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?

EQE 2007 - the mystery 10 marks explained EQE 2007 - the mystery 10 marks explained Reviewed by David Pearce on Wednesday, September 17, 2008 Rating: 5


  1. The outcome is more than a little strange. Nearly everybody loses.

    Those who chose the "right" document and presented rubbish arguments, but enough to get to 40 marks [or 35 if compensable] passed thanks to the free gift of 10 marks. They will have the shadow of the the exam over them - did they deserve to pass or was it only the 10 marks that saved them.

    Those who chose the "wrong" document but made good, or even brilliant, arguments failed, unless they were annoyed enough to appeal and wait for over a year.

    The Examination Board has been castigated by the Disciplinary Board.

    The acid tone of the decision makes it clear that the Disciplinary Board thought the whole thing stank. Particularly telling is the comment at paragraph 6.3 querying motives (to achieve a statistically and/or politically acceptable pass rate).

    I suspect that the reason for the failure is that the procedure was rushed. The introduction of a shorter period between sitting the examinations and the promissed date for results places pressure both on the Committees and on the Board. It would be better to get a right result late, than a wrong result on time.

  2. Whatever the sense or otherwise of the outcome, the reasoning should be food for thought for UK examiners, too. In my experience (as a candidate and as a tutor), the concept of a "correct answer" is far too ingrained into several of the papers.

    The odd one out is the infringement and validity paper, but my experience of that is that the examiner's want too many answers. No matter how absurd those answers might seem, you have to show you've thought about it.

  3. Nearly everybody loses is a good way of putting it.
    Don't forget that the marks awarded or not awarded were complicated even more by the, debatable (to put it mildly) priority issue. This also cost marks if you got the "wrong" answer from the examiners point of view.

    Most people who've looked at it consider the examiners were wrong and the alleged priority destroying document was not for the same invention.

    So you could have good and justifiable lack of inventive step arguments, plus have decided that priority was valid, all of which would get you no marks.

    On the other hand you could have decided (probably wrongly) that priority was lost and presented attacks on that basis - marks gained. Plus poor arguments for inventive step but starting from the "correct" document. All of which would gain marks.

    Not a good argument for the level of expertise of the Examiners!

  4. As someone who failed in 2007 and passed in 2008 (thankfully), what incensed me at the time was the 10% boost to the marks.

    If you used the 'wrong' prior art, your mark could only reach the low 30's at best - the 10% was no help. So the 10% only served to pass those who happened to choose the 'right' prior art but then did a poor job of arguing their case.

    Thus the 10% simply compounded the examining boards error. I was not a happy bunny.

  5. I note the IPKat thinks that the outcome could result in someone passing who might justifiably have failed. However, it at least allows appealants the opportunity to prove (if they now score over 55) that they would have passed had the Exam Board not enforced their ridiculous marking scheme.

    There is of course, some considerable debate over whether the remark will truely be free and fair. Will the Board confine themselves to awarding a maximum of another 10 marks? If so, there should really have been an investigation into how they arrived at the value of 10...

  6. Someone (who would prefer to remain anonymous) emailed the IPKat to say:

    "It is a missed opportunity for litigation lawyers though. Being a typically ruthless and unfeeling litigator, I was rather attracted by the idea of a new line of challenges to privilege by invalidating the examination record, and thus the qualification, of the individuals concerned."

  7. A sad story all round but there is only one other thing that can be done now, then its water under the bridge.

    Everyone who sat the exam is due a formal apology, and a refund of the fee.

    Any bets on the chances of this happening?

  8. There is actually another thing that might happen.

    The Disciplinary Board or the President should refer the issue of whether all failing candidates of C 2007 should have their exams remarked according to the new standards set in the DB decision to the Enlarged Board of Appeals.

    Referrals to the EBoA are to be made in order to ensure "uniform application of the law". Now, since the DB has ordered in favor of the appellants and corrected a general misbehaviour of the Examination Board having consequences for all candidates, that seems to be precisely the situation here.

    Candidates can not be expected to be responsible for monitoring the Examination Committee and ensuring that the general marking policy is correct and not illegal. That can not be the idea of the appeal procedure (unless you of course want to establish a practice where each candidate is supposed to appeal all failures no matter the result of their first marking).

    The way I see it, the rights of all failing candidates have potentially (if they belong to the group that should have passed according to the new standards) been violated and the only way to make up is to remark their exams.

    Your opinions on this?


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