Our attempt at e-EQE Paper A 2021 - Coated engine components
Here is our quick first attempt at the claims (ignoring formal aspects).
Jelle, Nico, Sander, Roel and Jessica
Claims
1. A coated engine component (10, 20) comprising a substrate (11, 21) coated with a ceramic oxide layer (13, 23),
wherein the substrate (11, 21) is made of a superalloy,
wherein the ceramic oxide is a metal oxide that melts at a temperature higher than 1600°C,
wherein the ceramic oxide layer has a thickness of at least 25 micrometre,
wherein the ceramic oxide layer has a columnar microstructure comprising columns with spaces (15a, 15b, 25) between the columns (14a, 14b, 14c, 24a, 24b), and
wherein the angle between the columns (14a, 14b, 14c, 24a, 24b) and the surface of the substrate (11, 21) is between 75 and 105 degrees.
2. The engine component (10, 20) according to claim 1, further comprising an adhesion layer (12, 22) between the substrate and the ceramic oxide layer, wherein the adhesion layer is a nickel or cobalt alloy containing 10-50 wt.% of aluminium and up to 25 wt.% of chromium or yttrium.
3. The engine component (10, 20) according to claim 2, wherein the adhesion layer (12, 22) has a thickness of 10-200 micrometres.
4. The engine component (10, 20) according to claim 1, wherein the ceramic oxide layer (13, 23) is arranged directly on the substrate.
5. The engine component (10, 20) according to any one of claims 1 to 4, wherein the ceramic oxide layer (13, 23) comprises zirconium oxide, aluminium oxide or a complex oxide with a pyrochlore structure, such as titanium oxide.
6. The engine component (10, 20) according to any one of claims 1 to 5, wherein the ceramic oxide layer (13, 23) has a maximum thickness of 2 millimetres.
7. The engine component (10, 20) according to any one of claims 1 to 6, wherein the engine component is a component of a gas turbine engine, such as a turbine blade, a lining of a combustion chamber or a lining of an exhaust section of the gas turbine engine, or a component of a rocket engine, such as a pump.
8. The engine component (10, 20) according to any one of claims 1 to 6, wherein the engine component is a hollow turbine blade (30) comprising one or more cooling holes (31a, 31b, 31c) through the coating and walls of the turbine blade.
9. A gas turbine engine comprising the engine component according to any one of claims 1 to 8.
10. A method of manufacturing a coated engine component according to any one of claims 1 to 8, comprising:
- providing an engine component comprising a superalloy substrate;
- using electron-beam evaporation, depositing the ceramic oxide layer on the engine component; and
- during the depositing, keeping the temperature of the engine component between 920-1050 C, or when the ceramic oxide layer comprises zirconium oxide, between 950-1000 C.
11. A method of manufacturing a coated engine component according to any one of claims 1 to 8, comprising:
- providing an engine component comprising a superalloy substrate;
- depositing the ceramic oxide layer on the engine component;
- machining the coating to form the columns in the ceramic oxide layer.
12. The method of claim 11, wherein the ceramic oxide layer is deposited using plasma spraying.
13. The method according to claim 11 or 12, wherein the machining step comprises using a laser to form the columnar structure.
14. The method according to claim 13, wherein the engine component is a hollow turbine blade, and wherein the method further comprises using the laser to drill through the coating and walls of the turbine blade to make one or more cooling holes in the turbine blade.
15. The method according to any one of claims 10 to 14, comprising:
- first depositing an adhesive layer on the substrate and then depositing the ceramic oxide layer on the adhesive layer; or
- directly depositing the ceramic oxide layer on the substrate.
Comments are welcome in any official EPO language, not just English. So, comments in German and French are also very welcome!
Thanks for this! Do you have any considerations of likely penalisation for including cl.2 and cl.4 embodiments in claim 1, as [OR] embodiments, with the adhesion layer being optional.
ReplyDeleteIt seemed like they solve different problems 1) reduced weight, 2) improved lifetime - but not both!
Hey ho. I am so in for a chance to pass based on this. I said certain an a surface of substrate. And wherin the adhesive is intermediate rhe surface and ceramic. Lsck of clarity probably for that. You just made my day. Now do b so I can stop feeling like a moron.
ReplyDeleteThank you DP!!!
Delete1.I´ve got "A coated engine component (10, 20) comprising a substrate (11, 21) and a ceramic oxide layer (13, 23) on the surface of the substrate (11, 21)", inspired by the clients letter and D1. In my opinion it cannot make a difference if one includes "on the surface", because the most exterior of the engine component is its surface. So this must be impicit in claim 1 of DP above. Furthermore, I thought that I could gather from dictionaries that "on", "sur" or "auf" does not necessarily mean that something is directly on something else.
Correspondingly in "substrate (11, 21) coated with a ceramic oxide layer (13, 23)" of claim 1 of DP obove the word "coated with" is also not only meant to be "directly coated with".
2.Why you put "the ceramic oxide is a metal oxide that melts at a temperature higher than 1600°C" in the claim 1, I do not really understand, because the component is suitable for use in this temperature range, at least this is what I remeber. So if the coating melts in this temerature range it is gone during the first use of the component in this temperature range and cant protect the component anymore in particular in further uses in this temperature range.
Whats your opinion about that?
Is the term "microstructure" clear? What is the definitive boundary between nanostructure, microstructure, structure? Could this be fatal without support somewhere defining it? I see EPO examiners complain about this all the time. I know just "structure" opens the door to a coating with bits missing in a coating worn away. But the prior art said the coating peeled off which seems a bit different.
ReplyDeleteThanks for your set of claims !
ReplyDeleteI've claimed only the coating for a superalloy instead of the coated engine component, but otherwise it's quite similar. You've made my day!
I did exactly like you and I feel like I won't pass...
DeleteThanks. Some people believe the bus embodiment was prior art. What are your views on this?
ReplyDeleteHi Jessica,
ReplyDeleteThank you for your analysis.
I agree with your proposed claim 1, except for one part: I included the limitation “the ceramic oxide is a metal oxide that melts at a temperature higher than 1600°C” by means of a “(suitable) for” statement at the beginning of claim 1 (Coated component for...). My thinking was that this is defines a limitation in accordance with the “mold for molten steel”-example/exception in the Guideines (in F-IV under clarity).
Hi SL, i agree with you here and did something similar myself.
DeleteI did too but not sure if correct
DeleteSame here. I didn't limit to "superalloy" in claim 1 either because it said that "turbines are frequently made from superalloys" in the preamble. Implying that they could be made of other materials. I thought the "suitable for" limitation would ensure novelty over the bus, because aluminium itself is not suitable for use in an engine at > 1600 degrees
DeleteI did the same, used it in the preamble
Deletesame here... just posted a question asking if this was correct..
DeleteSame Here.
DeleteSame here.
Delete[005]: "It has surprisingly been found that the protection of superalloys against high temperatures is just as good with the ceramic oxide layer having a columnar microstructure as with conventional ceramic oxide layers."
DeleteProtecting superalloys is an important part of the invention as presented in the introduction, and all embodiments also have a superalloy substrate.
Jessica, thank you very much for your suggested solution. It helped me a lot to check my answer. Now, I would like to add my thoughts on the feature "wherein the ceramic oxide is a metal oxide that melts at a temperature higher than 1600°C" for discussion as well. I used the 1600°C as a "suitable for" statement referring to the coated engine component, namely "A coated engine component for engines with a combustion zone at a temperature of at least 1600°C". I had to think about this difference. In doing so, I noticed the following:
DeleteThe D1 shows all the features of your claim except for the feature "wherein the ceramic oxide layer has a columnar microstructure comprising columns with spaces (15a, 15b, 25) between the columns (14a, 14b, 14c, 24a, 24b), and wherein the angle between the columns (14a, 14b, 14c, 24a, 24b) and the surface of the substrate (11, 21) is between 75 and 105 degrees." However, this feature is shown by the motor component of the bus motor. Therefore, the skilled person could arrive at your claim by combining D1 and the motor component of the bus motor. Since your claim concerns an engine component, the skilled person would combine features of different engine components, i.e. component of D1 and component of the bus engine.
To prevent the skilled person from combining D1 with the bus engine, I have added the purpose statement "for engines with a combustion zone at a temperature of at least 1600°C". The skilled person knows that the component of the bus engine melts at temperatures of 1600°C and is therefore unsuitable for use with the claimed engine component, which is why he does not consider the component of the bus engine and does not combine it with D1.
Fantastic! I know I have made some errors but many of my claims are very similar to yours :)
ReplyDeleteI have noticed while looking through my script that I have made mistakes with the claim dependencies from when I added new claims in but forgot to alter the dependencies (sloppy, I know). Will this be heavily penalised when I have the correct feature but the dependency is obviously wrong? For instance, I have a dependent method claim accidentally dependent on an apparatus claim because I forgot to change the numbering of the dependencies *Facepalm* but the feature itself is a useful fallback position
Thank you DP! Could you comment on how you interpreted the part with the bus motor?
ReplyDeleteOnce you have decided that "the ceramic oxide is a metal oxide that melts at a temperature higher than 1600°C" and that this must be in claim 1, does the term "ceramic oxide" not become redundant? I replaced it with "metal oxide" throughout, as I thought that was clearer. e.g.: "comprising a substrate coated with a metal oxide layer comprising a metal oxide that melts at a temperature higher than 1600°C".
ReplyDeleteI did the same, saw no reason to use a term ceramic oxide that seemed to have multiple possible meanings. Thought there was a big hint that this was not the term to use in the claim somewhere (can't recall where) with it only being a term useful in the specific field.
DeleteThabk you ! I added 25 um to 2 mm. it will be too loud if not limited as said in the letter. Why we shouldn’t include it ?
ReplyDeleteHope it will not cost many marks...
I did get something similar but for claim 1, I left out 25um thickness. It is in my dependent claim. Will I get heavily penalised for this. Kicking myself for leaving this feature out.
ReplyDeleteI do have similar method claims to your proposal and similar dependent claims (probably lost a few marks here and there with clarity, dependencies etc...). Just hope that it is still enough to pass (or get 45 marks) without the 25um thickness in claim 1 but still fall back as a dependent claim. Would feel extremely gutted if I fail based on just that.
DeleteI also didn't have the 25um thickness in claim 1. I was pretty confused around the phrasing in the paper in the heat of the moment. Like you, I decided to add it as a dependent claim. I hope it will be enough to recover some marks but now not sure about it.
DeleteDidn't like this paper.
Is ok Claim 2?, It is very smilar to claim 2 od D2
ReplyDelete2. A turbine blade in accordance with claim 1 wherein the adhesion layer is a nickel or
cobalt alloy containing 10-50 wt.% of aluminium and up to 25 wt.% of chromium or
yttrium
Thanks a lot for sharing! My claim 1 is identical, except that I used "consisting" rather than comprising to exclude the presence of the adhesion layer wich would provide novelty and inventive step (reduced weight, same lifetime) vs D1. Based on the provided information in the paper, I can only conclude that the laser treatment in D1 would also lead to the same columnar structure as the laser treatment in the patent. Any thoughts?
ReplyDeleteHey guys, thanks so much! What are your (and everyone's) thoughts on claiming the coating for a superalloy of an engine part?
ReplyDeleteI was thinking of that too, but then went for the engine part...
Deletebut then i thoght by creating just the columns with spaces inbetween but without the substrate, which basically is the engine part, one would end up with a pile of columns...
I did that, and then had a quasi-independent claim for an engine part comprising a substrate and the coating of any preceding claim (paraphrasing)
ReplyDeleteHi Thanks for sharing, could we say for claim 1 in the preamble, an engine component suitable for engines that have a combustion zone temp higher than 6000oC? (Instead of defining the feature relating to the melting of the ceramic oxide at t> 6000oC as you have in claim 1?)
ReplyDeleteofc, the above is in addition to describing that the engine is coated with ceramic oxide and the other features as specified in claim 1 too...
Delete1600oC sry...
DeleteHello, yes I did the same thing as well. It was indicated in the client's letter explicitly that the ceramic oxide having a columnar structure only works for the engine components suitable for engines that have a combustion zone temp higher than 1600oC. I thought this was an essential feature.
DeleteThanks for the answer, pretty what I got. Although thoughts on a claim 1 just like that, but without spaces between the columns? I had something like columnar microstructure and maybe also 'comprising columns'. Do we need to specify spaces? Hopefully just a small -5 marks not a killer -20 marks.
ReplyDeleteI inserted the spaces on my second read because while briefly arguing the effects of the component in the description I realized that spaces were essentials for when the ceramic oxide melts. But maybe the column microstructure implies that columns (and thus spaces between them) are present
DeleteI did mention that the columnar microstructure had spaces in the summary section of the invention but not in claim 1 (!) - hope this doesn't cost too many marks...
DeleteBasis for this F-IV 4.13:
ReplyDeletehttps://www.epo.org/law-practice/legal-texts/html/guidelines/e/f_iv_4_13_1.htm
The letter read that the invention/ceramic oxide could only be used at T > 1600° C -- so any other embodiment in the prior art which does not have the features/ceramic oxide of claim 1 is not suitable "for engines that have a combustion zone temp higher than 6000" - so the statement should be limiting and define the essential nature of the feature
Same opinion here.
Deletesigh. I've got the following.
ReplyDelete1. A coated engine component made from a substrate for engines with a combustion zone at a temperature of at least 1600°C, (to overcome the bus motor and D2)
wherein the substrate is coated with a thermally insulating layer of ceramic oxide having a columnar microstructure perpendicular to a surface of
the substrate, and (to overcome D1)
further wherein the thermally insulting layer of ceramic oxide is at least 25 micrometers in thickness. (to overcome D2)
Was it necessary to specify the angles, superalloy, and columns and spaces?
Hello the client also indicated that the type of ceramic oxide layer is not important for the coating. And I did not understand the necessity of claim 4. Adhesion layer is optional, since claim 1 did not have that feature, it is already obvious that ceramic oxide will be on the substrate.
ReplyDeleteFor the method claims I added the thickness limitation as well for the steps depositing the ceramic oxide layer on the engine component as well. Additionally, I have added the zircon oxide option as a depended claim, it is was not inextricably linked to the other features. And the claim itself with the temp. range 920-1050 C with thicknesses of the ceramic layer will be enough for IS and Novelty of the claim.
Thanks for the answer. What do you think if we replace the feature of "wherein the ceramic oxide layer has a thickness of at least 25 micrometre" with "thermally insulated ceramic oxide layer"? And replacing the specific angel feature with "substantially perpendicular to the surface of the substrate", because the ceramic oxide layer has the limitation that it melts at least 1600 degrees, I think it is ok not to include the thickness of the layer and the skilled person can know which thickness is suitable.
ReplyDeleteI think thermally insulted may imply 25 micrometre but it did mention in the paper that anything below 25 micrometre would be insufficient.
Deletesubstantially perpendicular would be understood to mean perpendicular. there is no weighting to the word substantially in this case. I think perpendicular to the surface is fine - may lose a couple of marks for unnecessarily narrowing the claim because the angle of 75 to 105 is broader than 90degrees i.e. perpendicular.
I agree! The inventive step comes from the columnar structure, so it's acceptable to functionally define the thickness as being thermally insulating (if the component is being defined as suitable for use at at least 1600 deg). If inventive step comes from the thickness, I would have put the 25 micrometre feature in claim 1.
Delete@DP, do you agree?
substantially does not imply 90 degrees exactly though. This is going to be a point of contention I think
DeleteI was also confused about "substantially perpendicular" in D2. They would normally provide definitions for these sorts of things. They provided one for iron is a metal or a cow is a dairy animal. I thought specifying the angle would confer novelty.
Deletehttps://www.epo.org/law-practice/legal-texts/html/guidelines/e/f_iv_4_7_1.htm ;
DeleteF-IV, 4 7.1 Interpretation of terms such as "about", "approximately" or "substantially"
DeleteWhere terms such as "about" or "approximately" are applied to a particular value (e.g. "about 200°C" or "approximately 200°C") or to a range (e.g. "about x to approximately y"), the value or range is interpreted as being as accurate as the method used to measure it. If no error margins are specified in the application, the same principles described in G‑VI, 8.1, apply, i.e. the expression "about 200°C" is interpreted as having the same round-off as "200°C". If error margins are specified in the application, they must be used in the claims in place of the expression containing "about" or similar terms.
When terms such as "substantially" or "approximately" are applied to a structural unit of an apparatus (e.g. "a tray plate with a substantially circular circumference" or "a tray plate with an approximately curved base"), the expression containing the term "substantially" or "approximately" will be interpreted as a technical feature being produced within the technical tolerance of the method used to manufacture it (e.g. cutting a metal is much more accurate than cutting a plastic; or cutting with a CNC machine is more accurate than cutting by hand). In other words the expression "a tray plate with a substantially circular circumference" is interpreted as claiming the same technical feature as "a tray plate with a circular circumference"; in turn both expressions are considered as claiming any tray whose base the skilled person in the manufacturing field would consider as being circular.
Thx Anonymous March 05, 2021 5:03 am for citing that paragraph.
DeleteThe version you cited is from there Guidelines of March 2021, that you could access via "External Resources" during the exam, and that was unchanged compare to the Guidelines of November 2019 (in force on 31.10.2020), of November 2018 (in force on 31.10.2019, the alternative legal status for EQE 2021).
In the Guidelines version before that, November 2017 -not applicable for this exam, too old-, a different interpretation was presented. So, if you had too old material, you had the risk to answer wrongly: always make sure to bring up-to-date material to the exam!
The November 2017 version read:
G-IV, 4.7 Terms like "about" and "approximately"
Particular attention is required whenever the word "about" or similar terms such as "approximately" or "substantially" are used. Such a word may be applied, for example, to a particular value (e.g. "about 200°C"), to a range (e.g. "about x to about y") or to a structural unit of an apparatus (e.g. "a tray plate with a substantially circular circumference"). In each case, the examiner should use his judgment as to whether the meaning is sufficiently clear in the context of the application read as a whole, and having regard to the meaning a particular technical term qualified by such a word usually has in the field concerned. If such words mean that a certain effect or result can be obtained within a certain tolerance and the skilled person knows how to obtain the tolerance, then the use of such words may be acceptable. If, however, the use of such a word suggests that deviations are included which are larger than those accepted tolerances, then the wording becomes vague and undefined. In any case, the word can only be permitted if its presence does not prevent the invention from being unambiguously distinguished from the prior art with respect to novelty and inventive step.
NB: the use of "suspicious" or "special" terms or constructions is usually a hint that you may need to check the legal texts and, as far as claims interpretation and claims terms are concerned, the Guidelines, in particular F-IV "Clarity and interpretation of claims" and the special paragraph in G-VI, "Novelty". The Guidelines are sometimes surprising (see e.g., more on "substantially" in F-IV, 4.7.2 or numerical accuracy in G-VI, 8.1).
DeleteThanks for your answer, DP.
ReplyDeleteWhy did you include: "wherein the ceramic oxide is a metal oxide that melts at a temperature higher than 1600°C"? If the ceramic oxide melts, it wouldn't have the columnar microstructure anymore. It seems to me the comment about the temperature above 1600°C simply meant that the engine component needed to be part of an engine that is used at such a high temperature.
Wouter
I am also intrigued by your inclusion of this feature, for the same reasons as described above. Would be good to hear your reasoning DP
DeleteI drafted the same C1 including the spaces, but not the angle, I just added substantially perpendicular. In the description I added that "a column is considered to be substantially perpendicular if the angle between the column and the surface of the substrate is between 75 and 105°". Hopefully that is enough
ReplyDeleteProposed claim 1 is not inventive. The technical effect over D1 is achieved only with a metal oxide layer thickness lower than 2 mm.
ReplyDeleteWhat I meant by technical effect was the lower weight.
DeleteI would disagree with that. There was no indication that the thickness _must_ be lower than 2um to achieve the advantageous effect. Assuming an upper limitation as requirement to achieve the desired weight reduction is knowledge external to the Paper.
DeleteBut at least 25um was required, for novelty and as an essential feature.
It was specified that over 2 mm the device was too heavy.
Deletetoo heavy didnt matter.
Deletethe technical effect of the microstructure was to reduce stress on the engine component at hot temps.
no need to mention weight here.
No. Over D1 the it was specified that the properties were the same and that the only effect was to reduce weight when the adhesion layer was not present. D1 was the cpa
DeleteIt is a clear cut alternative. That was not suggested by Dr or d2
DeleteD1 is cpa. agreed.
Deleteit mentioned the lifetime is the same for columnar microstructure and the structure of D1. but there was no disclosure of reducing stress on the coated engine component in D1, because there was no columnar microstructure.
the objective technical problem is not how to ncrease lifetime, but rather how to reduce stress on the coating/coated engine component.
reducing weight is optional, and it mentioned it is useful to reduce weight if youre planning to use the engine component for aircrafts for example. Of course you would still be novel and inventive if you included the maximum thickness to be 2mm. but it would be narrower than what would be expected so would lose a couple of marks I would assume.
I thought that the reduced lifetime was linked to the stress and that they form only one effect
DeleteStill is a non obvious alternative that has the added bonus of being lighter.
DeleteI had the impression that in paper b, having an alternative is not sufficient. Especially in view of D2 disclosing columnar microstructure. Then claim 1 us obvious.
DeleteWell I am guessing you meant A but why not. It is in the guidelines so how can it not be okay. D1 suggests adhesive slides problem and d2 did not address problem at all and lacked thickness. D2 had the structure but what motivation is there to use a security layer for the base to solve the problem of stress and lifetime of the component when in use. D2 also suggests it can be removed
DeleteAgree, alternative can well be inventive. You will come to correct conclusion if executing problem&solution approach,
DeleteGuidelines G-VII, 5.2:
Delete"The expression "technical problem" is interpreted broadly; it does not necessarily imply that the technical solution is an improvement to the prior art. Thus the problem could be simply to seek an alternative to a known device or process which provides the same or similar effects or is more cost-effective"
What are we thinking re substantially perpendicular Vs specifying the angles? Novelty destroying without specifying angles or just a clarity objection...?
ReplyDeleteI don't think it should be a problem. Use of the term "substantial" is supported by the Guidelines, and is not limited to 90 degrees. I added the definition of 75 to 105 degrees in the description just to make sure
DeleteDid the same, added the specific degree in claim 2 and definition in description part
DeleteGuidelines F-IV, 4.7.1.
Delete"substantially perpendicular" would be consider to have the same meaning as "perpendicular" - see Guidelines F-IV, 4.7.1.
DeleteDefinitions of terms must be in the claim if you want to be clear. See Guidelines F-IV, 4.1:
"the meaning of the terms of a claim must, as far as possible, be clear for the person skilled in the art from the wording of the claim ALONE (see also F‑IV, 4.2)."
Deviating from the common meaning of a term is not allowed. See Guidelines F-IV, 4.2: "Each claim must be read giving the words the meaning and scope which they normally have in the relevant art, unless in particular cases the description gives the words a special meaning, by explicit definition or otherwise."
I specified the columnar microstructure but not the spaces. From the description I had the impression that the column and the spaces were inherent to the microstructure. What do you think?
ReplyDeleteThe thing is D2 had a columnar microstructures but the gaps were filled. I think you may have to specify spaces..
DeleteD2 explicitly mentioned gaps that can be filled. not must be filled.
DeleteNovelty over D2 was achieved with the layer thickness. Moreover filled up spaces are still spaces. In order for your theory to work claim 1 should mention empty spaces.
DeleteI agree with
DeleteAnonymous March 04, 2021 7:06 pm
I put the stacked layers as the distinguishing feature instead of the "25 micrometre" feature. I am not confident that the 25 micrometre is inventive over D2, as it is clearly stated in D2 that the machine can be used for producing "thicker" layer. I do not see why the skilled person would not have increased the thickness of the layer as this can be done without exercising any inventiveness, given that the disclosed method and machine could allow this.
ReplyDeleteSuch concern is even more obvious when I try to draft the method claim, as the electron beam method is completely disclosed in D2 except the thickness. On the other hand, the plasma + machining method is clearly novel and inventive.
I wish that I could get a pass...
I limjted the eb method to a layer with an adhesive and the thickness. Said d2 does not suggest those 2 and if turn d2 difference was also temp range for adhesive deposit. So not suggested in d1 then had plasma spray covering both
Deletefelt very frustrated.. I have done 10 B-papers and 13 A-papers and then read all of the examiner's reports carefully, but I still had no enough time to finish both papers properly. I also went for a wrong way for paper A by adding an adhesion layer in order to make claim 1 novel over D2. When I read the thickness of 25 micrometre is "preferred", I immediately put that feature into a dependent claim and never came back to consider it might be useful for the novelty+IS...after A and B, I guess I would do even worse on C...
ReplyDeleteI have sympathy for you.
DeleteHopefully you still get a pass or at lthe very least a compensable fail.
I'm sure the work you've done is not wasted time and you can only improve if things don't go your way. But I certainly hope it does.
I did the same Kate. I also read 25um thickness "preferred" and didn't even put the adhesion into claim 1. I hope they mark my method claims separately. Hope to pick up sufficient marks for at least compensable fail. Paper A this year has been really tough.
DeleteHi Jessica,
ReplyDeleteabout the two independent methods claim:
I thought only the second independent method claim 11 directed to machining should refer to the "engine component=hollow turbine blade"-embodiment - wasn't there an explicit mention in the client's letter? Perhaps I misread it during the exam.
Thanks!
What do we mean by substantially perpendicular, shouldn't the EPO provide this definition of this.
ReplyDeleteF-IV 4.7.1: “substantially 90” is no different from “90”
DeleteHi Jessica,
ReplyDeleteThanks for your answers. Still have following two questions
1)- I still believe the feature 'wherein the ceramic oxide layer (13, 23) has a maximum thickness of 2 millimetree' should be in claim 1.
In the letter, the client has mentioned that if adhesion layer is not used, then the lifetime is the same as of the system of D1/D2 (don't remember D1 or D2), but it has further advantages such as low weight (suitable for rocket engine etc.).
And in the next paragraph, it is mentioned that 2mm is required to keep the weight low.
If we don't add adhesion layer in claim 1, we need to have the feature of 2mm to achieve the effect of low weight. Otherwise I don't see the inventive step.
Can you comment on that please?
2)- One general question related to claim 7. I have claimed it differently.
For your claim set, it is 7)- A engine component is X, whereas I have claimed as
'An X wherein X comprising engine component'.
Are they equivalent/same?
Thanks,
Mohsin
Without the 2mm you still provide am alternative to D1 that has an added bonus effect. It is in the guidelines so how can it not be okay. D1 suggests adhesive solves problem and d2 did not address problem at all and lacked thickness. D2 had the structure but what motivation is there to use a security layer for the base to solve the problem of stress and lifetime of the component when in use. D2 also suggests it can be removed
Deleteand what is that added bonus effect? If I have understood correctly, the only bonus effect is light weight. Which requires 2mm feature.
DeleteI am talking only about D1, for D2 I think 25 is sufficient to create novelty.
bonus effect is aside the main point here, as you are aware a bonus effect cannot be used for the basis of inventive step alone. It is still an non-obvious alternative. You could aslo argue it is cheaper, easier to construct (as less steps needed) even though these are more real world based arguemnets i would still make them if it was in a response.
DeleteFor claim 10, would it be too limiting to include the following steps:
ReplyDeleteplacing the coomponent in a holder in de vacuum chamber
evacuating the chamber
these steps were described as required (also in D2)
No, in fact for electron-beam evaporation, it should be an essential feature. I did the same.
DeleteMe too.
DeleteAn would it be too limiting to combine the plasma spraying and laser machining step in one claim. With only plasma spraying it is not enabled how the columnar structure is achieved.....
ReplyDeleteThanks DP team, largely agree with claims, in claim 1 it is probably not meant to limit ceramic oxide to metal oxides as this only covers definition of D1, probably leaving workaround space for other turbine manufacturers (which may not use a metal oxide to insulate the substrate), so I guess only limitation to endure 1600 degrees needed to enter claim (for example in pre-amble or specifying melting point ceramic oxide), my 5 cents
ReplyDeleteMy claim 1 was virtually the same as this, only difference was the I didn't include the 1600 degree temperature constraint. In retrospect I should have because the letter says this technology is only useful for engines with combustion-chamber temps in that range. I think the temperature constraint could be argued to be implied by the use of ceramic oxide (i.e., a substance that can withstand temps of over 1600), though from memory the spec says they don't always mean that but mean that in the context of their letter? In real life I'd just say it was implied by the spec. Don't think this was a fatal error anyway.
ReplyDeleteI did the same. I threw in a dependent last minute to state that it was suitable for the operating temperature. I thought superalloy + coating was enough (plus columns, thickness etc.)
DeleteI did the same, not included 1600 degrees
DeleteWe had the metal oxide melting at 1600 in as "ceramic oxide" as such is not clear: different documents give a different interpretation to the term "ceramic oxide". So, it ensure that "ceramic oxides" is well-defined.
DeleteThanks Roel, I was not aware that clarity considerations would need to be made in view of prior art documents, for the claimed invention it does not really matter what definition/interpretation is adopted (any oxide coating would benefit from the columnar structure). Regarding 1600 C, still doubt this is needed as a cooled substrate would relax this requirement significantly (e.g. the air cooled turbine blade does not need any other measure to survive), but maybe this would probably a stretch as this would probably not enable the claim across a sufficient range of substrates (e.g. non-cooled)
DeleteWhy not claim the coating per se? Interested to know why this would not be preferable. Surely a component comprising the coating is much easier to get around, and it’s the coating itself which is the invention? I believe in the letter it also said ‘the inventive coating’ before talking about the air cooling?
ReplyDeleteIt can't be a coating unless it is applied to something.
DeleteCoating ‘for an engine component’ should be possible. There are many such ‘coatings for..’ claims in granted EP. See EP3085748B1 for example.
Deletecited patent seems to disclose a coating system and a coated substrate, I do not see a claim directed to a coating as such, interesting question but not sure whether claiming a coating makes much sense as it cannot exist standalone as mentioned above
DeleteJust been following this. How about EP0991702B2? Is the argument not the same for many part and counterpart claims, where they are claimed individually? An ‘additive’ cannot be an additive unless it’s added to something. An adjuvant needs an active ingredient to increase the efficacy of. A substrate needs some form of counterpart (depending on if you’re chemistry or biology) etc etc, yet they can be claimed themselves. I’d argue the ‘for use’ in a coating claim could make it sufficiently clear. Difficult one though. Would be interested to hear more opinions
DeleteI think claiming coating in a context of a particular new material or novel use of a known material makes perfect sense, when the novelty is in the particular thickness/structure it becomes strange, in this case the orientation of the coating structure wrt substrate combined with thickness provides novelty (ceramic oxides are known), so in that respect it is more a mechanical claim and the substrate is essential to properly define the invention
Delete@Anonymous March 05, 2021 2:57 pm & Anonymous March 05, 2021 6:26 pm
DeleteHow to you get a coating as such to have a columnar structure?
NB: that a patent application or a granted patent shows a certain claim does not necessarily mean that that claim is patentable (why else would we need opposition?), so be careful to base an argument on that.
Reminder: please do not post anonymously, but use a name or a nickname!
To get a coating of the columnar structure - is explained in the description, which the claims are read in light of, as well as one of the pieces of prior art.
DeleteThanks for this.
ReplyDeleteI feel however that your claim 11 is off. Could you comment on the following:
Your second step is: depositing "the ceramic oxide layer" on the engine component. "The ceramic oxide layer" is a columnar microstructure layer as defined in claim 1. As a third method step you machine the layer. However "the layer" already has the microstructure, so what are you machining...? I guess you should have introduced a first layer of ceramic oxide having a melting temperature above 1600°C in the second method step, and machine this first layer into the ceramic oxide layer in the third method step. No?
Kind regards, philippe
I'm using as CPA/prototype D1; OTP - to provide coated components for gas turbine engines which do not lose coating and are not replaced more often than anticipated, i.e to increase the lifetime ot the component.
ReplyDeleteI count on para:This new type of coated engine component can be made using the known adhesion layer and the known ceramic zirconium oxide layer. In this case the lifetime of the coated component will significantly increase.
I count also on Fi.1 and 2 which disclose preferred coatings formed using claimed methods. I think it is very importmat that Both Figs/coatings comprises adhesive layer so I include adhesive layer and not the thickness of at least 25 micrometre of the ceramic oxide layer as feature in cl.1 to render the claim novel with repsect to D2.
With respect to D1 cl.1 is novel/inventive because of: the ceramic oxide layer (13, 23) has columns (14a, 14b, 14c, 24a, 24b) with spaces (15a, 15b, 25) between the columns and the columns (14a, 14b, 24a, 24b) are perpendicular to the surface of the substrate.
I'm surprised that you claim in your model solution cl.2 something which is not unambiguously disclosed in the the clients description, namely that the adhesion layer is a nickel or cobalt alloy containing 10-50 wt.% of aluminium and up to 25 wt.% of chromium or yttrium taken from cl.2/D1
ReplyDeleteIn my opinion the statement of the applicant concerning the 25um was too ambiguous to be used to define the invention. "Preferably" suggests that he considered alternatives with thinner coatings, and he does not say in what cases the thermal insulation is insufficient (is it insufficient when in combination with the cooling holes?). By including the 25um layer feature you take the risk that the client, when coming back from his safari, tells you that "Actually, <25um is ok when combining with the cooling holes".
ReplyDeleteMy solution to this was to define an apparatus claim including the adhesion layer and the columnar structure, without the 25um, to cover the embodiments of figures 1 and 2, as well as a use claim in the form:
"Use of a ceramic oxide layer for thermal insulation of an engine component, ... the ceramic oxide layer having a columnar microstructure", without the adhesion layer and without the 25um layer. Such a use claim could be used as a basis for an apparatus claim including the 25um layer in a later stage of the procedure, in examination, after clarifying with the client if 25um was something he wanted and/or essential.
I did exactly as you!
DeleteThank you DP. My 1st claim is similar, however I directed it to a component (engine part as a dependent claim) and I included the two embodiments with and without adhesive layer as alternatives, because I thought these are the only two ways which were disclosed to carry out the invention. What would you say, will this be heavily punished?
ReplyDeleteSince the method claims are almost the same, I wonder how the marks will be distributed. I guess 40P for claim 1 and 30P for the method claims together. Any guess?
Reminder:
ReplyDeletePlease do not post your comments anonymously - it is allowed, but it makes responding more difficult and rather clumsy ("Dear Mr/Mrs/Ms Anonymous of 05-03-2021 16:56"), whereas using your real name or a pseudonym is more personal, more interesting and makes a more attractive conversation.
You do not need to log in or make an account - it is OK to just put your (nick) name at the end of your post.
Thanks!
thank you delta. I would like to ask how many points would be deducted if the reference signs are not included?
ReplyDeleteM. W
Normally reference signs have been worth roughly 2 points in total, so not so significant.
Delete... 2 points can be very significant if you are around the FAIL/COMPFAIL or COMPFAIL/PASS boundary...
DeleteBut yes, if you check old Examiners Reports, it is typically about 2 marks.
Is it necessary to limit claim 1 to superalloys? If yes, why? Why not just a „substrate“?
ReplyDeletei did not introduce the "space". Is that necessary? I only mentioned columnar microstructure, and i thought said columnar microstructure already indicates the existance of space. Is it not correct?
ReplyDeleteIn D2, the gaps in the columnar microstructures were filled.
Delete[005] "The spaces between the columns allow the coating to deform when the substrate and the ceramic oxide expand upon heating and much less stress is generated."
but then D2 exactly supports that columnar microsture inherently has spaces, or? i remember the gaps in D2 were filled only in the next step by something else.
DeleteThe way I saw it is that filled or not the gaps are still spaces and it was not necessary for novelty and inventive step. The reason why I personally thought the spaces were inherent to the columnar microstructure is that for the processes, the client described essential features that were necessary in order to have said microstructure, but we had no indication s on how to obtain the spaces. If the spaces are not inherent to the microstructure, that would mean that there is a problem if sufficiency of disclosure.
DeleteThank you DP Team for your solution and comments! May I ask you why you consider it necessary to include the feature with the angular range? It seems to me that a claim without it gives broader protection and already solves the technical problem of providing the necessary thermal insulation with reduced weight. The "perpendicular" constraint seems only essential for the additional benefit of reducing stress (as an alternative or an addition to the adhesive layer of D1).
ReplyDeleteHi Roel, question about the limitation regarding chromium oxide being metal oxide with melting temp 1600 degrees, do you think it is an essential element? If so, would it be penalized heavily not having it in the claim, assuming all other limitations exist in the claim? What if claim only has chromium oxide as the coating material. Can an argument be made about generalization of an essential element? Guidelines F-IV, 4.5.3 states "it is sufficient if the application as a whole describes the necessary characteristics of an invention in a degree of detail such that a person skilled in the art can perform the invention (see F‑III, 3). It is not necessary to include all details of the invention in the independent claim." In this case both the application and D1 gives enough details to a skilled person how to select chromium oxide for operating in high temperatures such as 1600 degrees centigrade. I would appreciate your comment on this.
ReplyDeleteI had the same 1600 temperature limitation in my claim because ceramic oxide is not a well-defined term as such according to D1. As not the whole industry uses the term with the same meaning, I included the 1600 to get a clear definition in the claim.
DeleteHi DP, thank you for the proposed solution!
ReplyDeleteI fear that claim 1 would not be inventive in view of D2+D1.
Differences between claim 1 and D2:
(a) ceramic oxide is a metal oxide that melts at a temperature higher than 1600°C,
(b) ceramic oxide layer has a thickness of at least 25 micrometre.
TE of features (a) and (b): sufficient thermal insulation ([3] and [6]).
OTP: how to provide sufficient thermal insulation to an engine component.
Skilled person would consult D1, as it relates to thermal insulation of an engine component ([1]). D1 discloses feature (a) and effect in [2], and feature (b) in [3].
D1 does not explicitly disclose effect of feature (b), but skilled person may use routine skills and CGK that the thicker a thermal insulation layer is, the more efficient thermal insulation will be.
Skilled person would be prompted to modify D2 in view of teaching of D1, thus arriving at solution of claim 1.
Skilled person would not face any technical hindrance in combining D2 and D1: D1 and D2 disclose a turbine blade, D2 discloses a flexible and modular coating apparatus ([1]), and that components can be coated with a thick coating ([3]), i.e., not only the very thin layer of zirconium oxide disclosed in [4].
If the answer is that D1 is cpa and claim 1 is inventive in view of D1+D2, I would use the argument of GL. G-VII, 5.1 that the applicant or proprietor cannot refute the argument that the claimed subject-matter lacks inventive step by submitting that a more promising springboard (here D1) is available: a piece of prior art (here D1) on the basis of which the claimed invention is considered non-obvious cannot be "closer" than a document (here D2) on the basis of which the claimed invention appears obvious, because it is evident in this situation that the former does not represent the most promising springboard from which to arrive at the invention.
I would appreciate your comment on this, especially on the argument of GL. G-VII, 5.1.
I did not exactly mention which of D1 and D2 is the closest prior art, as it is not B paper. However, I argued that D2 also discloses column structure but the thickness of the column layer is only 1 micrometer. I further argued that there is no indication that a column structure would still be formed when increasing the thickness of said layer, not mention that D2 is completely silent in the connection between said column structure and the prevention of the peeling.
DeleteThus, even assuming that D2 is the CPA, the claim 1 is not obvious, because the first question a skilled person is facing is whether the column structure can be achieved when increasing its thickness.
However, i think for paper A, we do not need to go so deep in the description.....I remember we only need to discuss D1 and D2 as well as their shortcomings, and the present invention overcomes said shortcomings.
Thanks for your reply!
DeleteNeither did I, as you said it is not Paper B. However, while drafting the claims I mentally performed an inventive step assessment starting from both D1 and D2, concluded that claim 1 was inventive over D1+D2 but had serious doubts as to whether claim 1 was inventive over D2+D1.
In reply to your argument on a possible loss of columnar microstructure with an increasing thickness, I would cite [2] of D2 which discloses that the temperature of the component controls the microstructure of the layer. Hence, the skilled person would follow this teaching and coat a layer having a thickness of at least 25 micrometers (D1, [3]) on the base of a turbine blade at 950°C (D2, [4]), thereby obtaining a columnar microstructure and arriving at the solution of claim 1.
then the skilled person would still face the problem whether it can be applied to "at a temperature higher than 1600°C", or? i cannot remember clearly what D2 teaches...
Deletethe other point is D2 only said temperature controls the column structure, but it did not say temperature is the only factor which controls the column structure. Thus, a skilled person can only confer that 1 micrometer column would be formed at 950 degree, and 1 micrometer column would not form when temperature condition is not fulfilled.
DeleteAnyway, let's seen how it should be solved.
Indeed, debates over inventive step can be very long :) thanks for your time!
DeleteI think you do a ‘could’ rather than ‘would’ and not a clean problem-solution, which requires no hindsight, no own knowledge and no speculation. I had similar claim as proposed by DP, I believe it is inventive according to correctly applied problem-solution approach, also when starting with wrong closest prior art.
Delete“ I would cite [2] of D2 which discloses that the temperature of the component controls the microstructure of the layer. Hence, the skilled person would follow this teaching and coat a layer having a thickness of at least 25 micrometers (D1, [3]) on the base of a turbine blade at 950°C (D2, [4]),”
DeleteBut why would he get to 25 micron or more? Only with hindsight, or? That he can control the thickness by temperature only shows that any thickness is enabled, so 25 micron is enabled, but it does not show that he would get 25 micron.
This comment has been removed by the author.
ReplyDeleteDid anyone try to cover both methods by a single method claim? I had the following method claim and then hung dependent claims off for each method (electron beam / spraying and machining).
ReplyDeleteA method of manufacturing an engine component for use in engines having a combustion zone operating temperature of at least 1600°C, the method comprising:
depositing a thermally insulating ceramic oxide layer on a substrate of the engine component formed from a superalloy, to coat the substrate;
wherein the ceramic oxide layer has a thickness of at least 25 micrometres;
characterised in that:
the ceramic oxide layer has a columnar microstructure having columns with spaces between the columns, wherein the columns are oriented substantially perpendicularly to an outer surface of the substrate.
In hindsight I maybe shouldn't have done it in this way. Is it total nonsense?
I think it misses the "how" the columnar structure is achieved, so your claim misses something like " wherein the depositing is based on electron beam evaporation + component component kept at 900-1050 C OR the deposited ceramic oxide is machined to form columns and spaces", but this will become a quite complicated claim --> better to have separate claim
DeleteI thought the “how” is not needed in the claim step defining making columns, not needed for novelty, not for inventive step, not for enablement, not for clarity. I had the two specific ways as dependent claims.
Delete1) D1 [002] mentions that 1600ºC "is the minimum operating temperature for the combustion zone of modern turbine engines". This is not specific of D1, it suggests that it is generally known the combustion zone of turbine engines is always operated above 1600ºC.
ReplyDelete2) The client states (letter [013]) that "Components [according to the invention] cannot be used in technical areas other than in engine components for engines with a combustion zone at a temperature of at least 1 600°C.". Note the similarity, almost word for word, with D1. The first sentence of [013] clearly defines the lining of the combustion chamber as a turbine engine component. The second sentence of [013] clearly defines the lining of the exhaust section also as a turbine engine component. The sentence "parts of pumps used in rocket engines" is quite confusing, as it is not directly construed as "parts of rocket engines", i.e., the pump is not part of the engine. So, apart from this dubious reference to pumps in rocket engines, the whole paragraph [013] repeatedly points to the component being a component of a turbine engine. In fact, the whole letter is directed to components for turbine engines, the client being a turbine engine manufacturer, not a rocket engine manufacturer.
Combining 1) and 2), wouldn't be enough to claim "A component for a turbine engine" as implicitly limited to an engine with a combustion zone at a temperature of 1600ºC? Why is it necessary to introduce the explicit temperature limitation?
What I mean is, if the component is suitable for a turbine engine, then it is implicit that it will be used above 1600ºC, and the skilled person would select coating materials accordingly, without explicit mention to it in the claim.
DeleteAgree!
DeleteIt has been argued that the invention is a non-obvious alternative. Indeed, the client's letter at [005] last sentence mentions "the protection of superalloys against high temperatures is just as good with the ceramic oxide layer having a columnar microstructure as with conventional ceramic oxide layers." However, the rest of the letter is rather concerned with improving the lifetime of the component, i.e., to provide an improvement in relation to conventional oxide layers, instead of just providing an alternative that only gives the same protection (see in particular [004], [005] and [012]). This improved protection in relation to the prior art is only achieved when the adhesion layer is also present. So will a claim comprising the adhesion layer be hardly penalized for unnecessary limitation of the scope? Thank you.
ReplyDeleteNot needed to be better to be inventive. Can be same effects, not better, not worse. Alternative can be inventive.
DeleteI agree. It is inventive. The question is, would it be a hardly penalized limitation having the adhesive layer, since the client's letter repeatedly pointed to it for improving the lifetime of the component? Furthermore, it would make the claim novel over D2 without the need to add the 25 micron layer thickness.
Delete1.) A component comprising
ReplyDelete-a superalloy substarte (11, 21) and
-a thermally insulating layer (13, 23) on the superalloy substarte (11,21);
wherein the thermally insulating layer (13, 23) comprises columnar microstructures (14a, 14b, 14c, 24a, 24b) with spaces (15a, 15b, 25) between the columnar microstructures (14a, 14b, 14c, 24a, 24b) ;
wherein the columnar microstructures (14a, 14b, 14c, 24a, 24b) are orientated substantially perpendicular to the surface of the superalloy substarte (11,21); and
wherein the spaces (15a, 15b, 25) between the columnar microstructures (14a, 14b, 14c, 24a, 24b) being arranged so that when the superalloy substarte (11, 21) and the thermally insulating layer (13, 23) expand upon heating allow the thermally insulating layer (13, 23) to deform.
does anyone drafted the device claim in this direction as a functional claim so that it will be inventive over D1+D2??
“ substantially perpendicular” = “perpendicularly” = too limited, does not include all embodiments.
Deletenot necessarily if you have a definition of the term in the description part...
DeleteGuidelines F-IV, 4.7.2 Clarity objections
DeleteIf the application suggests that the use of terms such as "about", "approximately" or "substantially" extends either the interval claimed by a value and/or range outside the error margins of the measurement system or the structural unit beyond the manufacturing tolerances, then the wording becomes vague and undefined, i.e. the application does not fulfil the requirements of Art. 84, because its presence prevents the invention from being unambiguously distinguished from the prior art with respect to novelty and inventive step.
what is "the error margins of the measurement system or the structural unit beyond the manufacturing tolerances" in this case?
ReplyDeleteThe Examiners' Report is available!
ReplyDeletehttp://documents.epo.org/projects/babylon/eponot.nsf/0/7043D0BB750F0825C12586F8002C8336/$FILE/Compendium_ExRep_2021_A_EN.pdf
I have one comment:the following feature has been presented as a dependent claim in the report of the Examiner.
ReplyDelete"the ceramic oxide is zirconium oxide and the temperature is 950-1000°C".
However, from my point of view, said feature should be integrated in the independent method claim. Otherwise the independent method claim would emcompass non-working embodiments, which would contravene Art. 84 EPC, as the subject-matter thereof is not sufficiently supported by the description.
I am kindly asking for suggestions: if it is worth to appeal against the 0 mark given to my independent product claim as follows:
ReplyDelete1. A coated engine component (10, 20) comprising:
a superalloy substrate (11,21) coated with a thermally insulating layer of a ceramic oxide (13, 23) having a columnar microstructure,
wherein the columnar ceramic oxide layer (13, 23) having columns (14a, 14b, 14c, 24a, 25b) with spaces (15a, 15b, 25) between the columns (14a, 14b, 14c, 24a, 25b),
characterized in that the angle between each column (14a, 14b, 14c, 24a, 25b) and the surface of the superalloy substrate (11,21) is between 75 and 105°.
In detail, the feature "at least 25mm" is missing. However, I have limited the coating layer with the feature "a thermally insulating layer" (for sufficient thermal insulation, see para 006 of letter from applicant), which I believe should be distinguishable from D2. This is because D2 only discloses a very thin (approx. 1 micrometre) layer of zirconium oxide (see para 004 of D2), which is not thermally insulating.
What do you think? Will I have a chance to sucessfully appeal against the 0 mark?
Any of suggestions or comments are more than welcome! Thank you in advance!
From my view the feature "a thermally insulating layer" is not sufficient for delimitation against D2, since it can be argued that - although the layer of D2 is thin - it may also provide some kind of thermal insulation, e.g. for use in lower temperatures. In particular, since the claim is silent about the desired temperature level, it cannot be specified which thickness would be sufficient for thermal insulation, thus D2 can also show a "thermal insulation".
Delete(See also Examiner report: 1600°C would also have been suitable for novelty, since in this case D2 is not suitable for such temperatures)
Hi Peter, thank you for your detailed comments. I agree that "a thermally insulating layer" is a limitation which can hardly render the claim novel over D2, because "Thermal insulation" is the reduction of heat transfer (i.e., the transfer of thermal energy between objects of differing temperature) between objects in thermal contact or in range of radiative influence. As long as 1 micrometre thickness can insulate a small range of low temperatures, it can be regarded as "a thermally insulating layer".
DeleteThank you again for your comments and wish you have a nice day!
Best,
Tanja
Go ahead with the appeal!
ReplyDeleteThank you for your encouragement! However, after reading Peter's comments above, I feel that the chance is very low ...
DeleteHi Peter, thank you for your detailed comments. I agree that "a thermally insulating layer" is a limitation which can hardly render the claim novel over D2, because "Thermal insulation" is the reduction of heat transfer (i.e., the transfer of thermal energy between objects of differing temperature) between objects in thermal contact or in range of radiative influence. As long as 1 micrometre thickness can insulate a small range of low temperatures, it can be regarded as "a thermally insulating layer".
ReplyDeleteThank you again for your comments and wish you have a nice day!
Best,
Tanja
Today, 08.05.2023, the following appeal was published in the EQE website:
ReplyDeleteD 0049/21 () of 9.2.2022
https://www.epo.org/law-practice/case-law-appeals/recent/d210049eu1.html
Several lines of argumentation failed, but the following were successful:
Independent method claims of Paper A 2021
17. As held in decision D 13/17, due to the particular structure of Paper A, it might happen that an incorrect answer by a candidate to an element in one part of the paper affected the answer to another part of the paper and that this could lead to a loss of the marks that could be achieved twice for one and the same error. The appellant acknowledged that claim 8 was wrong and that she most probably lost marks for her dependent claim 8. The appellant convinced the board that the dependency of her claim 12 on her claim 8 was a logical result of the wording of incorrect claim 8 and that she therefore had lost marks twice for the same mistake. Consequently, the deduction of 3 marks for an unnecessary limitation of independent method claim 12 because of its dependency on claim 8 would amount to a double penalty, which would not be in keeping with the standards for fair marking set in the case law. It cannot, however, be determined by the board with sufficient certainty from the documents available whether the appellant lost marks for her dependent claim 8 and whether 3 marks were deducted for an unnecessary limitation of independent method claim 12.
18. However, the board cannot accept the argument that it should have been necessary to include the plasma spraying feature in independent method claim 12 because of the features of claim 8. Therefore, in the board's view, there was no double penalty if 3 marks were deducted for including plasma spraying in claim 12.
Dependent claims of Paper A 2021
25. Furthermore, the appellant submitted that her dependent claims 10 and 11 should be awarded 1 mark each, despite not being mentioned in the Examiners' Report since they represented reasonable dependent claims and should be awarded marks in light of decision D 7/05 (see point X(c)(ii) above).
Decision D 7/05 recognises the need to allow for the fair marking of answers which, although deviating from the marking scheme, were nonetheless reasonable and competently substantiated. The board agrees with the appellant that the "competently substantiated" criterion does not apply to the claim drafting in Paper A, where marks were awarded for the claims irrespective of any substantiation. Therefore, her dependent claims 10 and 11, which were not mentioned in the Examiners' Report, should have been awarded marks if they represented reasonable dependent claims. Again, the board cannot determine with reasonable certainty from the documents available whether the examiners took this into account.
Remittal
Delete26. If an appeal is admissible and well-founded, the DBA is, as a rule, under Article 24(4), second sentence, REE only authorised to annul the contested decision and refer the matter back to the Examining Board for a new decision. Within the framework of the appeal procedure, the DBA only has the task of reviewing the decision of the Examination Board for legal errors. If the Examination Board has made a discretionary decision, the DBA can only review whether a discretionary error has occurred. In matters of discretion, however, the DBA cannot replace the contested decision with its own decision. Therefore, requests for the award of additional marks or a certain grade cannot, as a rule, be dealt with in the appeal procedure before the DBA unless there are very special exceptional circumstances in which important reasons speak against a remittal. This would be conceivable, for example, if there is no longer any margin of discretion for the grade or if the Examination Board's margin of discretion for reassessing a paper on remittal is so small that the binding effect of a decision of the DBA would not be observed if the Examining Board did not change the grade (see e.g. D 1/86, OJ EPO 1987, 489, point 2 of the Reasons; D 3/14; D 14/17 and D 20/17). However, such exceptional reasons do not exist in the current case. As set out above, the board is not in a position to determine, on the basis of the available documents in the case at hand and without interfering with the discretion reserved to the Examination Board, what awarding of marks appears appropriate for the appellant's independent method claims and dependent claims. Thus, although it is likely that the appellant would receive a score close to the required 45 or more marks instead of the 38 marks previously awarded if she were to be reassessed, taking into account the considerations set out in points 11, 15 to 18 and 23 to 25 above, this cannot be determined by the board with sufficient certainty and without an evaluative reassessment of the appellant's whole examination Paper A.
Order
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The case is remitted to the Examination Board with the order to instruct the competent Examination Committee to re-mark the appellant's answer paper to Paper A of the European qualifying examination 2021.
3. Reimbursement of the appeal fee in full is ordered.