D 0002/24 - An effective appeal

Key points

• I do not normally discuss EQE appeals on this blog, but this decision is an example of an appeal going smoothly. It concerns the Pre-Exam 2024. The decision was taken on 9 August 2024 and published online on 13 August. 
• The Board allowed the appeal and awarded the grade "PASS"
• I assume the candidate can, therefore, sit the Main Exam 2025.
• Overall, this should be the purpose of appeals about the pre-exam, of course, i.e. that a well-founded appeal affords an effective remedy and allows the candidate to sit the Main Exam without delay.
• " The appellant's argument essentially boils down to the understanding of the term "to provide" in the given context, and whether the electronic cigarette in D1 "pro­vides" only vapour, which is the appellant's understanding, or (also) a liquid solution (to avoid the health risks caused by high nicotine concen­tra­tions), which is the understanding of the Examiners' Re­port."
• The device of D1 contains a liquid solution but supplies only vapour to the user, as I understand it.
• The Board: "It follows from the setup of the pre-examination with its multiple-choice questions that they must be for­mulated clearly and unambiguously, and that remaining doubts which cannot be sorted out at the time of taking the examination, but only by way of the appeal, cannot be to the detriment of the candidate "
• This holding will be true for any multiple-choice questions (and the like) in the new EQE as well, I suppose. 
• Incidentally, it is a bit curious to see vaping picked as the topic of an exam question, even though there is plenty of patenting going on in that field. 

EPO 

The link to the decision and an extract of it can be found after the jump.

https://www.epo.org/en/boards-of-appeal/decisions/d240002eu1

11. The appellant's argument essentially boils down to the understanding of the term "to provide" in the given context, and whether the electronic cigarette in D1 "pro­vides" only vapour, which is the appellant's understanding, or (also) a liquid solution (to avoid the health risks caused by high nicotine concen­tra­tions), which is the understanding of the Examiners' Re­port.

12. The verb "to provide" generally means to give someone something they need or to make something available (see, for example, the Cambridge Dictionary). In a tech­nical context, it can refer to the act of making something available or supplying it, thus emphasising the act of delivering or enabling access to resources or functions. It therefore refers to the very purpose of (here) the electronic cigarette, which is not to pro­vide a liquid solution that cannot be directly used by the smoker, but the vapour produced from the liquid therewith. Similarly, the application and its claims I.1 and I.2 relate to vapour production by an electronic cigarette, and the term "to provide" is used in the description only as to "provide nicotine to the user in an aerosol that simulates the smoke of a conventional cigarette, together with other substances that provide flavour".

13. The appellant's understanding is not necessarily the only possible or the most straightforward, but it is justifiable as also not being - from the point of view of the skilled person - illogical, without making tech­nical sense, or against the laws of thought (cf. as to the interpretation of claims in the Boards' juris­pru­dence Case Law of the Boards of Appeal, 10th edition 2022, II.A.6.1, II.E.1.3.9). Statement 12.4 was also not concerned with novelty of claim I.1 over D1, which could have involved other considerations going way beyond the interpretation of the term "to pro­vide" (and which was, in fact, covered by statement 12.2 which was correctly answered by the appellant, and all the more so it deems justified for them to apply a narrow ap­proach in the understanding of the terms used in statem­ent 12.4).

14. The teachings of the application, and those of D1 alike, are ambiguous also for a further reason: The ap­pli­­cation in [003] mentions that electronic ciga­rettes provide nicotine to the user in an aerosol - thus in the form of condensed droplets suspended in air - where­­as [006] of the application, as well as [004] of D1, only mention vapour for inhalation. The term "li­quid solution" is only used for the liquid as present in the cartridge/container before atomisation. Maybe, for a person having specific background knowledge of the physical processes involved, this does not neces­sarily lead to a contradiction: The atomiser produces, from the liquid solution, vapour in the physical sense (a substance in the gas phase) that condenses into small droplets of the liquid solution suspended in the air, thus an aerosol, sometimes also referred to as "wet steam". However, it cannot be expected that the candidates have this kind of background knowledge; to the contrary, they must not use any specific knowledge they may have of the technical field of the invention (Rule 21(3) Implementing provisions to the Regulation on the European qualifying examination (IPREE)). Thus, the fact that the term "liquid solution" is, in the application and in D1, only used to designate the liquid as initially present in the cartridge may lead to further confusion. It may likewise result in the conclusion that the statement according to which D1 discloses an electronic cigarette that "provides" a "liquid solution" is not correct.