Mock Paper D
You might have read on LinkedIn that I’m organising a Mock Paper D exam this year too! Last year’s Mock Paper D1 exam was very popular among Paper D candidates, as it gave a great opportunity to check their knowledge about 1 week before the exam.
This time, it will be even better, as it will also include a D2 part! So, you can also test your stamina and how to concentrate for about 6-7 hours.
The Mock exam has already taken place on 2 March, via Zoom. (Candidates loved the questions and the challenge!)
However, you can still purchase the Mock Paper D exam, and answer it in your own time. You will also get my commented solutions and filled D2 timeline-table.
Schedule of the Mock Paper D exam:
About the Mock Paper D exam:
By updating and modifying old D1 questions (from 2009, 2013, 2015, 2017, 2018), I have created a Mock Paper D exam for candidates with the same setup as your Paper D exam in 2025: D1-1 part including 3 questions for 24 marks altogether, and D1-2 part including 2 questions for 21 marks in total.
Today's date in all 5 questions is 11 March 2025, the date of Paper D 2025.
The topics are diverse, but I also made sure to use the most common EQE topics and also added many more recent legal topics. Yes, there are also PCT related questions, yes, PCT questions in plural... 😅
Two of us checked the questions and answers separately to make sure they are clear enough.
The D2 part is an old D2 exam with changed dates and slightly shortened text (I have also deleted one question to make it a bit shorter).
If you have also attended Fillun Mock Paper D in 2024, please note that one D1 question is the same as in last year’s Fillun Mock Paper D1 (but the dates have still been changed).
The price includes 20% VAT.
D1 and D2 study group members have 50% discount. (If you are using the discount code but are not a member of a D1 or a D2 study group, your registration will not be valid.)
I decided to share one question from last year’s mock so that you can see what you can expect, and to also give you an option to practice for Paper D. ⬇️
QUESTION 1 (13 points)
For European patent applications EP1 and EP2, the applicant filed a divisional DIV1 on 8 October 2023 of EP1, and a divisional DIV2 on 21 January 2024 of EP2.
The applicant received an invitation, under R.58 EPC, to file the missing claims for DIV1 no later than 9 February 2024. When checking his files, the applicant confirmed that the missing claims was the only deficiency in DIV1. He also noticed that there was a single deficiency in the filing of DIV2, namely that the filing and search fees had not been paid. On 9 February 2024 the applicant tried to file the claims for DIV1 and to pay the fees for DIV2. However, in spite of all due care taken, the claims for DIV1 failed to arrive at the EPO and the debit order for DIV2 could not be executed as there were insufficient funds in the account.
The applicant learned about these failures today, 5 March 2024, by receipt of two EPO communications, dated 1 March 2024, indicating the loss of rights for DIV1 and DIV2.
a) Can the claims for DIV1 still be validly filed?
b) The filing date of EP1 is 8 August 2019. For DIV1, no renewal fee has been paid yet. Which renewal fees must be paid before the end of 2024 and until when?
c) Can a new divisional application of DIV2 be validly filed today?
d) The filing date of EP2 is 10 March 2019. For DIV2, no renewal fee has been paid yet. Which renewal fees must be paid before the end of 2024, and until when can they be paid without surcharge?
ANSWER:
a) Yes, if we request RE.
DIV1 comm dated 1 March 2024 indicates that DIV1 is refused (because no claims were filed in response to R.58 EPC communication) - Art.90(5), R.57(c) EPC
FP is excluded - A.121, R.135(2), but RE is possible - Art.122, R.136(3) EPC
RE can be successful as all due care was taken
So, yes, claims may still be validly filed if we successfully request RE
Removal of cause of non-compliance (R.136(1) EPC) is the actual receipt of the communication about loss of rights, so today, 5 March 2024 - T 428/98
Time limit for requesting RE:
5 March 2024 + 2m (R.131(4) EPC) –> 5 May 2024 Sunday, EPO closed –> extended to 6 May 2024 Monday (R.134(1) EPC)
but maximum 1 year:
9 February 2024 + 1 year (R.131(3) EPC) –> 9 Feb 2025 (extended to 10 Feb 2025, but not relevant, as the 2-month period is shorter, and because you are not expected to have a calendar for 2025)
6 May 2024 is earlier, so we have about 2 months to do it
So, no later than 6 May 2024:
- request RE, and pay fee for RE - RFees2(1) item 13
- prove all due care
- complete omitted act - R.136(2) EPC, i.e. file claims for DIV1
b)
31 August 2021: 3rd fee due for EP1
31 August 2022: 4th fee due for EP1
31 August 2023: 5th fee due for EP1
Renewal fees for years 3, 4 and 5 fell due on the filing date of DIV1 - A.86(1) and R.51(3) EPC
Renewal fees for years 3, 4 and 5 should have been paid within 4 months of filing DIV1, so until: 8 October 2023 + 4 m (R.131(4) EPC) –> 8 Feb 2024 Thursday, but were not paid (this was before the application was refused, so R.51(4)(a) EPC does not apply)
But they can still be paid with an additional fee, within 6 m of filing DIV1 - R.51(2) EPC
so: 8 October 2023 + 6 m (R.131(4) EPC) –> 8 April 2024 Mon, so today it is still possible, with additional fee, i.e. +50% of the renewal fees must be paid
The fees for years 3, 4 and 5 were already due when the loss of rights occurred, but the period under R.51(2) has not yet expired, so R.51(4)(b) applies, so applicant will actually be able to pay the fees with surcharge even within 6 months of the date of the notification of the decision re-establishing the rights of DIV1.
31 August 2024 will be the due date for the 6th fee - R.51(1) EPC –> can be paid until 2 Sept 2024 (31 August 2024 is Sat, R.134(1) EPC),
or with surcharge until 28 Feb 2025 Friday - R.51(2) EPC
c) Yes, but we have to first restore DIV2 by requesting FP under Art. 121 EPC.
Insufficient funds means fees were not paid - ADA2022 10.1 & 7.4.1
For DIV2, last day to pay fees was - R.38(1) EPC:
21 January 2024 + 1 m [R.36(3), R.131(4) EPC] –> 21 Feb 2024, Wednesday
DIV2 comm dated 1 March 2024 is R.112(1) comm, indicating that DIV2 is deemed withdrawn - Art.78(2) EPC
FP not excluded - R.135(2) - so it is available
Today, DIV2 is no longer pending, so today it is not yet possible to file a new divisional (DIV3) - R.36(1) EPC; G1/09
So we should request FP to restore pending status - Art.121(3) EPC - and file divisional DIV3 - Art.76(1) EPC
Last moment to request FP is:
1 March 2024 + 2m [R.131(4) EPC] –> 1 May 2024, EPO closed –> extended to 2 May 2024, Thursday (R.134(1) EPC)
So we should request FP no later than on 2 May - R.135(1) EPC
- Complete omitted act, i.e. pay filing & search fees for DIV2
- Pay fee for FP - RFees2(1) item 12 - which is 50% of both omitted fees: filing fee and search fee
Then we can file DIV3.
d)
31 March 2021: 3rd fee due for EP2
31 March 2022: 4th fee due for EP2
31 March 2023: 5th fee due for EP2
Renewal fees for years 3, 4 and 5 fell due on the filing date of DIV2 - Art.86(1) and R.51(3) EPC, these were not paid yet
31 March 2024: 6th fee due for EP2 –> this is within 4 months of filing of DIV2
So, annuity fees for the years 3, 4, 5 and 6 can be paid without surcharge within 4 months of filing of DIV2, so no later than: 21 January 2024 + 4 m (R.131(4) EPC) –> 21 May 2024 Tuesday - Art.86(1) and R.51(3) EPC