Guideline reference summarising a BoA decision is usually accepted instead the decision number. Using an exact word or phrase from a legal provision or case law (such as "accompanying person") may also be accepted as proof of the correct legal basis.
(
8) Be aware that many PCT resources are not expected: the only PCT Guideline expected is GL/PCT-EPO (added in 2017 to IPREE Rule 22(1)). EQE 2019 was the first D Paper where a citation was expected for full marks. Unfortunately, these EPO-PCT Guidelines are not sufficient on their own for preparation or answering at the Exam - it is not complete (it does not cover EP entry at all), and in many sections, it just refers to parts of other documents. You should still know this document in detail - it contains relevant information about EPO policies under PCT, and identifies further PCT-related subjects, such as PCT-Direct or PPH, which may be asked in the D Paper.
(
9) ... but still use the other PCT resources to answer questions: and cite when relevant. Applicant's Guide AG-IP & AG-NP and Euro-PCT Guide (EPG) are much more useful for studying and answering at the Exam. But, when answering with these "alternative sources", cite
any relevant Article, Rules, BoA decisions, as well as the
source actually used to answer.
(10) leave a comment below with your tip #10
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