EQE 2007 - the mystery 10 marks explained

A little bird has informed the IPKat of a recent decision by the EPO Disciplinary Board of Appeal that casts some light on what went wrong with paper C of the 2007 European qualifying exam. As all candidates will know, the pass rate for this exam was substantially lower than for previous years. This was apparently at least partly a result of the examination board taking the (to some rather surprising) view that there was only one 'correct' document to start from as the closest prior art when considering an attack on inventive step. Starting from another document would therefore result in no points for the attack. The board later relented, and rather surprisingly awarded a blanket 10 marks to everyone who took the paper to account for their inability to foresee that another attack might be possible.  

Before the examination board did so, however, at least one candidate filed an appeal against the decision to award her a fail on the paper. She will, of course, by now already have had another chance at passing by retaking the exams earlier this year. The decision, therefore, is rather pointless for anyone who took and failed the exam in 2007, and is also a strong disincentive for anyone to think about appealing their results (particularly when the examination board will be changing for next year's papers). The decision does, however, have some rather interesting things to say about the examination board's approach in marking the paper, and why it was wrong in principle, including the following:

"The Examination Board itself recognised that the examination committees were wrong to award no points across the board in respect of a particular part of the paper [...]. However, awarding points for an (in the examination committees' and/or Examination Board's view) incorrect yet logical and, in keeping with the recognised practice, justified attack, is not just due practice but is also legally prescribed: under Rule 4(2) and (3) IPREE the number of points to be awarded for every paper (on a scale of 0 - 100) is based on how and to what extent "on the merits of that paper alone, a candidate can be considered fit to practise as a professional representative". This is not reconcilable with marking an examination paper as if it were a list of unrelated individual questions (as in a multiple-choice system) to which there is only one correct answer. On the contrary, the fit-to-practice criterion obliges the examiners in marking the individual parts of the answers not to disregard their merit in the context of the examination paper as a whole [...] and the need to allow for fair marking of answers which deviate from the scheme but are reasonable and completely substantiated [...]. This is something to which every candidate has a legal entitlement". (point 5 of the reasons)

The DB considered that the blanket awarding of 10 points was a violation of the law, and the EB acted beyond its powers (ultra vires) in doing this. The fact that no candidate was disadvantaged by this award did not offset the illegality of the measure, nor was it an appropriate way of offsetting the legal disadvantage incurred by individual candidates owing to a specific infringement of marking principles.

The DB decided that the appellant would be allowed to keep her extra 10 marks, because they had been awarded to everyone, but also ordered the examination committee to re-mark the paper and base its decision on the marking plus an extra 10 marks.

The IPKat thinks that, although the outcome is a little strange and could result in someone passing who might justifiably have failed, this is the only possible outcome that could have resulted once the DB decided that the EB had acted illegally. For those who didn't make it this year, the decision does provide some food for thought, particularly if anyone is considering (or has already filed) an appeal this time. Would it be worth the effort? Or is it better to simply have another go next time round?