Controversy looming for this year's pre-EQE

The pre-examination European Qualifying Examination ("pre-EQE") was introduced in 2012 as an entrance exam to the main EQE for European Patent Attorneys. Only after passing the pre-EQE is a European patent attorney trainee allowed to enroll for the Main Exam. 

Controversy over the pre-EQE is not new. In previous years, candidates have successfully appealed to the disciplinary board of appeal (DBA) against their result on the grounds that the answers to some of the questions were ambiguous (D3/14). 

This Kat has been alerted to the fact that, this year, the questions for the pre-EQE were particularly ambiguous, setting the stage for the greatest pre-EQE controversy so far. 

UPDATE: The pre-EQE results have now been released, see here.  
The Examiner's report can be viewed here. 

2018 pre-EQE

The pre-EQE

The pre-EQE is a multiple choice exam, with 20 questions, each question having 4 statements for which candidates must indicate true or false. A complicated marking scheme dictates that for each question: 4/4 = 5 marks, 3/4 = 3 marks, 2/5 = 1 mark, and 1/5 = 0 marks. The complicated mark scheme highly rewards getting all of the statements within a question right, or equivalently, heavily penalises one mistake in a question. The pass mark is 70/100. 

The paper is divided into two sections, legal questions and claim analysis. The claim analysis section deals with issues of clarity, added matter, novelty and inventiveness with regards to a series of claim sets, amendments and prior art documents.  

It may seem odd to those used to EP patent application prosecution, that claim analysis may be reduced to mere true or false statements. Deciding on the closest prior art and inventiveness without the opportunity to argue your point can feel, at times, unfair. At the very least, it is hoped that the issues presented in the exam should be fairly clear-cut and unambiguous. 

To complicate matters, the pre-EQE may be taken in English (EN), French (FR: "Examen préliminaire") or German (DE: "Vorprüfung"), for which there are corresponding versions of the paper. It is intended that the answers to the EN, FR and DE papers are identical. 

Every year, DeltaPatents provides their model solution to the pre-EQE (EN version) before release of the official mark scheme. In recent years, the German Plattform für den Gewerblichen Rechtsschutz (GG-IP) has also been providing model solutions (DE version). It has become customary for candidates to check their solutions with these model answers before the release of the official mark scheme and results. In 2017, the DeltaPatents solution was identical to the official solution.

Controversy

Given the subject-matter and format of the exam, it is perhaps not surprising that the pre-EQE has already been beset by controversy. In 2015, following successful appeal by a candidate to the disciplinary board of appeal (DBA), the EPO published an Addendum to the 2015 pre-EQE, in which it was decided to a award marks for either True or False for 2 statements in Question 15 and 17 respectively. After some initial uncertainty, the marks of candidates who did not file an appeal, but who would have passed in light of the changes, were upgraded (IPKat here and here).

This year

The 2018 pre-EQE (EN, FR and DE) took place at the end of last month. This Kat has been alerted by colleagues to a worrying disparity between the solutions provided by GG-IP and DeltaPatents this year. Particularly, the GG-IP and DeltaPatent model answers differ on 5 points, corresponding to an alarming 10 marks (out of 100), (for comparison, last year's GG-IP solution differed from the DeltaPatents solution on 2 statements, corresponding to 4 marks out of 100). The complicated mark scheme of the pre-EQE causes ambiguity in a few statements to have a disproportionately large impact on a candidate's marks. The official solution has not yet been released. 

The disagreement was in regard to the answers to questions 11.2, 12.4, 14.3, 16.1 and 18.1. 

Pre-EQE 2018: Water filter lid

All of these questions are also highlighted as problematic in the DeltaPatent pre-EQE blog, and from a quick analysis of the paper, this Kat agrees that the answers to these questions are not clear cut (at least in the EN version). Q12.4, for example, relates to Article 84 EPC (clarity) and asks whether a feature of a claim simply claims a solution to a problem and not the technical features that provide this solution:

"...a counter configured to automatically increment in response to water being added to the jug"

DeltaPatents thinks no, Article 84 EPC is not contravened, whilst GG-IP thinks that it is. This Kat notes that somebody involved in the prosecution of European patent applications, might expect the EPO to reject such a claim, but that the Examiner may be persuaded by argument. 

Q16.1 relates to claims directed to a plurality of interrelated products. GG-IP concluded that 2 independent claims (a 1st claim directed to a filter lid for a water jug and a further claim directed to a jug with a filter lid), are interrelated products, whilst DeltaPatent believes that they are not. 

Worryingly, still further issues with the claims have been raised in the comments on the DeltaPatent blog (that do not even correspond to the differences between Delta and GG-IP answers). A particularly problematic question, according to DeltaPatents itself, is Q 12.2 which concerns the correct two-part form for a claim in view of a stipulated prior art document. 

The DeltaPatent and GG-IP bloggers are experienced European Patent Attorneys and tutors. The disparity between their solutions clearly demonstrates that the claim analysis section of this year's pre-EQE is far from unambiguous. 

Kat confused by claim analysis

Whilst the solutions to the EN, FR and DE versions of the paper should be identical, translation issues can lead to different interpretations. Indeed, according to D 1/94 a translation error may be considered to contravene Article 11(3) of the Regulation on the European qualifying examination for professional representatives (REE) "since this provision assumes that the translation from the language selected by the candidate into one of the official languages of the EPO is totally correct". However, such a magnitude of issues with this year's paper suggests this is not just a translation problem.

This Kat has been unable to find a model answer for the FR version of the paper, but feels this would be a useful comparison. 

As a gateway to the main EQE, passing the pre-EQE is of considerable importance to a trainee European patent attorney. A fail means a candidate must wait about another 2 years before they can take the Main Exam. The degree of ambiguity in this year's questions will thus be causing significant anxiety. 

The official pre-EQE marks scheme and results will be published in the coming months. Stay tuned to IPKat for further news. 

Author: Rose Hughes