Comments to e:EQE Discussion Paper
This year EQE was hold online. Although this option had been discussed and found desirable for many years, the pandemic enabled to introduce a „digital exam“. There is no summary available until now, about the process and the problems, but comments are found in fora indicating that there were problems.
Therefore, it seems reasonable to wait for the result of the questionnaire that normally is sent to the candidates directly after sitting, and/or a report about the performance. Any experiences with this first online exam should be evaluated before a proposal for changing the EQE is finalized.
Moreover, as a change as proposed will have many effects on education and preparation of candidates, on the reputation of the exam and the professionals, on the daily work etc. it is highly desirable that any revised before presented eventually to the Admin Council has had the chance to be presented to, discussed and voted in epi council.
It would be unfortunate if the many comments to that paper are not considered or if any adapted paper is further processed without consideration by epi council.
II. Is the currrent EQE adequately testing the „fit to practice“ criterion?
Under the above heading the subjects content of the exam or what shall be tested (fit to practice) and methodology or tools for how to structure the preparation and the exam have been mixed up. „Fit to practice“ relates to the content of the exam, methodology to the strategy.
It is agreed that the EQE does not and has not to test technical knowledge – because the presence of technical knowledge is certified by the technical grade a candidate must present before she/he is allowed to start the training. As technical knowledge is important for professional work, it should be a grade high enough to be on the same level as examiners searching and examining applications, i. .e at least a master grade.
(1) What does „fit to practice“ mean?
When EQE has been passed a candidate can be registered on the list and can represent clients before the EPO. The public can trust that someone who is on the list has the skills to draft, file and prosecute applications, handle oppositions and appeals etc. In particular what can be expected from a respresentative is that she/he can understand and apply the legal framework, in particular EPC and PCT, can understand an invention reported to her/him by an inventor, can abstract the inventive idea, can formulate claims protecting the invention and a description describing the inventive features, can amend claims to delimit them from the prior art, can understand office actions, can extract relevant prior art to attack a patent, can evaluate patentability against prior art and can provide argumentation against objections in examination, opposition and appeal.
(2) Content of EQE papers
These skills should be tested, which presently is done in the papers of the EQE:
In Paper A you have to draft an application with a set of claims. This paper is to test if a candidate is able to write a claim that is delimited against prior art but covers all new and inventive features of an invention. The claim should be drafted such that it is neither too broad nor too narrow.
In paper B you have to comment to an office action and to amend claims in response to objections raised by the examiner and to prior art cited by the examiner. What is expected is on the one hand argumentation, and on the other hand proper claim amendment.
In paper C you have to prepare an opposition brief based on information and documents. It is tested, if a candidate can analyse prior art, can evaluate the patentability of claims and can formulate attacks against claims.
In paper D1 the knowledge about EPC ist tested.
In paper D2 you have to show that you can apply EPC and PCT in a concrete case, you have to evaluate the situation, show options how to proceed and to give advice.
Thus, in summary the papers of the EQE test knowledge and skills that can be expected from a European patent attorney.
In the e:EQE discussion paper it has been proposed to change the format of the papers, in particular papers B and C such that the content changes. This is a good proposal as long as the relevant skills are tested.
(3) Proposed changes
It seems that the opposition paper shall be skipped or shall be substituted by a less complex, less demanding paper, where only some arguments shall be provided. The need of paper C has been discussed in the past more often. Arguments for skipping paper C are, that many candidates have not drafted a real opposition when they sit the EQE and that even their supervisors might not have experience with a real opposition case. However, knowing about the opposition reasons and how to draft an opposition brief is very important for anyone drafting applications, because it shows what you have to take care of to be able to amend claims and find arguments when an opposition or a nullity action is raised later in the patent’s life.
EPO with its huge data provides enough material to study how oppositions are proceeded. Thus, candidates can find enough material to prepare for paper C.
III. General drivers and boundary values
It is said that „it is important to maintain standard and to avoid lowering the bar in an unacceptable way“. It is fully agreed that the standard should be maintained and the bar should not be lowered. Main critic points are the lowering of the bar and the introduction of a multi-level modular approach.
1) Lowering of the bar
What „in an unacceptable way“ means, is not clear from the paper. However, it seems that some lowering of the bar is accepted as the complexity of the papers shall be decreased, content of papers shall be reduced and the training time shall be reduced by one third (I know that you plan to let register candidates only after 3 years, however, you can expect that at least some candidates that have passed the EQE and, thus are certified as being fit to practice, will apply for registration in the list, and if not allowed will appeal). At the end being able to sit the final exams of the EQE after two years under supervision will reduce the training time. I’m heavily against this reduction as my long year experience shows that it takes more than two years training to be able to represent clients and fulfill the trust by the public in the title European patent attorney.
2) Multi-level modular approach
From the discussion paper it is not clear who are the stakeholders that have a strong desire for a multilevel approach, except perhaps the course providers.
There are so many disadvantages of a multi-level modular approach, for EQE examiners, supervisors, candidates, and the public, whereas the number of advantages seems to be small except for the course providers.
a. Examination Committees
The highest impact of such modular approach is on the Examination Committees (ECs). This approach will mutliply the work. Offering modules every 4 months means to prepare papers every 4 months. Who shall do this work? Meanwhile most of the EQE examiners are epi members, not EPO members, and have only limited free time to do this work. To find more examiners might be possible, but drafting of all these papers cannot be done with new committee members, it is a task for experienced members who have already marked papers. Where will you find those members?
If papers can written at any time, who will invigilate? Invigilators will not be available around the year. Shall the invigilation be skipped for the first modules?
Thus, a reform of EQE as proposed should not be proceeded with before these changes and the consequences have been discussed within the ECs and an idea has been provided how the work could be done.
Another impact is on the patent firms and patent departments that train candidates. When the exam modules are spread over many months, candidates will be in „exam mode“ for a longer time and will have less chance to work on files. On the other hand, they will need more support from the supervisors for different modules, or need more courses.
Candidates will be permanently in „exam mode“, and will have to invest more time in courses where (as is said in the preamble) they learn more about methodology than content of the exam, and thus less about the real life work. They will learn less on the job.
There is also an impact on clients who trust in a European patent attorney as someone with knowledge and skills, where only knowledge is tested but not so much skills.
IV. Proposal for a modular e:EQE setup
To provide an exam in pandemic times was a challenge and all will be thankful that it was possible to have this year’s EQE after one year without EQE. That the EQE was written online has set a new standard and it will not be possible to go back to a written on paper exam. Therefore, an adaptation to online exam will have to be done, but this should be done based on the experience with the EQE of this year, where no facts are available until now.
The main proposals for the modular setup are: a sit anywhere exam, the increase of multiple choice questions (MCQ), the use of AI, the reduction of time per paper, and the increase of terms for sitting modules. These changes are tremendous, they will lower the bar and, thus, the reputation of the exam, and will have an impact on the quality of the work.
1) Sit-anywhere exam
Although it was necessary to provide the EQE this year as „sit anywhere“ exam, this should not become a standard. It is mentioned in the discussion paper, that the burden of creating exam condidtions is on the candidates. Doesn’t this create a lot of unfairness? And options for cheating?
An unsolved problem will be invigilation under these circumstances, in particular when candidates can sit anywhere at any time.
2) Increase of MCQ and introduction of autocorrection
As has been outlined many times, MCQ can test knowledge but not skills. MCQ have nothing to do with real life. The work of a patent attorney is creative, not chosing between options. For drafting, arguing, presenting arguments before a board etc. it is not enough to know articles and rules and some strategical methods, but deep understanding of an invention, abstraction of inventive ideas, formulating claims that protect an invention etc. have to be created, articles and rules have to be understood and applied. This can neither be tested by MCQ nor by AI.
Moreover, it seems so easy to test candidates by using MCQ, where a computer can do the „marking“. However, it is not, as the MCQ have first to be created, which is a heavy burden. In the present format of the pre-exam 20 questions have to be created, which already requires enormous ressources. Stefan Kastel in his post has outlined it in detail. One has to keep in mind that the exam papers have to be provided in three languages which have to be equivalent. This is particularly difficult for MCQ. If the questions are not equivalent in all three languages they have to be neutralized. Inspite of enormous efforts this happens every year. If one multiplies the MCQ, one multiplies the problems.
Moreover, for a format as intended, thousands of MCQ have to be drafted, who should do this work? And those questions could not just be reused every year, but checked, some taken out, new ones provided, etc. Without knowing who shall do this work, it is difficult to discuss when to offer such format.
It is not explained, how autocorrection could function for this type of exam. It seems that autocorrection can be applied for a format where you just look for the presence of keywords without testing context and understanding or application of rules. This might be useful for testing methodology but not for testing „fit to practice“.
3) Reduction of time per paper
Furthermore, the sit anywhere format is said to be the reason for reducing the time per paper to 2 hours. This reduction is definitely a lowering the bar of the exam, as is noted in the discussion paper („complexity (difficulty) of the respective parts may be lowered to fit the two hour limit“) and, therefore, undesirable. To test „fit to practice“ means to test if a candidate can understand and solve complex problems. The shorter a paper is, the less complex it can be. The solution is, to maintain sitting the exam in examination centers. There can be a change in the type of such centers. Why not using rooms in patent offices, in patent firms and patent departments, with supervisors as invigilators.
Moreover, there are other formats that allow longer time for a paper, for example by allowing access only to part of questions in the first part of the exam, and access to further questions, where the scenario is the same, in the second or further part of the exam.
4) Content of Exam
It is agreed that changing the type of papers in EQE is a good idea, most of the proposed formats are useful. Regarding opposition, it seems that only drafting one or two attacks (more migth not be possible in 2 hours) is not as demanding as drafting a full opposition brief, and therefore, is undesirable. It should be noted, that asessment of infringement and FTO are under national law and cannot be tested in EQE.
The discussion paper is a good basis to start discussion and work on further proposals. At present the changes put a high burden on EQE examiners and drafters, lower the bar and might change reputation, which is not balanced with the benefit the changes might have.