Paper D 2025 - my experience as a benchmarker
Sitting Paper D 2025 as a benchmarker was a very interesting experience, bringing up a lot of mixed feelings. On one hand, I was very nervous for my candidates (especially my 36 D1 study group members) and wanted them to have a fair exam, so it felt supportive to write the exam alongside them. At the same time, I was worried; after all, as a tutor, shouldn’t I know all the answers? Otherwise, who am I to teach patent law?! (You know, Imposter Syndrome, my old enemy…) What would people think if I made mistakes?
On top of that, I had all those LinkedIn comments in mind: I shouldn’t do too well, because that’s not the point of benchmarking. So, I sat the exam as a benchmarker with all these thoughts swirling in my head. (No, I’m never overthinking anything! 😅)
This was the first time since my own Paper D exam (four years ago) that I answered a Paper D under time pressure and used the Lockdown browser. Luckily, I didn’t have any PTSD, despite the fact that WISEflow still didn’t behave as one would expect.
Overall, I was satisfied with Paper D 2025, I think it was a fair exam! The D1 questions were well drafted, and at least the questions themselves were not too long (the answers are always long, haha!). The inventions in D2, however, were a bit confusing for me (apparently, not just me). Why use a random letter for the inventions instead of the first letter? I couldn’t memorize what the letters meant (e.g., that “R” stood for cubes), so I had to constantly check these in my notes.
To sum up, Paper D 2025 was definitely not easy, but also not too difficult. It was very long, though; I couldn’t completely finish. I definitely wouldn’t have had time to go back and check anything.
Question 2 in D1-1, about R.56a EPC, made me (and candidates who sat the Fillun Mock Paper D exam) really happy, considering that I had tested that topic in the mock exam. 🙂
Technical issues:
As mentioned above (and as many candidates reported in different groups and on the DeltaPatents blog), unfortunately, there were still WISEflow issues in Paper D.
Personally, I experienced two technical problems:
In D1-2, the assignment loaded very slowly in the tab. To be honest, I’m not a very patient person when it comes to issues like this, so instead of waiting, I kept closing and reopening the exam in a new tab. Luckily, after the third attempt or so, it opened relatively quickly.
In D2, Ctrl+F didn’t work when I wanted to search for the dates, so I resorted to skimming the text and trying to spot them manually. I kept clicking the magnifying glass button, but it didn’t do anything either. After about 10–15 minutes (though I don’t remember exactly), the search function finally started working!
D1 (45 marks) divided in two parts
Question 1 (8 marks)
On 11 November 2024, German applicants A and B jointly filed an international application PCT-AB with the EPO. PCT-AB validly claims priority from an earlier EP application EP-B, filed on 10 November 2023 by applicant B. The European search report for EP-B cites only A documents. Today (11 March 2025), A and B wish to of PCT-AB into the regional phase before the EPO for as long as possible for strategic reasons.
What steps should be taken and why?
First, I calculated the 31-m period, then said that this can be delayed by withdrawing the priority claim within 30 months under R.90bis.3 PCT, so I also calculated that period.
I also calculated the new 31-m period from the filing date, and then ended my answer like this:
“Since the ESR for EP-B is positive, it seems there is no other prior art.
However, if we withdraw the priority and effective date of PCT-AB is the filing date, EP-B will become Art.54(3) EPC prior right when PCT-AB enters EP phase, as EP-B was filed before and is published after the filing date of PCT-AB
EP-B will be published: 10 November 2023 + 18 m (Art.21(2)(a) PCT) –> 10 May 2025 Sat
So, PCT-AB will lack novelty before the EPO and will not be patentable - Art.52, Art.54(3) EPC
For this reason, I don't recommend withdrawing priority claim.
Alternatively, they can withdraw EP-B before it is published, so before tech. preparations of EP-B are completed, so 5 weeks before 10 May 2025: before 5 April 2025.”
Regardless of what your final conclusion was, I think you can gain many marks in this question already by calculating the many different periods and dealing with the potential withdrawal of the priority claim.
Question 2 (7 marks)
On 16 January 2024, applicant C filed patent application IT-1 in Italian with the Italian patent office. IT-1 claims and describes invention A. IT-1 was withdrawn shortly after filing, without having been published. On 17 April 2024, invention A was published in a journal. On 16 January 2025, applicant C filed application EP-1 with the EPO, claiming priority from IT-1. The filing and search fees were paid on the same day. On 17 February 2025, applicant C filed application EP-2 in English with the EPO. EP-2 claims and describes invention B. EP-2 does not claim any priority. Inventions A and B are unrelated.
Today (11 March 2025), applicant C notices that, by mistake, EP-1 neither claims nor describes invention A but includes the same description and claims as EP-2.
(a) What should applicant C do to obtain a patent for invention A?
(b) Applicant C additionally wants to prosecute invention B. What needs to be done to obtain a patent on the basis of EP-2?
Part (a) tested Rule 56a(4) EPC. This rule was introduced in November 2022 and was tested the first time in Paper D 2025.
Since the incorrect parts, so invention B also remains in EP-B, in part (b) we had to add priority from EP-1 under R.52(2) EPC. Otherwise, EP-1 could become a novelty destroying Art.54(3) prior right against EP-2.
I think most candidates were prepared for a Rule 56a EPC question! :)
Question 3 (9 marks)
In appeal proceedings following the refusal of European patent application EP-D filed by company D, the Board remitted the case for grant based on a complete text which had been finally decided by the Board. Within the time limit set by the communication under Rule 71(3) EPC received in November 2024, D requested an amendment, namely the addition of a further dependent claim.
In a communication under Rule 112 EPC dated today (11 March 2025), D was informed that EP-D is deemed to be withdrawn.
(a) Why was the communication under Rule 112 EPC issued by the EPO?
(b) Can a patent be obtained with the complete text as decided by the Board and the additional dependent claim?
At this point I had a little bit more than 20 minutes left. When I read this question, to be honest, I had very little idea where to go in the reference book or what the answer is. I cited Art.111(2) EPC and R.71(7) EPC, and mentioned FP (also calculated the FP period), but I didn’t manage to find the T decision or the GL section.
Answering three D1 questions in 1 h 25 minutes is definitely very challenging time wise! That is why you really have to be confident when it comes to frequent topics (divisionals, FP, RE, renewal fees, time limit calculations, Euro-PCT entry, etc.) so that you can spend more time searching for the less frequent topics, such as this Question 3.
Question 4 (10 marks)
Company E filed an automatic debit order for its international application PCT-E, for which the EPO is acting as International Searching Authority (ISA). During the search phase, the ISA considers that the claims of application PCT-E contain seven inventions and invites E to pay six additional search fees.
(a) E is not interested in any of the additional inventions. Does E need to act?
(b) In order to enter the regional phase before the EPO, Form 1200 has been filed and all acts under Rule 159 EPC have been performed, except for paying the fees. Will all fees for entry into the regional phase before the EPO be automatically debited?
(c) EP-F was refused by the Examining Division. Company F filed an appeal against this decision on 28 February 2025. On this date, there were 3 000 EUR in the deposit account. Have any fees been automatically debited?
(d) Has the renewal fee for the fifth year been paid for EP-3?
I don’t think anyone expected a 10-mark question fully about automatic debit orders…
Even though I created an ADA/AAD summary a few days before the exam, that was based on the GL, so it obviously didn’t have all the details. However, it did have the exact number of the OJ that we needed.
After opening the online OJ on the EPO's website from WISEflow, Ctrl+F worked nicely there. I searched the keywords in each question e.g. "refus" "renew", etc., and it was not too bad. Yes, it did take a lot of time, but at least all the answer was in one place.
Question 5 (11 marks)
In August 2024, applicant I filed international application PCT-I in English with the Swedish Intellectual Property Office, specifying that office as ISA. PCT-I has two independent claims directed to inventions C and D. C and D are not linked by a single general inventive concept. Last week, applicant I received an invitation to pay an additional search fee for invention D.
What are the options if applicant I wants to have the EPO carry out an international preliminary examination only for invention D in PCT-I? What steps need to be taken and why?
To answer this question, I used the Euro-PCT guide. Even though I saw that the question asks about “optionS” in plural, I didn’t have time left to mention more than one option. (I probably spent too much time with the automatic debit orders…)
EPO can act as IPEA, since there was a European ISA (Swedish). However, invention D was not yet searched by ISA! Claims relating to inventions in respect of which no ISR has been established will not be the subject of international preliminary examination by the EPO as IPEA. - Rule 66.1(e) PCT and Euro-PCT guide 4.2.027 and 4.2.043
Since the time limit to pay the further search fee is 1 month from date of invitation (last week), there are still about 3 weeks to pay the search fee for invention D. - Rule 40.1(ii) PCT
After the search is conducted for invention D - Art.17(3)(a) PCT, applicant can file the demand - Art. 31 PCT.
Then, I also wrote a few statements about how to file the demand (language, office, fees, time limit).
D2 (55 marks)
D2 was very long, I didn't finish the last question, and I often got confused about the letters (why not just use the first letters of the shapes?).
I remember that I needed about 90 minutes (instead of 45-60) to read the letter, understand the situation and finish my timeline table. It really took a lot of time to get a clear overview of the issues.
Question 1 of D2 was fairly typical: it asked about the current patent situation, subject-matter by subject-matter. The two parts of Q1 referred to two different patent families.
In many D2 exams, Q1 accounts for around half of the total marks. I expect that to be the case here as well, as Q1 was super long and expected the analysis of 7 different subject-matters:
What is the current patent situation as regards the following subject-matter:
(a) a bicycle saddle connector with damping means in the form of
(i) spheres made from rubber (O),
(ii) pyramids made from rubber (P), or
(iii) cubes made from rubber (R);
(b) a bicycle gear shift system comprising an electric motor for shifting the gears and a switch to be mounted on the handlebar of a bicycle for selecting the gears
(i) via an electrical wire (A),
(ii) via a wireless radio connection (B), or
(iii) as such (C);
(c) a bicycle gear shift system comprising an electric motor for shifting the gears and means for selecting the gears, the means including a GPS sensor (D).
I believe Q1 will be worth at least 50–60% of the marks, maybe even more. Question 3, which focused on improvements, might be the second most important (worth around 20%), while Q2 and Q4 will probably only account for a few marks each (perhaps 10% each).
So, if you spent most of your time on Question 1, that’s absolutely fine. After all, you cannot move on to the next questions if you haven’t finished Question 1.
When I checked my submitted version, I saw that about 70% of my answer related to Question 1. That doesn’t necessarily mean anything in terms of results, but maybe it’s reassuring if your approach looked similar.
You can read the exam text on the EPO’s website.
Since the amazing DeltaPatents team quickly shared their perfect answer to the exam, I thought I’d give you a more personal blog post instead of just posting my own version of the answers. I hope you enjoyed it!
I know it’s easier said than done, but try to put Paper D behind you now and enjoy life. After all, spring is here, and you can finally spend some quality time with family and friends again. There’s nothing more you can do at this point, so focus on living your life while you wait for the results.
I’m keeping my fingers crossed that your exam will be fairly marked and that you’ll pass!
Hope to see you at the next Meetup in Munich!