A day late and a dollar short: EQE appeal outcome favours the brave

A respectable cohort of this blog's readership is made up of those who are training to qualify as European Patent Attorneys, while many more readers are qualified attorneys with a deep interest in the examination which governs this qualification, perhaps due to their activities in training or supervising trainees who will be sitting the European Qualifying Examination (EQE), or perhaps simply because they want the qualification to be a fair test of fitness to practice.

The strapline reads:
Because sometimes ... there
aren't second chances

Update: According to at least one comment below the Exam Board has changed the result of every candidate affected by having given the "wrong" answer to questions 15.2 and 17.3, not just those who appealed, for which the Board should be commended. 

The post below is mostly unchanged as the IPKat believes the points made about the unsuitability of the exam format for the subject-matter being examined, and the problems arising from undue haste in issuing and then reissuing results, are still relevant.

First of all, a health warning: the IPKat's knowledge of this story is based on a couple of accounts which may not represent the complete story, or the situation as it applies to all affected candidates. If any readers can add to this story, which is still at the breaking news stage, by clarifying, correcting or supplementing the understanding set out below, this blog post will be corrected accordingly. 

An anonymous correspondent alerted the IPKat yesterday to a development which appears to have favoured candidates who appealed a fail result. The timing of this development is unfortunate to say the least, leaving non-appealing candidates at a disadvantage and one day too late to file an appeal. Once alerted to the story, the IPKat found corroboration in a blog post by Laurence Lai on the IPCopy blog.

The issue is about the results for the pre-examination paper, which were sent out at the end of March. There was surprise and controversy over a few of the answers which the examining committee deemed to be correct in the official marking scheme. Indeed the official marking scheme was published, then changed and republished leaving candidates in confusion over whether they had passed or failed (see the comments on this blog post over at Delta Patents to watch as it unfolded in real time). 

The expert tutors in Delta Patents (whose training materials are widely used by candidates and whose exam preparation tutorials are very well-regarded) were similarly confused by the official answers. Shortly after the exam was held, they had published their own suggested solutions, but in several instances the answers they provided were deemed incorrect by the examination committee's marking schedule.

The deadline for appeals expired this week on either the 6th or 7th of May for most (but some candidates who received their letters more than ten days late could perhaps still appeal today or on Monday). Just yesterday (the 7th) the Examination Board apparently wrote to candidates who did appeal based in the answers to questions 15 and 17 notifying them that their result had been changed to a "pass", but without elucidating the reason for the change.

But what of those candidates who did not appeal? Well, unless the Examination Board has written to them also with happy news (and the IPKat has not heard of any such felicitous cases, but hopes they exist), they would now seem to be stuck with their fail grades. It appears that they too have had their results changed (updated following comments below).

"Fine," one might say in a logical but cold-hearted manner, "if someone is not unhappy enough to appeal, then they implicitly accept the decision. One can't complain about the outcome for others who pursued a remedy that one chose not to pursue oneself." That might be true if dissatisfaction was the only factor in deciding to appeal, but it ignores the financial reality that an appeal costs €1,200 and many of the candidates are not earning salaries providing that sort of disposable income, especially for a process whose outcome is uncertain.

Furthermore, if non-appealing candidates have no further recourse (and the IPKat hopes this is not the case), one really has to question the timing of the letters that issued this week. 

Did it really take two whole months for the Exam Board to conclude that there was an error which would require them to allow any appeals based on the error? And if the Board knew that it was obliged to allow such appeals, was it not incumbent on the Board to spread this news in good time, to allow other deserving candidates in the same categories the chance to appeal?

The IPKat also wonders whether the Board can still exercise the power to revise a candidate's marks according to Article 6(5) REE after the result has been notified, but suspects not:

Article 6

Duties of the Examination Board
[...]
(5) The Examination Board shall scrutinise the marks for each paper proposed by the Examination Committees and decide whether a candidate should pass or fail the examination. The Examination Board may revise candidates' marks or instruct the Examination Committees to re-mark their papers according to a revised marking sheet.

The IPKat is aware that the Board has had its knuckles rapped in the past for acting ultra vires when attempting to remedy problems with a paper, and is probably very careful nowadays not to stray beyond its remit. Such a knuckle-rapping happened in decision D 17/07, when the Disciplinary Board of Appeal made it clear that the correct response to an error that comes to light in a marking scheme is to re-correct the papers and that it is not permissible to simply award every candidate 10 bonus marks across the board. 

This Kat is also aware from his own experience on an examination committee how it can occur that candidates spot arguments or points that the entire committee missed when setting the exam. When he was on such a committee, the system was set up to catch those missed points while the marking schedule was still in draft and to re-mark every paper with such answers in mind (it may still work this way). Equally, he knows that candidates (often many candidates) will present arguments that appear attractive but which the entire committee will thrash out exhaustively before deciding that the answer is definitively wrong and should get no marks. When that happens, they can stick to their guns in clear conscience - exams are not an exercise in democracy among the candidates, after all. 

Yet those safeguards don't appear to be in place for the pre-exam, or if they are in place, they don't appear to be working well. This can be seen from the fact that the results were notified on a website then taken down and reissued, with some candidates getting a different mark twice on the same day, crossing the pass/fail threshold as the day unfolded. Even after this happened, the answers deemed correct were entirely controversial, as now appears from the allowance of the appeals. 

The problem of undue haste

This suggests that one part of the problem may be haste. The emphasis on getting results out quickly is fine until the integrity of the exam starts to suffer, and from the outside it looks as if the committee, Board or Secretariat could have done with being allowed a little more time with the announcement of this year's marks. The  Supervisory Board might need to look at the time given to get the results right.

However a bigger issue is probably the unsuitability of the multiple choice format to nuanced subjects like claim construction and novelty analysis. There's probably little difficulty in asking strictly legal questions in a multiple choice format, but when it comes to the claim construction questions which are at the heart of these appeals, one suspects that the examiners might not have made the same determinations on which answers were true and which were false if they'd had the benefit of understanding the reasons why a candidate chose the "wrong" answer. With a tick on a multiple-choice answer sheet, such reasoning is not evident to the examiner. 

If any readers, whether they are candidates or members of the Examination Board or Committees, can clarify the situation, their comments would be very welcome.