For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

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Thursday, 14 March 2013

Testing times for the EQE exam committees


The European Qualifying Examination (EQE) is inordinately important to Europe's IP profession, as it determines the standards required to practice as a patent attorney before the EPO. So Merpel's whiskers began twitching a few weeks ago when a few correspondents told her that the quality and integrity of this examination was under threat. Skullduggery was alleged, then it was loudly denied, and skullduggery is the one thing surely guaranteed to rouse Merpel from her customary slumber.

As her human agents tried to sort out the facts, recounted to them variously by anonymous informants and by others who identified themselves but asked for anonymity, passions ran high. In the end, Merpel believes there to be little dispute as to what actually occurred (and indeed it is well documented, the IPKat team having seen a variety of documents confirming what follows). Nevertheless there is a large measure of disagreement over why these events occurred, and even more disharmony as to what the events mean for the future direction of the EQE.

Although some parties asked her not to publish anything, especially in the lead up to the 2013 EQE, those exams are now over and next year's EQE is about as remote as can be. Furthermore, Merpel is reliably assured that there will be no changes to the format of the 2014 EQE.

Therefore, now appears to be an appropriate time for Merpel to share her version of events, and to provide her tentative conclusions. The story is not (in the view of Merpel and her team) a matter of confidentiality. After all, most of what follows is known already to a reasonably wide group, i.e. the EQE examination committees (ECs), made up of around 150 members. Or at least that's how many members were on the committees until very recently …

"You ain't reappointed."
Late last year, the EPO told 19 of its staff members who serve on the ECs (which set and mark the EQE papers) that they were being stood down and would not be reappointed on January 1, 2013. Both the decision not to reappoint these EPO employees, and the manner in which the action was taken, caused a great deal of upset and anger. While there has been a partial reversal (about one-third of the 19 have been reappointed) and while there has been an apology, feelings are still running very high.

EQE Committees - a brief synopsis

The EQE is jointly run by the European Patent Office (EPO) and European Patent Institute (the representative body of all European Patent Attorneys, which understatedly styles itself as epi). Overall direction of the EQE comes from the four members of the Supervisory Board. Below this, the eight members of the Examination Board control the direction of each year's examination. The actual work of setting and marking the papers is carried out by the 150 or so members of the aforementioned committees, the ECs, of which there are four.

On both boards, there is strictly equal representation from the EPO and epi (two each on the Supervisory Board, four each on the Examination Board). On the ECs, depending on whether or not one counts inactive members, the mix ranges from 50% to 65% epi versus 35% to 50% EPO members. These ratios, as well as every other aspect of how the exam system works, are set out in the rules governing the EQE, a Regulation known as the REE and its Implementing Provisions (the IPREE).

All members of the ECs are appointed by the EPO President upon nomination by the Examination Board for a two year term and it had been the established practice that members continued to be renominated every two years until they choose to retire from the committee or from their job - indeed some epi members have continued to serve long after they retired from active practice. EPO members who are appointed to Boards of Appeal and other senior positions usually retire at that point also.

Merpel is reliably informed that within the ECs, the interaction between those who work for the EPO and those who practice as attorneys often produces lively and constructive debate when setting the paper, when deciding marking schedules, and when marking scripts. She is reliably told that the balance and tension between the views of those who operate on different sides of the European patent system (the poachers and the gamekeepers, if you like) results in a much better, more robust, and higher quality EQE, and this interaction is one of the aspects that the committee members most jealously guard.

The fall-out

The removal of the 19 EPO members caused disquiet (to put it mildly) for several reasons, chief among which was that the move was unilaterally imposed by the EPO. There was no prior consultation with epi, who are equal partners in the examination system, or with the chairs of the four ECs, or indeed with those EPO employees whose committee membership was to be terminated.

While all of the EC members are regarded as valuable by their colleagues, what rankled particularly with EC members was that some of those not reappointed were already involved in the preparation of exam papers for future years. EQE papers are written largely by individual committee members, or by a very small group working closely together, who create the scenario on which each paper is based and typically write the complete first draft before handing their paper over to the larger committee to improve and road-test. Some of those whose appointments were not renewed were actively writing future years' papers.

Another grievance was the loss of institutional experience within the committees resulting from the loss of so many long-standing members at once. On this point, Merpel understands the argument that new blood is needed from time to time, but the internet (her entire source of medical knowledge, both real and metaphorical) tells her that complications can arise from massive transfusions in too short a period of time. In any event the ECs have received new blood most years as committee members retire and are replaced naturally.

Reaction to the initial non-reappointment came from different quarters in different ways. At an official level, epi immediately engaged with the EPO in a number of meetings. More unofficially members of at least two of the ECs wrote very strongly worded letters of protest at how the affair had been handled (these letters were seen by IPKat team members, one of whom was of a nervous disposition and is still recovering). The result was a partial reversal by the EPO with the reappointment of a third of those who had been taken off the committees, along with an apology and a promise to do a better job next time.  The reappointed members are understood to include all of those who had been actively involved in question setting, which some of Merpel’s informants believe rectifies the situation, whereas for others the reversal was insufficient to dispel the disquiet.

Merpel's analysis

Different people whom Merpel consulted ascribed wildly different motivations to the EPO's decision to reduce the level of participation of its staff in the ECs. Similarly, she heard diverse views as to what impact (if any) this saga will have on the future direction of the EQE. Faced with these conflicting accounts, here is what she thinks is happening.

Cats are not famed for long-term romantic commitments, and Merpel is at best an amateur student of human marriage. She has observed that when a married couple contribute jointly, but in individually different ways, to running a household or raising a family, grievances over who is contributing more (or which kind of contribution is worth more when they are of a different nature) can arise slowly and silently, yet erupt without warning.

Merpel thinks she knows what this story is really about
The EPO and epi are like a mature married couple who have been jointly looking after the EQE for 35 years now, and each has contributed in its own way. The financial  cost of the EQE is far in excess of the money raised from candidates' examination fees, and it is not borne equally. The EPO pays more towards the running of the exam, that much appears certain. What is not certain is how much it costs. Reading between the lines (or reading the lines themselves if one has seen the minutes of certain meetings), the EPO has clearly arrived at the conclusion that the EQE simply costs the EPO too much.

The contribution of epi is primarily the time its members spend setting and correcting examinations. That time is not measured, and no payment is made to the epi members for the work, which they do at weekends, in the evenings and by taking annual leave. Since no measurement is made of how much time epi members actually spend on EQE work, for accounting purposes a nominal rate is attached and a nominal amount of time is attributed.  The amount of time is deemed to be the same amount that the EPO allows for its own examiners and lawyers who are EC members to do their EQE work (EPO employees get a reduced caseload if they serve on the ECs). In both cases, many suspect that the allocated time is an underestimate of how long it actually takes to correct a batch of papers.

As a result, the figures produced by the EPO for the cost of the EQE are disputed by almost everyone Merpel has heard from - which in fairness does not include those who prepared these figures, though their views are welcome and will be published here if they wish to respond.

Without having accurate costs for all of the inputs to this complicated system, each party is liable to feel aggrieved that its own contribution has been underestimated or undervalued over the years. Given that we are discussing costs which run into millions of euros, it is baffling to Merpel that there is no agreement on how much it all costs, and surely one of the items that urgently needs to be done is to accurately audit the time spent and costs incurred by all involved?

Other suggestions have been made about reducing costs, and in this regard Merpel thinks some in the EPO may be guilty of raising bogeymen (you know the sort of thing: if we can't reduce costs one way, then we'll have to consider alternatives, and you'll like them even less …). Examples of these suggestions include holding the exam only in alternate years, or dispensing with the systematic double-marking of papers. Such suggestions have been made and rejected previously, and there is no sign that there is any appetite for such changes anywhere within epi.

Any far-reaching changes would definitely require amendment of the IPREE (which needs the agreement of the Supervisory Board), and in some cases of the REE (which needs the agreement of the Administrative Council). The view of those better informed than Merpel is that no such changes are on the cards and that if proposed, they would almost certainly fail to achieve agreement. So for now, the status quo remains.

So where does the EQE stand now? It would seem that the precise level of involvement of EPO staff over the next few years needs to be thrashed out between the EPO and epi, and that some certainty ought to be given to serving members as to their future tenure and the expected level of work required of each member of the ECs in coming years. What would probably be most welcome would be an official statement (from the EPO, or jointly from the EPO and epi) as to a definite roadmap for the EQE over the coming years, to lay to rest the wilder rumours that have done the rounds.

What has struck Merpel most about this affair is that even those correspondents who seemed to be most in disagreement within the profession were united by a genuine desire to maintain the EQE as a high quality examination, and to ensure that nothing is done to endanger the exam or diminish its standing.  Merpel hopes that this unanimous desire will assure EQE candidates that the present difficulties will not be allowed to impede the continued operation of a high quality examination.

38 comments:

Anonymous said...

Time, perhaps, for a more professional approach? By this I mean turning over the business to professional educators/examiners, such as universities. This is what has happened Downunder to a large degree. The profession still needs to be deeply involved (no university law department can teach the essential skill of drafting), but everything else can be satisfactorily handled. Some universities in the UK have law departments with excellent IP groups. These presumably also exist in other EPO contracting states. Perhaps there's a role they could play.

Anonymous said...

Perhaps the EPO could find some money for the EQE from its massive surplus. I'm sure the examiners would have survived without their 4000-euros-each bonus, which they didn't even want.

Meldrew said...

Anonymous at 16:10 suggested turning over the business to professional educators/examiners, such as universities.

Oh yes, that will work. It is well known that you do not need to know anything useful about any subject to be able to examine it. [Sorry, my sarcasm is showing].

I understand the "Downunder" experience is that when you abandon control of professional examinations to academics, you produce "graduates" who are of no practical use and require several years of house training to be useful, and more to the point, not dangerous.

The EQE is intended to test fitness to practice and the standard applied could be described as passing those who are not positively dangerous and holding back those who may be a danger to the public if let loose on their own.

For this purpose the current teams of examiners and attorneys do a good practical job.

If you want an examination that shows the candidates can find the relevant law but have no idea what to do with it - throw the EQE over to the academics.

Anonymous said...

The underlying and also a fundamental problem of the EQE is the variability of the Exam Papers en the associated changing results. If, say, 1000 candidates sit a D- or a C-Paper and the maximum score is 100 points (50 points = pass; 45 points = compensable), then one would expect:
- a Gaussian bell curve of which the peak each year lies approximately at the same position, and
- that the tail of the Gauss-curve reaches at least 90 points.
This is both not the case. And the explanation cannot be that the candidates of a certain year are better prepared than in other years.

There are years that a particular Exam-paper 'suddenly' scores bad and that the highest scoring candidate scores 'only' 70 points for, say, the D-Paper. This cannot be the case and should not be attributed to badly-prepared candidates (as is a frequently found criticism in the Examiners Reports). No, this is a fundamental problem of insufficiently maintained standards of quality.

The EPO- and the epi-members of the Examination Committees should strive to produce more equally-leveled Exam Papers and/or should level out the scores that the Gaussian bell curves from year to year reproduce with minor variations.

Meldrew said...

Anonymous at 19:49 suggests that exam results should fit a Gaussian bell curve. The Gaussian distribution is also known as the normal distribution. Patent attorneys are generally recognised to be "not normal" and so it would be a surprise if they did fit a Gaussian bell curve.

Additionally it would be a big surprise if the centre of the distribution remained constant. There will inevitably be a variation in intake from year to year and this should be reflected in a moving centre even if the exams were of absolutely identical difficulty from year to year.

As for the suggestion that the individuals who take the exam should be fitted to a predetermined Gaussian bell curve: that places mathematical aesthetics above practical reality, or indeed humanity.

It is just such tosh that gives me a jaundiced view of academics.

Anonymous said...

Having been both "poacher" and "gamekeeper" I believe that, if the EPO wishes to reduce costs, the EQE is definitely the wrong place. Ineptly represented applicants generate disproportionately more work at the EPO (both for formalities officers and for examiners) than aptly represented ones.
However, I must wonder if that's the whole story. It's no secret that some member states have long been complaining about the low passing rates among their candidates. Do such national jealousies play a role in the current events?

Anonymous said...

The EPO has tremendously good professionals and no lack of money. This is a disservice to them. One would think that all of that 'raising the bar' effort, the EPO would be the most interested party in having a high quality exam. And what is the EPO opinion on the internal staff who also take the exam and receive support in training and materials? Is the EPO also losing money with these candidates? Solution - Respect, common sense, professionalism.

Anonymous said...

No single fresh thought, sad ...

MaxDrei said...

I think UK readers should mull over how attorney training is done in Germany, and then mull over how strong the German influence is at the EPO.

About 98% of all those who train as a German national patent attorney pass the exams. If you learn the material, you can pass.

To pass, you have to go through the so-called Amtsjahr, in which you get schooled at the German Patent Office and Patents Court. They show you the ropes and teach you what is expected of a good attorney. Why should the firms bother to do any training when it comes free, in the Amtsjahr?

Later, in practice, you listen to the authorities who tell you, once again, what you get.

Why should the EPO add names to its list of representatives by any process other than this? Who is going to persuade them to select otherwise?

Personally, I think it a crying shame that UK influence wanes but waning it is, all over mainland Europe, everywhere you look. We all know why.

Anonymous said...

And what is the EPO opinion on the internal staff who also take the exam and receive support in training and materials?

Actually, EPO management does not appear to have much of an opinion on that. And support is not particularly forthcoming towards staff who take the exam. It's even sometimes rumoured to be something of a black mark in the path towards internal promotion...

Anonymous said...

I agree also with Meldrew that Anonymous at 19:49 should read Nassim Nicholas Taleb's "The Black Swan", and in particular his assessment of the inappropriate uses of the bell curve.
That said, there is no denying that there is some significant variation from one year to another in the difficulty of the exams, and in particular of the C part. But how could it be otherwise? It's quite impressive that the ECs manage to keep the current degree of consistency through the years, considering what they're tasked to do.

George said...

I have seen one of the complaint letters, sent by members of the paper D Committee. It was quite funny actually. Doom was announced if the expelled members were not to be reappointed. They just forgot to mention that the world economy would crash and a nuclear war would start if the EPO maintained its dreadful decision. Well, thanks to the partial reappointment, those terrible consequences have finally been averted.

Anonymous said...

From now on every new EQE candidate should sit the pre-exam, the stated aim of which is to weed out those who are ill prepared.

but it does mean more work for examiners...................

Anonymous said...

RE: Friday, 15 March 2013 09:34:00 GMT

Finally, one interesting comment

Anonymous said...

General consensus amongst those who sat this year's pre-examination paper seems to be that it was in places quite ambiguously worded, which of course poses difficulties when faced with a "T/F" choice and there is no opportunity to present a reasoned argument.

Might it cynically be suggested that the real motivation for the pre-exam was not to improve the quality of the EQE candidates, but instead to shift most of the D1 material into an exam which can be marked by computer without the need for human input?

I'm sure it's a coincidence that this results in an overall reduction in time and effort for the EPO in marking the papers while also providing another source of fee income.

Anonymous said...

"To pass, you have to go through the so-called Amtsjahr, in which you get schooled at the German Patent Office and Patents Court. They show you the ropes and teach you what is expected of a good attorney. Why should the firms bother to do any training when it comes free, in the Amtsjahr?"


And it is free to the Office, and free to the firms taking the trainees, and yet is a burden and cost to the aspiring attorney.

And why should any professional, who has already completed a university degree and most likely a post-graduate qualification, both of which will have left him in debt, embark in his mid to late twenties on a career where he (or she) has to spend a year giving his labour for free, incurring living expenses and receiving no income during that period? Had that been the prospect for me, after a degree, a PhD and a year in industry, at the age of 27 and with no independent means, I would not have been able realistically to consider joining the profession. Luckily I was in the UK, where no such requirement exists, and I was paid to train and now consider that I have well repaid in time and effort and turnover the partners of my employer for the costs incurred, and a premium for the risk in taking me on. The burden of the Amtsjahr is even worse for those who have families, or for those who of biological necessity are considering when to start one. Bad idea, I think. I wonder what the gender/diversity/social class ratios are like in the German profession?

Anonymous said...

Anon 12:57 - it may be coincidental but there are very few female partners of German IP firms.

Anonymous said...

Anonymous wrote
Anonymous said...
'Perhaps the EPO could find some money for the EQE from its massive surplus. I'm sure the examiners would have survived without their 4000-euros-each bonus, which they didn't even want'

Or amend their ridicously generous 'internal tax system'

MaxDrei said...

Anonymous surmises that the Amtjahr is affordable only to those from a privileged background.

Not so. In Germany you get a job in a patent attorney firm only if you have excellent English (OK, Globish) language skills. There is "still) loads of translation work available, translating high level and esoteric patent applications into German, and very few people able to do it competently. Nobody on the Amtjahr (now just 8 months) need go hungry.

Perhaps my first contribution above could have been more felicitously phrased. So I will try again.

My first point is that "training" in Germany is done on you by the Patent Office and the court. Nobody trains you to be a good attorney, understanding the business interest of your client, and putting that higher than the interests of your employer or the Patent Office? Now that is a shame. But it also presents a great business opportunity for the British patent professions.

My second point is that few on the mainland understand the zealous advocacy of the British attorneys. They see them as needlessly obstreperous, and as trouble-makers. Can't the Brits do a better job of explaining how they see their task as an assiduous "representative" of a client? It is necessary, believe me.

Looking at it from the other direction, Brits and Irish are the only EPA's who function in only one language. All the others operate in at least two languages, many of them more than two, so they know how much meaning gets lostv when jumping from one language to another. Take any international legal forum. Every lawyer speaks in English. Everybody understands everybody else till it is time for the British lawyer to speak. In all probability, nobody will be able to follow his speech.

Anonymous said...

MaxDrei

(generalisation alert:ON)
I believe it starts with the generally held idea in the UK that there is a natural right for an inventor to protection. This right should be vigorously defended, the burden is on the authorities to show why protection is NOT granted.

On the continent the concept seems to prevail, in graduations, that a patent may be granted by the authorities if the applicant proves he meets certain requirements, placing the applicant more in a dependent position, proving that his invention is worthy of protection.

David said...

In my opinion, university assessed courses are'professional' only in terms of making money for universities and guaranteeing that 95% of candidates pass (perhaps by lowering difficulty and quality).

A university system effectively dismantles effective informal training methods (such as CIPA lectures, tutorials and the epi EQE courses) and replaces them with a course which is considerably more expensive (to candidates), but has the marked advantage (and disadvantage) that almost everyone passes.

Universities never run courses with a 40-50% pass rate. Regarding best practice and bell-curves ensuring consistency, one only has to look at the inflation in GCSE grades over the years side by side with the drop in quality/difficulty of the exams.

My understanding from recruiters in Australia is that firms there can no longer assume a 'qualified' candidate even has basic skills. This makes the interview process much more difficult and puts undue emphasis on the firm where one trained. In contrast in Europe it is possible to overcome starting at a 2nd or 3rd tier firm, if you pass the EQEs on first attempt.

I would also point out that some Singaporean patent agents tend to look down on the Australian qualification and consider it 'worthless', or something akin to the QMW course; certainly inferior to the Singapore examination. That may not be the case, but I have heard it enough times to say it is not an uncommon view.


For UK and EQE, not only does the qualification guarantee a certain quality; you can also get at least some sense of a candidate's ability by seeing how many years they worked before passing and many failed attempts were made.

Anonymous said...

> Universities never run courses with a 40-50% pass rate.

I seem to remember being told when entering the profession (about 7 months ago now, so watching the discussion of the examinations with great interest!) that Oxford University had just made their trademarks course considerably harder after noticing that there was a course at the university with a 95% pass rate, and deciding that if someone wanted a qualification from Oxford they should damn well work for it.

Ron said...

The UK's adversarial approach probably has its origins in pre-1977 Patents Act law and practice, under which the applicant was given the benefit of the doubt. As I can attest from personal experience of being an examiner under the Patents Act 1949, applications were seldom refused outright, and as examiners could only raise novelty objections, adding a trivial feature to a claim would generally provide a scintilla of novelty. Conversely, German national patent law had an "inventive height" requirement, so adding a scintilla would be unlikely to get you anywhere.

When I was subsequently an EPA in industrial practice, my employer acquired a German company, and being one of two attorneys with a reasonable command of German (we do exist!), I oversaw a considerable number of German national patent applications.

Consideration of the case files indicated a highly deferential approach by the original in-house German attorneys who had been prosecuting the EP applications, the approach normally being to do what the examiner wanted, generally resulting in narrower protection than I would have gone for. Rather like the EQE amendment paper! Of course, there may have been good business reasons for this, as in that technical field what usually mattered was the number of patents you had when negotiating cross-licences, rather than the strength of individual patents.

On the other hand, when reviewing the file wrappers of various competitors' German patents I did come across some prosecutions where the German attorney had been extremely argumentative, generally where representing US applicants.

Anonymous said...

I must agree with Max. The contribution of our external German agents to our business is pathetic. I read and listen to their nonsense in utter disbelief. Their ineptitude is only matched by our UK agents.

Anonymous said...

European (ie non British) attorneys simply believe they work for the patent office, while us Brits understand we are working for the client who is paying the bills. The world only needs a single language so let's not waste our time discussing the irrelevant ones. My brain has no time for such useless information.

Anonymous said...

Re Oxford Univ. comment: "they should damn well work for it". Funny. I'll send a £1 to Comic Relief.

Anonymous said...

RE: "Universities never run courses with a 40-50% pass rate."

Which university do you refer to? I shouldn't send my children there...

Just checked a pass rate for the university where I study. Their policy is between 40% to 70% depending on subject.

612 said...

I have been thinking about this EQE examination and noticed that
everybody is concentrating on the marking and organization of EQE, but
there are some issues there, which would be very difficult to overcome
in practice.

So maybe a different angle on the question could be considered.

For example, EPO + EPI could consider using the experience of universities in the fields where
there are more candidates than places for study.

Namely to introduce the numerus clausus for EQE candidates per year
by setting a limit for an amount of candidates which can be hired by
a law firm (or: in-house IP department) per year. The limit can be base on the amount of applications
the law firm (IP department) needs to handle, or more complex dependence can be established there.

So, for example, the law firm can hire X candidates per year, using any it considers important/necessary
tests/requirements. The firm can train all of them or fire all of them :-), as being not fit to be a trainee.
The idea is that the firm can hire only X people as trainees per year (X can be also 0.5 :-).
There should be a register to register trainees, wherein trainees' 3 years will be counted at the same time.

So, everything would run as a law faculty with the numerus clausus,
but "students" would be "located" at law firms/IP departments…
And after 3 years in the register the trainees could sit the EQE, according to the rules as now.

Actually, this system is also more close to the way EPO hires its staff.

I see the following advantages:
- law firms would be directly interested to select "right" candidates from very beginning,
and, subsequently, train them so that they qualify eventually;
- that would reduce long-term uncertainty for EQE candidates, which is quite an issue for high educated trainees;
- that would make THE LIST shorter :-)
- it seems to be so European to me

One additional article to REE and two rules in IPREE would be enough to implement Saturday thoughts.

Anonymous said...

The world only needs a single language so let's not waste our time discussing the irrelevant ones.

Good luck learning Chinese, then.

My brain has no time for such useless information.

And yet my clients find quite useful when I can understand some foreign-language reference, especially when it is helpful for arguing against its relevance as prior art. That generally works better than being obnoxious towards the examiner...

As I can attest from personal experience of being an examiner under the Patents Act 1949, applications were seldom refused outright, and as examiners could only raise novelty objections, adding a trivial feature to a claim would generally provide a scintilla of novelty

Actually, that sounds very much like current French practice, and yet French attorneys don't have a reputation for being particularly adversarial. I rather think that there are four different factors at play:

a) General culture: Some countries simply have a more confrontational debating culture than others. Britain is up there among the most confrontational (witness Prime Minister Questions), but is not alone there. In my experience, Dutch patent attorneys can also be particularly assertive.
b) Type of client and work: British patent attorneys are more likely to be representing an overseas client. That gives them less wiggle room in prosecution, both because of the instructions they get, and because the application wasn't necessarily drafted with the EPC in mind.
c) Education: Again, in my experience, the less confidence a patent attorney has in his understanding of the law, the more deferential he is going to be towards the EPO. Britain, Germany and France, as well as several Northern European countries, have very good systems in place to educate and select aspiring patent attorneys. This is however not the case across the whole of Europe.
d) Money: If your client hasn't deep pockets (or dislikes digging into them), he may prefer to settle for a quick grant with a restricted scope of protection than to enter a long and expensive fight with the examiner to try to get a slightly broader protection. The cost pressure right now in much of Europe is quite high, with some clients asking for flat fees for the whole examination procedure. This of course doesn't encourage the local attorneys to be particularly argumentative towards the EPO.

My personal opinion is that, while the attorneys must fight their client's corner, they should also be clear and honest with their clients when they are in a bad position and should rather cut their losses. Above all, they should be respectful and keep in mind some cultural differences: what may pass as good-tempered teasing in London, may well cause mortal offence in Munich, never mind Madrid. Acting like Basil Fawlty is definitely not in your clients' interest (especially not when your client has a large number of applications running, applications for which the examiners may well decide that Oral Proceedings are in order, if only to get a better appreciation of your special brand of humour).

Finally, anybody who argues that German patent attorneys are "deferential" or "non-confrontational" has definitely not been confronted to any of them in opposition proceedings...

Anonymous said...

"And yet my clients find quite useful when I can understand some foreign-language reference"
Yeah, sure, really useful.

If you think Chinese will overtake English in the foreseeable future then you want to go see a head doctor.

Big assumption that an attorney who procures a translation can only be obnoxious to an examiner.

Get over it! Whatever 'it' is.

Ron said...

Last year a speaker at a seminar about doing business in the far east mentioned the large numbers of Chinese that were learning English, and estimated that in 15-20 years' time, China will have the world's largest number of English-speakers.

Anonymous said...

Ron, you must have mis-heard. It will surely be French and German they are learning.

Ron said...

Definitely English. Confirmation comes from a Chinese student at my son's university, who said that anyone wishing to take a holiday in China would be able to finance it by tutoring at language schools, where they are crying out for native English speakers for their students to practice on. No knowledge of Chinese necessary!

Anonymous said...

Well, unlike some xenophobes in this thread, the Chinese are apparently clever enough to recognise the importance of learning foreign languages (not just English, BTW).

Anonymous said...

Accusations of xenophobia followed by such a sweeping statement. What a contradiction.

In any case, the simple fact of the matter is that English is the only international language. Like I said, get over it.

Ron said...

I was fortunate enough to have benefitted from an education at a state grammar school in East London the 1950's when, by the time I was 13, I was studying French, Latin and German. For those wanting more challenge, lunchtime classes in Russian and Mandarin were offered to "O" level. Great emphasis was placed on getting the intonation correct. Things are very different now.

I added Spanish about 10 years ago, mainly because we started going to Spain for holidays, but I did use it professinally to access the Mexican Patent Office on-line database. Having a working knowledge of both French and German has cerainly been an advantage when reviewing citations in those languages, but when you are at school, it is not possible to know which languages are going to be useful in the long term (I could have taken Spanish instead of German, which would have been much less useful).


A German Patent Attorney of my acquaintance once told me that he had spent some years in South America and spoke fluent Spanish, but had never had to use it subsequently.

From conversations with fellow students on the "Strasbourg" EQE course some years ago it was evident that most of the French found German impossible, and most of the Germans found French impossible, but both could get on with English, no doubt because English has its roots in both languages.

Anonymous said...

As Ron has come clean, and being the accused xenophobe who believes his accuser should 'get over it', I must admit to having learnt a foreign language at school (plus a little Latin) and another language later in life. Both have never been used in professional 'anger' and are thus pretty useless. I have in the past also been known to learn a little of the local lingo in advance of my travels.

I now spend my free time learning things of use to my job and do not feel any need to learn another language in a vain attempt to feel superior to little Englanders

O. said...

Yesterday's article at IPKat (on an entirely different subject) makes me think about one idea that could, potentially, have some positive influence on eqe.

I was thinking about Art. 134(1):
(1)
Representation of natural or legal persons in proceedings established by this Convention may only be undertaken by professional representatives whose names appear on a list maintained for this purpose by the European Patent Office.


It seems that allowing 3-year-trained trainees to be mentioned on official communications, for example of R. 70a, while still being not entitled in the sense of EPC, would make eqe stronger and more competitive.

The are many arguments for. The main argument is that a trainee after 3-year training might not have all needed qualification to represent independently, but might be good enough, due to, mainly, technical background and, also, 3-year experience, to provide a core component of a patent - novel and inventive concept.

Since novelty and inventiveness of a patent are not
uniquely/unambiguously defined, but constitute a clever balance of a technical contribution, language, and knowledge of potential competition, it seems to be reasonable to keep a focus on this core component, and thereby bring eqe to a competition of technical competence + commercial intuition.

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