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the future of the EQE

the future of the EQE

by Tiem Reijns -
Number of replies: 8

With the decision to move to an online exam in 2021, and a clear desire to continue the EQE online in the future, there is a need and an opportunity to look at the contents of the EQE, within the constraints that an online format dictates, but also making use of the degrees of freedom that an online exam offers.

Sitting under invigilation behind a computer screen for more than 90/120 minutes is not acceptable. In an exam hall a candidate can stretch their legs or stand up for a while, but when under AI and camera supervision, the risk of being out of view is too high. It is not for nothing that online exams rarely take longer than 90 minutes.

This means that the complex papers that currently make up the EQE need to be split in parts. The challenge is to do that without bringing the standard down. 

Is Paper A the only way to test drafting? Is Paper D the only way to test giving legal advice? The answer is "No", but the questions are "how to do it then" and "where to start" and "what are the core competencies that need to be tested"?

An online format also provides advantages, questions can be split in parts, in a way that a first part needs to be answered and closed before a second part is visible to the candidate. We can have different sequences of the questions for different candidates, to minimise the risk of cheating. We can have machine corrected papers. And so on and so on. 

One these and all other points that relate to it, we seek your input and advice.

Of course it is easy to argue that the EQE worked well for the good part of four decades, but going back to massive exam halls, is not the way of the future. In 1979 the fax was a novel means of communication, we have moved on, our EQE candidates have moved on, and so should the EQE itself. 

In reply to Tiem Reijns

Re: the future of the EQE

by Hendrik Promies -
As I mentioned elsewhere I also think the EQE deserves a reform. However, I think the technology is not yet ready for online exams in the non-technical fields where the productive skills need to be tested and where the papers need a certain level of complexity in order to test whether a candidate can handle the complexity. Take paper A for example: 4 hours for understanding an invention and drafting a claim set is already a compromise which requires a lot of skill on behalf of those who create the paper, and I honestly cannot see how it could be done in 2 hours.

And I do not think that the numerous shortcomings of today's, often overpraised, digital technology should dictate what can and what cannot be tested. For modernizing the EQE, the approach needs to be the other way around: starting from the question "what needs to be tested" the proper tools need to be selected and, if necessary, created. Budgets should also not be a governing factor, plus substantial funds would be freed by not having to cater for the exam centers for the years to come -- funds which I expect to be invested in the examination software and its continuous improvement.

For example, it is completely unacceptable if the camera / AI solution does not allow a candidate to stand up (assuming that this is a real concern for the candidates; when I sat the exam people went to the toilet but otherwise remained seated even during the then 6-hour paper C, on chairs that were far from comfortable).

Since you made the point that candidates and technology have moved on: having access to automatic translators during the exam would be a real benefit of digital technology, regardless of where the exam is held.
In reply to Hendrik Promies

Re: the future of the EQE

by - Anonymous -
Venue of the EQE: Should candidates write all papers at home/ in the office monitored by AI and if no, what could be a suitable alternative? YES

Modular setup of the EQE: Should the EQE be held multi-level modular, with tests distributed over 1 year, with the first modules starting after 1 year of training? NO

Overall timeline: Should it be possible to take the final exams after 2 years of training and if no, what should the minimum be? 3 years

Multiple choice questions: Should the percentage of multiple choice questions be increased and a number of auto-correctable (correctable by AI) tests be introduced? NO, AI has nothing to to with "fit to practice"

Duration of the final exam: Should the final exam paper be reduced to a maximum of 2 hours and if no what should be the duration of the final exam paper? No changes needed

Resitting policy: Should the number of resits be limited and if yes how many resits should be allowed? 3 resits should be enough
In reply to - Anonymous

Re: the future of the EQE

by - Anonymous -
1. Venue of the EQE: Should candidates write all papers at home/ in the office monitored by AI and if no, what could be a suitable alternative? YES
2. Modular setup of the EQE: Should the EQE be held multi-level modular, with tests distributed over 1 year, with the first modules starting after 1 year of training? NO
3. Overall timeline: Should it be possible to take the final exams after 2 years of training and if no, what should the minimum be? No, three years.
4. Multiple choice questions: Should the percentage of multiple choice questions be increased and a number of auto-correctable (correctable by AI) tests be introduced? Yes
5. Duration of the final exam: Should the final exam paper be reduced to a maximum of 2 hours and if no what should be the duration of the final exam paper? No changes.
6. Resitting policy: Should the number of resits be limited and if yes how many resits should be allowed? 3 resists should be sufficient
In reply to - Anonymous

Re: the future of the EQE

by - Anonymous -
1. Venue of the EQE: Should candidates write all papers at home/ in the office monitored by AI and if no, what could be a suitable alternative?
NO; The exam should be held in proper examination centres, as before; it is very simple to cheat, if the exam is held without proper in person invigilation and I think this will devalue the exam and favor dishonest candidates; also it puts all the organizational burden on candidates; travelling to an exam centre is totally acceptable

2. Modular setup of the EQE: Should the EQE be held multi-level modular, with tests distributed over 1 year, with the first modules starting after 1 year of training?
NO, there should be a proper final exam, no need to make the exam easier than it was before

3. Overall timeline: Should it be possible to take the final exams after 2 years of training and if no, what should the minimum be?
NO, 3 years is a suitable period of training

4. Multiple choice questions: Should the percentage of multiple choice questions be increased and a number of auto-correctable (correctable by AI) tests be introduced?
Certainly NOT! This is supposed to be a professional exam, multiple choce questions are not reasonable for this type of exam; reform of the exam should not be focussed on simplifying matters for organizers and correctors

5. Duration of the final exam: Should the final exam paper be reduced to a maximum of 2 hours and if no what should be the duration of the final exam paper?
The duration should not be changed

6. Resitting policy: Should the number of resits be limited and if yes how many resits should be allowed?
The number of resits should be limited to 2 resits (i.e., three attempts)
In reply to Hendrik Promies

Re: the future of the EQE

by - Anonymous -
We fully agree to many point which have already been made above and would like to add the following:

1. Venue of the EQE: Should candidates write all papers at home/ in the office monitored by AI and if no, what could be a suitable alternative?

 Provided a suitable and reliable monitoring writing all papers at home should be allowable.

2. Modular setup of the EQE: Should the EQE be held multi-level modular, with tests distributed over 1 year, with the first modules starting after 1 year of training?

 Our main concern is that multi-level modular questions do not reflect the complexity of the real life work of a patent attorney. In addition, multi-level modular questions seem not to be adequate given that many issues which a patent attorney has to assess are not „black and white“ and need a deeper and more sophisticated approach (e.g. inventive step).

3. Overall timeline: Should it be possible to take the final exams after 2 years of training and if no, what should the minimum be?

 A certain experience in every day life situations which an attorney faces should be required before taking the exams. We believe that a minimum duration of three years before taking the EQE is adequate.

4. Multiple choice questions: Should the percentage of multiple choice questions be increased and a number of auto-correctable (correctable by AI) tests be introduced?

 We raise the same concern as under point 2.

5. Duration of the final exam: Should the final exam paper be reduced to a maximum of 2 hours and if no what should be the duration of the final exam paper?

 Again, we have major concerns that the complexity of the final exam if reduced to 2 hours duration cannot reflect the complexity an attorney faces in real life. Given that an attorney has to concentrate for a much longer period of time and react fast and focused about complex subject matter (e.g. in oral proceedings), we believe that reducing the duration to 2 hours seems inadequate.

6. Resitting policy: Should the number of resits be limited and if yes how many resits should be allowed?

 Without resists many candidates take the EQE without being properly prepared which increases the overall workload of the candidates (having to prepare several times) as well as the work of the examiners. Introducing a maximum number of resists would therefore be suitable in our eyes.

RGTH
In reply to Tiem Reijns

Re: the future of the EQE

by - Anonymous -
1. Candidates should have a free choice between online and face-to-face examination.
2. Ultimately, it is crucial that a certain level of competence is demonstrated. Therefore, all examination modules should be able to be taken by a candidate at any time and as often as desired.
3. It does not matter how long one prepares, but that one proves competence by means of an examination. Therefore, no minimum lead time before the exam.
4. no comment
5. no comment
6. there should be no resitting limit. If someone passes the exam, they have proven their qualification. It does not matter how many times or how long it took him to achieve this.

When one considers that any lawyer - no matter how bad - is allowed to appear as a representative before the EPO, and when one also takes into account the now barely tolerable poor performance of the EPO examiners, it is hard to understand why one would want to maintain such a high standard at the EQE. It is a morbid system when candidates are selected primarily on the basis of time pressure rather than content and knowledge.
In reply to - Anonymous

Re: the future of the EQE

by - Anonymous -
1. Venue of the EQE: Should candidates write all papers at home/ in the office monitored by AI and if no, what could be a suitable alternative? both options should be available (at home/office or present in exam room)
2. Modular setup of the EQE: Should the EQE be held multi-level modular, with tests distributed over 1 year, with the first modules starting after 1 year of training? no
3. Overall timeline: Should it be possible to take the final exams after 2 years of training and if no, what should the minimum be? 3 years
4. Multiple choice questions: Should the percentage of multiple choice questions be increased and a number of auto-correctable (correctable by AI) tests be introduced? no
5. Duration of the final exam: Should the final exam paper be reduced to a maximum of 2 hours and if no what should be the duration of the final exam paper? exam a currently done is good
6. Resitting policy: Should the number of resits be limited and if yes how many resits should be allowed? 3 resists
In reply to Tiem Reijns

Re: the future of the EQE

by - Anonymous -
Comments to e:EQE Discussion Paper
I. Preamble
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.
b. Supervisors
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.
c. Candidates
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.
d. Public
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.
V. Conclusion
 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.

G. Leißler-Gerstl