My submitted 2021 Paper C answer
A common feedback I get from candidates is being unsure how much you actually need to write at the EQE. Although my Paper C was absolutely not perfect (81/100) or complete, I decided to share my actual answer hoping that it is helpful for your preparation. Please note that I tend to write more than probably needed.
Disclaimer: Please don’t take this as a perfect solution and don’t judge if you see mistakes or incomplete sentences…
I have not changed the formatting, just simply copied the text from the saved PDFs.
Part 1
Notice of opposition - part 1
Opposed patent: EP3141592B1 (Annex 1, English version, Application number: 16180339.8)
Patent proprietor: Winterwute Corp. (Address: Bahnhofstr. 4, 3073 Gümligen (CH))
Opponent: Waterhole Science Laboratories (Address: 4252 Country Club Drive, Long Beach CA 90807, USA)
Grounds for opposition: Art.100(a) novelty, inventive step, Art.100(c) added subject matter
Extent of opposition: all claims
The opposition fee has been paid online
Name of representative: Ms Molly Dorsett Pauley, European Patent Attorney (GB)
Signature: Molly Dorsett Pauley
Effective dates - Art.89 EPC
Annex 1 claims priority of the applications NO20150000333 filed on 11 March 2015 and NO20150000355 filed on 10 June 2015. A1 was filed within 12 months of both applications and was filed by the same applicant, Winterwute Corp. The first application requirement is also satisfied.
Claim 1 was present in the first priority document, NO20150000333, so it is entitled the first priority date, 11 March 2015 as its effective date, since the same invention requirement of Art.87(1) is satisfied.
Claim 2 and 3 are entitled the filing date of the second priority document, NO20150000355 as effective date, so 10 June 2015. Claim 2 and 3 were present in NO20150000355, so the same invention requirement of Art.87(1) is satisfied.
Claim 2 and 3 were not present in the first priority document, NO20150000333. The embodiment of claim 2 is illustrated in Fig. 4 and is described in A1 §12-16. Neither Fig. 4, nor these paragraphs were present in the first priority document, NO20150000333, so claim 2 cannot be entitled the first priority date as effective date. The embodiment of claim 3 is described in A1 §17, which was not presen tin the first priority document, NO20150000333, so claim3 cannot be entitled the first priority date as effective date either.
Documents (EN version)
A1: Patent opposed
A2: The excerpt itself is a written public disclosure from 6 August 2015. However, it is also a proof that the structure of Fig. 1 could be seen already in real life in the last week of May 2015 by tourists, i.e. the public. If necessary, we will provide witnesses who will prove this. This means that the elongated structure itself is public prior use from May 2015 and can be regarded as a separate prior art.
So, the public prior use (content of Fig. 1) can be used as Art.54(2) prior art against claims 2 and 3, since May 2015 was before the effective date of claims 2 and 3.
The rest of A2 (written disclosure) is not prior art for any of claims 1-3, since it was published after the effective date of all claims.
A4 is Art.54(3) EPC prior art for claim 1, since A4 is also a European patent appl., and it has an earlier effective date and later publication date than the effective date of claim 1.
A4 is Art.54(2) EPC prior art for claims 2 and 3, since it was published before the effective date of these claims.
A3, A5 and A6, all patent applications already published, are Art.54(2) EPC prior art for all claims 1-3, since they were all publishedbefore the effective date of claims 1-3.
Attacks
Claim 1, independent claim is not novel under Art.54(2) over A3. - Art.100(a) EPC
Claim 1 relates to an underwater energy storage device.
Second embodiment of A3 (illustrated in Fig. 3) discloses all the features of claim 1. A3 §7 confirms that the elements (such as the pedestal, protrusion, spacer, etc.) other than the restraining element can be the same for its two embodiments.
Second embodiment of A3 discloses:
an underwater energy storage device (see A3 §1)
comprising a reservoir (see A3 §3 vessel, also described as a compartment with double walls having two conduits; see A1 §2 for the definition of a reservoir: "any compartment surrounded by a wall, out of which compartment water can be pumped out and into which water can be let in.", so the vessel of A3 is indeed a reservoir),
a structure providing buckling resistance thereto (see A3 §2, and also see A1 §4: "the reservoir necessarily has a structure providing buckling resistance", so it indeed has such a structure),
anti-buoyancy means having a ballast body (see pedestal in claim 2 that is concrete, see A3 §5 where it is described that it prevents the vessel from rising, and then see A1 §5 for the definition of anti-buoyancy means: "ensure that the device as a whole does not rise irrespective of the amount of water pumped out of the compartment." Thus, the pedestal is an anti-buoyancy means; and the concrete pedestal also satisfies the example given for anti-buoyancy means in A1 §5, see A3 §5: "downward force of pedestal's weight")
with holding means (see pair of rim sections and straight sections in claim 3 and A3 §9 which are the holding means, rim sections are closed and clamp down the vessel; see A1 §10 for the definition of holding means: "facilitate deployment and enable servicing because the reservoir can be brought into and out of the holding means as needed", this is exactly what the sections of the second embodiment of A3 do),
and spacers (see the bumpers described in A3 §8, note that bumpers are elastic spacers, see A5 §11) made from an elastomer (see A3 §10);
wherein said reservoir has a protrusion (see A3 §2: bulge protruding is a protrusion),
along its external surface (see A3 §2: on the outer circumference, which means it is outside, i.e. on external surface),
said spacers are arranged between the reservoir and the anti-buoyancy means (see A3 §8: bumpers are on the pedestal and inside the straight section to help positioning the vessel, so this means that they are arranged between the reservoir and anti-buoyancy means),
and said holding means releasably engages (see A3 §9: straight sections are movable with the help of a hinge, so vessel can be taken out)
with the protrusion so that the weight of the ballast body is conveyed to the reservoir (see A3 §11, where the bulge is the same as the protrusion as explained above).
Accordingly, claim 1 is not novel.
Claim 2, dependent on claim 1 is not inventive in view of A3+A4+A6 under Art.56 EPC - Art.100(a)
Claim 2 relates to an underwater energy storage device for use at depths greater than 200 m below sea level. See A2 page 3, first paragraph for the definition of mesopelagic depths: depths between 200 and 1 000 m below sea level.
- A3 is the closest prior art, since it also relates to an underwater energy storage device for use at depths greater than 200 m below sea level, see A3 §9 last sentence. A3 is also in the same technical field of underwater energy storage devices.
- A3 discloses all features of claim 1, see above. A3 also discloses a wall surrounding the vessel, see A3 §3.
- Claim 2 differs from A3 in that it comprises a
1) first reinforcing arrangement inside the compartment which extends between opposing parts of the wall; and
2) a second reinforcing arrangement extending as a skeleton within the ballast body.
Instead, A3 mentions in A3 §11 that it could further be adapted to be even better for these depths.
- Effect of diff. 1) see A1 §13: "the forces arising from the hydrostatic pressure are at least partly counterbalanced. The beneficial effect is a reduction of the net resulting mechanical stress on the reservoir's wall."
Effect of difference 2) see A1 §15: "A skeleton improves stiffness, so the ballast body is able to better withstand any bending strain it is subjected to." also see A1 §16: "allows safe deployment of the device in locations where the ground of the body of water is uneven."
The first and second difference do not mutually influence each other and have no synergistic effect. They solve two separate partial problems. - First partial problem solved by the first difference: how to provide a reservoir with less resulting mechanical stress on the reservoir's wall.
Second partial problem solved by the second difference: how to provide safe deployment of the device in locations where the ground of the body of water is uneven.
- First problem:
Skilled person would read A6, since it also relates to underwater energy reservoirs. A6 discloses a solution to this problem in A6 §9 and §10 and mentions that it improves buckling resistance. Skilled person wants to improve buckling resistance, since A3 told him to do that. A6 says that an internal scaffolding can also be added to manufactured reservoirs, thus it can be added to the vessel of A3 as well, without any problems. A6 says that the best is to use cylindrical reservoirs, and A3 has that (see A3 §2).
So, skilled person will simply add the internal scaffolding of A6 into the cylindrical reservoir of A3 and will arrive at the claimed solution. This simple combination does not involve inventive skills.
- Second problem:
Skilled person would read A4 when wanting to adapt the vessel of A3 so that it is able to stand on uneven ground, since A4 also relates to underwater energy reservoirs (see A4 §1) and describes a solution to the problem in A4 §10 and §11. Since A4's ballast pad is also made of concrete similarly to the pedestal of A3 (see A3 claim 2), skilled person knows that the solution as described in A4 will work with A3 as well, and will solve the problem. A4 also confirms in A4 §10 that their ballast pad works both for mesopelagic and epipelagic depths. This further confirms for the skilled person that it will also work with the pedestal of A3.
So, skilled person will simply reinforce the concrete of A3 with a mesh as described in A4 or replace the pedestal of A3 with the ballast pad of A4. Both modifications are very simple and do not involve an inventive step.
Thus, claim 2 lacks inventive step in view of A3+A4+A6 under Art.56 EPC.
Claim 3, dependent on claim 1 (since includes all the features of claim 1), is not novel under Art.54(2) over A3. - Art.100(a) EPC
Claim 3 relates to a plurality of devices of claim 1 connected for the purpose of storing energy.
See our arguments above against claim 1, that A3 second embodiment discloses all features of claim 1. Fig. 3 discloses multiple of devices according to claim 1, since there are 4 vessels in Fig. 3.
So, A3 indeed discloses plurailty of devices according to claim 1. 4 is a plurality of vessels.
A3 §6 also discloses that they can be connected to a single, common hydroelectric energy module. A3 §3 describes that this module contains both a pump for storing energy and a turbine for releasing energy. A3 §7 confirms that the second embodiment may have the same hydroelectric energy module of the first embodiment.
Thus, all of the features of claim 3 are disclosed in A3, and claim 3 is not novel.
Part 2
Notice of opposition - part 2 Effective dates
- Claim 4 and 5 has the effective date of the 2nd priority date, i.e. the filing date of NO20150000355, 10 June 2015. Both claim 4 and 5 were present in the 2nd priority doc., NO20150000355, so the same invention requirement is satisfied.
Reason why not the first priority date: claim 4 has basis in the application in §18-21, claim 5 in §22. Neither the claims 4, 5 themselves, nor these paragraphs were present in the first priority document, so they cannot be entitled the first priority date as effective date.
- Claim 6 has two alternatives: when dependent on claim 1: Claim 6+1; and when dependent on claim 5: Claim 6+5.
- Claim 6+1: does not have an effective date. Claim 6 was added during examination and discloses 17-35% RZCH in the elastomer of claim 1. The application as filed does not contain any basis for this claim, since it only discloses 13 to 47% for the elastomer spacer in claim 1, see A1 §11. So, this alternative of claim 6 extends beyond the content of the application as filed, contrary to Art.123(2) EPC.
- Claim 6+5 can be divided to two conceptual parts and is entitled to partial priority (G 1/15), so claim 6+5 has two different effective dates.
17-23% RZCH in the elastomer of claim 5 has basis in the application in §22. §22 was already disclosed in the second priority doc., NO20150000355. So, this range is entitled to the effective date of the 2nd priority date, i.e. the filing date of NO20150000355, 10 June 2015. (This range includes the end points of 17% and 23%)
However, 23-35% RZCH in the elastomer of claim 5 has basis only in §23 that was not included in either priority documents but was added upon filing. So this range: 23-35% has the filing date of A1 as its effective date. (This range begins above 23%, since the endpoint 23% has the earlier effective date.)
Documents (EN version)
A1: Patent opposed
A3, A4, A5 and A6 are all Art.54(2) EPC prior art documents for claims 4-6, since they were oublished before the effective date of all these claims.
A2 excerpt is only prior art for claim 6+5 23-35% that has the effective date of the filing date of A1, since A2 was published in August 2015 that is before the filing date of A1 (2016 March).
A2 is also a proof that the content of Fig. 1 was available for viewing for the public as already mentioned in part 1. This public disclosure is prior art for the other claims: 4, 5 and 6+5 17 to 23%.
Attacks
Claim 4, independent claim is not novel over A5 under Art.54(2) - Art.100(a) EPC
A5 discloses an underwater energy storage device (see A5 §1, for energy in fossil form)
comprising a reservoir (tank of A5 has double walls, see A5 §2, see A1 §2 for the definition of reservoir and also see A5 §8 describing how two pipes can pump fluid in or out, which satisfies the definition of the reservoir of A1),
a structure providing buckling resistance thereto (see A5 §10: tank will not collapse, which is the definition of buckling resistance as described in A1 §4),
and anti-buoyancy means (see A5 §3 providing combined weight for buoyancy, see the definition of anti-buoyancy means in A1 §5 which is satisfied with this weight of A5);
wherein said reservoir has been formed by joining several mid-piece reservoir sections (see A5 §2, plurality means the same as several) and two end reservoir sections (see A5 §2, segment and section are synonyms),
said reservoir sections are provided with tensioning tubes through which wire ropes are strung (see A5 §4 where boreholes are described, and see A1 §19 where boreholes are named as an example of tensioning tubes),
and said wire ropes comprise strands of twisted metallic wires, the number of strands being 7 or fewer (see A5 §5: PI-R wire ropes, and see A2 last page, last § explaining that PI-R wire ropes have 7 or fewer strands. This information is well known in the industry from 1970, so it can be used.).
Therefore, A5 discloses all features of claim 4 and it is not novel, Art.54(2) EPC.
Claim 5, dependent on claim 4 is not inventive in view of A4+A5 under Art. 56 EPC.
Claim 5 relates to a modular underwater energy storage device connected to a pump driven by a motor and to a turbine driving a generator.
- A4 is the closest prior art, because it also relates to a modular underwater energy storage (see A4 §6) and it is the only prior art comprising the electromechanical components necessary for underwater hydroelectric energy storage, able to connect to a motor and turbine.
- A4 discloses an underwater energy storage device comprising a reservoir (see A4 §6)
a structure providing buckling resistance thereto (see A4 §8, it is suitable for shallow depth, but also see A1 §4: the reservoir necessarily has a structure providing buckling resistance),
and anti-buoyancy means (see A4 §9 ballast pad, which satisfies the definition as described in A1 §5);
wherein said reservoir has been formed by joining several mid-piece reservoir sections (see A4 Fig. 2 where 5 middle sections are illustrated, A4 §2 describes two segments which is also several)
and two end reservoir sections (see Fig. 2 and A4 §6 for end pipe segment, but it is clear from the Fig 2 that there are two end segments; segment and section are synonyms),
A4 also discloses that the reservoir has been formed so that adjacent reservoir sections are joined with a sealing layer between them (see A4 §4,
gasket is a sealing layer, see A5 §6)
said sealing layer comprising an elastomer (see A4 §4),
and said reservoir is connected, for the purpose of storing energy, to a pump driven by an electric motor and connected, for the purpose of releasing energy, to a turbine driving a generator (see A4 §6, and see A3 §3 for the definition of hydroelectric energy conversion module: it holds, for storing energy, a pump driven by an electric motor and, for releasing energy, a turbine driving a generator.)
- Claim 5 differs from A4 in that:
1) said reservoir sections are provided with tensioning tubes through which wire ropes are strung. Instead, A4 has tensioning screws on the external side of the pipe segments.
2) and said wire ropes comprise strands of twisted metallic wires, the number of strands being 7 or fewer
Effect
1) Technical effect of internal tensioning system of wire ropes: guarantees a long service period, see A1 §21.
2) Technical effect of number of strands being 7 or fewer: less complicated braiding technique, which is considerably less expensive, see A1 §20. Problem:
1) how to provide a tensioning system that guarantees a long service period.
2) how to provide a tensioning system that is simple and not expensive. These problems relate to each other, so we are discussing them together.
A4 warns the skilled person that there is a risk because of the screws and mentions that other tensioning system may be used A4 §5. So, skilled person is hinted to look for better tensioning. This also confirms for the skilled person that the tensioning can be changed in A4.
Skilled person will read A5 since it also relates to modular, underwater energy storage devices. A5 provides a solution to the problem in A5 §7. A5 describes both interior and exterior tensioning, see A5 §7. It mentions the advantage of the interior tensioning and that they can be used interchangeably.
A5 uses PI-R wire ropes that have 7 or fewer strands. (This information is well known in the industry from 1970, see A2 last parag.) There is no inventive step involved in changing the exterior tensioning of A4 to the interior tensioning as explained in A5. This simple modification does not invol
Claim 6+1 (i.e. dependent on claim 1) extends beyond the content of the application as filed, contrary to Art.123(2) EPC - Art.100(c) EPC
Claim 6 was added during examination and discloses 17-35% RZCH in the elastomer of claim 1. The application as filed does not contain any basis for this amendment, since it only discloses 13 to 47% for the elastomer spacer in claim 1, see A1 §11. There is no direct and unambigous teaching in the application as filed for a device in which the elastomer spacer has 17-35% RZCH.
So, this alternative of claim 6 extends beyond the content of the application as filed, contrary to Art.123(2) EPC.
Claim 6+5 17-23%, dependent claim not inventive in view of A4+A5 under Art.56 EPC, similarly to claim 5.
This claim relates to a modular underwater energy storage device with a sealing layer comprising elastomer with 17 to 23% RZCH, which is well suited to shallow depths (see A1 §22).
A4 also relates to modular underwater energy storage device for shallow depths (see A4 §8 and A2 page 3 first parag. for the definition of epipelagic depths).
A4 discloses 20% by weight of RZCH, see A4 §4 which falls within the range of 17-23% and is thus the same. So, the difference between this claim and A4 is the same as already described under Claim 5.
So this claim lacks inventive step for the same reasons as claim 5, in view of A4 and A5, Art.100(a) EPC.
Claim 6+5 23-35%, dependent claim is not inventive in view of A2+A6 under Art.56 - Art.100(a) EPC
This claim relates to an underwater energy storage device with a sealing layer comprising elastomer with 23-35% RZCH, which is suitable for greater depths, where the increase in pressure allows for greater rigidity (see A1 §23).
- A2 is the closest prior art since it also relates to an underwater energy plant and storage (see A2 page 2, line 4), which is also suitable for mes. depth (see A2 page 4 line 1). A2 is also the most promising starting point for skilled person, since it has the most structural and functional similarities with this claim.
- A2 discloses an underwater energy storage device comprising a reservoir (see A2 page 3, line 20),
a structure providing buckling resistance thereto (see A2 page 4 line 1, and also see A1 §4: the reservoir necessarily has a structure providing buckling resistance),
and anti-buoyancy means (see it described in A2 page 2 line 21-23 and then on page 4, line 10 the skirt which keeps the plant on the seabed, which satisfies the definition as described in A1 §5);
wherein said reservoir has been formed by joining several mid-piece reservoir sections (see A2 page 3 line 13-15) and two end reservoir sections (see A2 page 3 line 15 and also see Fig. 3 with two end segments),
said reservoir sections are provided with tensioning tubes through which wire ropes are strung (see A2 page 3, line 15-16),
and said wire ropes comprise strands of twisted metallic wires, the number of strands being 7 or fewer (see A2 page 4, line 15 and line 27-28 explaining that they use PI-R that has 7 or less strands).
A2 also discloses that the reservoir has been formed (see A2 page 3, line 20) so that adjacent reservoir sections are joined with a sealing layer between them (see A2 page 3, line 17),
said sealing layer comprising an elastomer (see A2 page 4, line 16)
and said reservoir is connected, for the purpose of storing energy, to a pump driven by an electric motor and connected, for the purpose of releasing energy, to a turbine driving a generator (see A2 page 2 lines 5-8).
A2 also discloses RZCH as a filler (see A2 page 4, line 16).
- The difference is that the amount of RZCH is 23 to 35 % by weight. Instead, A2 does not disclose any specific range of the RZCH.
- The effect of this feature is that it improves long-term stability against deformation and thus prolongs the service period, see A1 §23. - The objective techn. problem solved is thus how to improve long-term stability against deformation and prolong the service period.
Skilled person when faced with the technical problem would read A6, since it is in the same technical field, as it also relates to underwater energy storage devices (see A6 §2). Its reservoir (in all embodiments) is also made of segments and a similar sealing layer is used like in A2. A6, more particularly its second embodiment (see A6 Fig. 3 with its sealing layers) relates to reservoirs used in greater depths (see A6 §11) and A6 describes the problem of higher pressure in mesopelagic depths (see A6 §12) and describes that 30% of RZCH should be used in the elastomer to solve this problem. 30% falls within the range of 23-35% and thus destroys its novelty. Skilled person is tempted to try a bit broader range than 30%.
There is no inventive step involved in the simple combination of A2 and A6, skilled person will choose an elastomer that has RZCH in the range as suggested in A6 and will arrive at the claimed invention.
Claim 6+5 23-35% is thus not inventive in view of A2+A6 under Art.56 EPC.
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