Quo vadis EQE? Reform of EQE – digitalisation or lowering the bar?

G. Leissler-Gerstl (DE), C. D. Schober (DE)

A Summary

• A draft concept for the e:EQE is expected to be issued soon and discussed at epi Council meeting in autumn 2022 (C93). We hope that the results of the June 2021 conferenceSee report on the conference on modernising the EQE to better test “fitness-to-practise” by Julia Gwilt, with Emilie Blanche and Graham Murnane (https://www.epi-learning.org/pluginfile.php/4857/mod_resource/content/13/eEQE conference report - epi information.pdf). and the following considerations will be taken into account in the draft.
• The experiences from EQE 2021 and the respective tutor meeting in October 2021See tutors' report on the EQE 2021 papers and the meeting between tutors and EQE committees by N. Cordes, L. Ferreira, A. Valborg Guðmundsdóttir, A. Hards, J. Hoekstra, H. Marsman, and R. van Woudenberg (https://information.patentepi.org/issue-4-2021/tutors-report-on-the-eqe-2021-papers.html). should not be disregarded as a guideline for the practical set up.
• The digitalisation shall not lower the standard and thus diminish the valuable reputation of the qualified representatives before the European Patent Office (EPO).
• Therefore, the digital form of the examination must be adapted in such a way that the level of examination and the complexity of the examination papers are preserved.
• Any modular approach must take into account the influence on practical training by supervisors in law firms or companies.
• The future of the profession is worth to allow thorough and intensive discussion with the stakeholders but not changing the examination in a hurry.
• The aim should be to subject the candidates to a contemporary examination that does respect to the professional representatives' established reputation applying the wise rule: quidquid agis, prudenter agas et respice finem (Whatever you do, do it wisely and consider the end).

B What has happened so far?

The format of the European Qualifying Examination (EQE) has changed a lot over the years. In the beginning, one had to pass all four papers in one go; if one failed in one paper, all papers had to be written again. All three languages of the EPO were used, in particular, in papers B and D prior art in all three languages was cited, no translation was available, no dictionary. It was a closed book exam, only the texts of EPC and PCT were allowed. After some years, a modular approach was introduced, but with predetermined timeline. Nowadays, papers can be written in any order, every pass remains in force, only one language is enough, any book can be used.

The COVID-19 pandemic was a driver for change and encouraged the introduction of a digital examination, which was held online in March 2021 for the first time. It is envisaged that the EQE in 2022 and 2023 will have substantially the same structure.

The implementation of the digital form of EQE is thanks to the e:EQE working group which was established by the EQE Supervisory Board in April 2020. The e:EQE Working Group is composed of three representatives of the EPO's Examination Secretariat and three representatives of epi, the latter appointed by the President of epi. To support the epi members in the e:EQE working group, the President of the epi has created a Digitalisation Support Group (DSG) composed of members of the Professional Education Committee (PEC) and experts in the field of EQE and online exams. The main task of the e:EQE working group was not only to set up and run an online EQE in 2021, but also to lay the foundations for the future EQE, the so-called e:EQE.

A Position Paper on the e:EQE was presented at the epi Council meeting in November 2020 (C89)See an epi update about the progress towards a future e:EQE by J. Gwilt (GB), Chair of the PEC (https://information.patentepi.org/issue-3-2021/an-epi-update-about-the-progress-towards-a-future-eeq.html).. A Discussion Paper was presented and briefly discussed at the epi Council meeting in May 2021 (C90)See e:EQE - Discussion Paper (https://information.patentepi.org/issue-2-2021/eeqe-discussion-paper.html). On the initiative of the German delegation of Council members, a video conference on modernising the EQE to better test "fitness-to-practise" organised by the PEC took place in June 2021 with more than 100 participantsSee report on the conference on modernising the EQE to better test “fitness-to-practise” by Julia Gwilt, with Emilie Blanche and Graham Murnane (https://www.epi-learning.org/pluginfile.php/4857/mod_resource/content/13/eEQE conference report - epi information.pdf).. At the November 2021 epi Council meeting (C91), an update was given on EQE 2022 with regard to candidates' use of the WISEflow platform and the announcement that previous papers would be analysed to identify the criteria to be examined.See report from the 91st Council Meeting held by videoconference on 13th November 2021 by M. Névant (https://patentepi.org/assets/uploads/documents/epi-reports/211113_C91_Report.pdf).

A draft concept for the e:EQE by the e:EQE working group is expected to be available soon and presumably will be presented and discussed at the epi Council meeting in Autumn 2022 (C93). We hope that the valuable results of the June 2021 conference and the following considerations will be taken into account in the draft.

C Why is an intensive discussion with the stakeholders indispensable?

It seems that no in-depth and representative survey was conducted after EQ 2021 to identify problems and inconveniences. At least only a rather vacuous survey is available.See eEQE 2021 Context and feedback from participants vis-à-vis digitalisation (https://www.epi-learning.org/pluginfile.php/4334/mod_resource/content/4/02b_eEQE - Context and feedback from participants.pdf).

Since the reform of the EQE will have many implications for the training and preparation of candidates, for the reputation of the examination and professionals and for day-to-day work, etc., it is highly desirable that any revised version, before being submitted to the Admin Council, be presented, discussed and voted at the epi Council.

It would also be unfortunate if the many comments made at last year's conference and in chats were not taken seriously.

D What needs to be discussed in detail?

Taking into account the results so far, it seems that there are five main aspects that require a thorough and well-prepared discussion:

• What does “fit to practise” actually mean?
• Content and duration of the papers
• Place of the exam
• Timing of the modules
• Proportion of multiple-choice tasks / evaluation by artificial intelligence

I. What is understood by “fit to practise” actually mean?

According to Article 1 of the Regulation on the European qualifying examination for professional representatives (REE), the EQE is designed to establish whether a candidate is qualified to practise as a professional representative before the EPO. Therefore, it seems necessary to discuss what do the public, clients and EPO expect from a professional representative, before discussing if EQE does adequately test the necessary knowledge and skills.

Following success at the EQE, a candidate is entitled to be registered on the list of representatives and, consequently, is allowed to represent clients before the EPO. It is of fundamental importance for our profession that the public can trust that someone who is on the list has the skills, not only to receive applications or instructions and submit or transmit them to the EPO, but also to draft, file and prosecute applications, analyse documents, prepare legal opinions, and handle oppositions and appeals. In particular what can be expected from a representative is that she/he is able to understand and apply the legal framework, in particular EPC and PCT; to understand technically the object of an invention reported to them by an inventor; to abstract the inventive idea; to formulate claims protecting the invention and a description specifying the inventive features; to amend claims in order to distinguish the claimed invention from the prior art; to understand and reflect the content of official communications; to analyse prior art references and to identify relevant documents, e.g. in order to challenge the legal validity of a patent; to evaluate patentability over the prior art; and to provide arguments in examination, opposition and appeal proceedings. This is what the EQE should test. Therefore, not only knowledge about Articles and Rules should be tested, but also skills in solving complex cases. As experience shows, this cannot be achieved by 1.5 to 2.0 hour papers and answering multiple choice questions.

Although increasingly expected by some clients, especially from Asia, the work of a European patent attorney is not to carry the client's instructions to the EPO but a creative one by understanding an invention and also arguments by EPO and/or other parties, needs of an applicant or a third party, and drafting/amending/attacking claims to reflect those needs. This is not just about answering questions or choosing options. The European patent attorney is the one who gives the client the options to choose from.

From the beginning, it was, and is not, the task of the EQE to test the technical knowledge of candidates - because the existence of technical knowledge is certified by the technical grade that a candidate must show before being admitted to enrolment.

Hence, is lowering the bar of the exam an option, at all? What consequences would this have for the profession?

Although lowering the bar could raise the examination pass rate, many disadvantages would arise, such as:

• Decline of reputation of the profession over time
• Quality of work at risk
• Increase of work for Examiners because of incomplete understanding of objections and lack of adequate reactions.
• Increase of work for Examiners by more need for explanation
• Loss of trust by clients, public and EPO

Thus, it is important that the level of the EQE is not lowered and that the skills described above should continue to be tested in Papers A to D of the EQE. Only the format may change.

II. Content and duration of the papers

Although methodology courses are undoubtedly useful for candidates to learn how to handle papers, searching and finding keywords should not be the goal for passing the EQE. Rather, papers should be designed to test key competencies and, as a lesson from past exams, there should be less predictability and more variability.

1. The key competencies to be tested in Papers A, B, C, D1, and D2

Paper A tests the ability to understand and abstract the subject-matter of an invention from the information received, to formulate claims that cover all new and inventive features of an invention and are distinguished from the prior art. In Paper A, candidates have to draft an application with a set of claims that it is neither too broad nor too narrow.

Paper B tests the ability to understand official communications, analyse cited prior art documents, find distinguishing features, amend claims and present arguments in support of patentability. In Paper B candidates are required to respond to an official communication and amend the claims in response to the objections raised by the examiner and to the prior art cited by the examiner.

Paper C tests the ability to understand the subject-matter of a granted patent, to identify the relevant prior art and to substantiate the challenge to the validity of the patent. In Paper C, candidates must prepare a notice of opposition on the basis of information and documents provided.

Paper D1 tests the legal knowledge about the provisions of EPC and PCT.

Paper D2 tests the application of the legal framework of the EPC and PCT in a specific case and the ability to assess a complex case and give options for further action and advice.

Decades of experience teach that Papers A to D of the EQE comprehensively test the knowledge and skills that can be expected of a European patent attorney.

2. Reduction of time per paper

With the envisaged provision of only 1.5 to 2.0 hours of work, papers will inevitably be less complex and demanding, as only some arguments can realistically be provided. Above all, an opposition under Paper C is thus no longer meaningful to test.

The necessity of paper C has been discussed frequently in the past. The argument for omitting Paper C has been that many candidates have not yet drafted a real notice of opposition at the time of the EQE and that their supervisors may not have experience with a real opposition case either. However, knowledge of the grounds for opposition and how to draft a notice of opposition is very important for anyone drafting applications, as it shows what to look out for in order to amend claims and furnish arguments if an opposition or invalidity action is later filed.

Even with a new format of papers with breaks after 1.5 or 2 hours, it is still possible to draft an opposition paper or legal paper with corresponding complexity, for example by allowing access only to part of opposition reasons or questions in a first part of an exam, and access to further opposition reasons or questions, where the scenario is the same, in a second or further part of the exam.

The problem with reduced time per paper can be solved by conducting a digitised exam in test centres. There can be a change in the type of such centres. Why not use rooms in patent offices, in patent firms and patent departments, with supervisors as invigilators?

III. Place of the exam

A digitised exam, which can consequently be conducted online, certainly allows a move away from the pre-pandemic testing in test centres. Apart from the fact that this seems convenient at first glance, since many candidates do not have to travel to the test centresSee Benchmarker’s impressions: „No going back to exam centres!“ (https://www.epi-learning.org/pluginfile.php/4335/mod_resource/content/5/02c_Benchmarker (002)_PP.pdf)., the question arises as to whether the idea of conducting the EQE from home is really wise.

Although examination software, such as WISEflowSee https://www.uniwise.co.uk/wiseflow mentioned at the beginning of this article, has recently found its way into everyday university life with increasing frequency in order to automate a multitude of processes from the preparation of examinations to participation and examination viewing, the EQE as a legal professional qualification cannot be compared with simple examinations at universities. The recognised reputation of a European patent attorney already makes it impossible to measure EQE against conventional university standards.

It should therefore be discussed whether the exam should be taken online at a test centre or from home. Pro and cons of an online-at-home exam are summarized in the following table.

Although it is foreseeable that future candidates will be used to online examinations from home due to their university experience, the EQE requires special scrutiny in order to live up to the reputation of a European patent attorney in the future.

IV. Timing of the modules

Despite all the zeal for reform of the EQE, it should not be forgotten that an essential part of the education to become a European patent attorney is the practical training in law firms or companies. Less time for practical training is a disadvantage for all stakeholders - supervisors, candidates and EPO.

The motivation of a supervisor in a law firm or a company is usually to train qualified junior staff. However, operational concerns must not be neglected. The envisaged modularisation of the examination with the completion of a first module already after one year of candidate training and the possible offering of the modules more than once a year is certainly in the interest of the candidates, but in no way takes into account the legitimate operational concerns of the law firms and companies that train the candidates. When the exam modules are spread over many months, candidates will be permanently in an “exam mode” and will have less chance to practically work on files. In addition, they will need more support from supervisors for the different modules, or need more training courses. Moreover, there is another important aspect when changing the timing of modules - the capacity of the Examination Committees (EC). Changes in the timing as envisaged will multiply the work of the ECs. For example, offering modules every 4 or 6 months means to prepare papers every 4 or 6 months and to mark papers more than once a year. Who shall do this work? Meanwhile most of the EQE examiners or tutors are epi members, not EPO members, and have only limited free time to do this work. To find more examiners might be possible, but drafting all these papers cannot be done by new committee members. It is a task for experienced members who have already marked papers. Where will you find those members?

If papers can be written at any time, who will invigilate? Invigilators will not be available all year round. Shall invigilation be skipped for the first modules?

A summary of pros and cons for the envisaged change of timing of modules is provided in the following table.

V. Proportion of multiple-choice tasks / evaluation by artificial intelligence

Although a digitised exam might be seen as an invitation for more multiple choice tasks and automatic evaluation by artificial intelligence, a closer look shows that this is not appropriate because of the complexity of a "fit to practise" test. This form of testing is well-suited for pure knowledge tests and can be used in some part of the exam, especially in paper D1.

Smart papers are required, which can certainly be evaluated through the supportive use of artificial intelligence, but query whether the candidate is qualified to work as a European patent attorney. Such clever questions require immense know-how, which is currently available among the tutors. A reform that transfers the know-how from the tutors and thus from the epi to third parties, such as professional seminar providers or universities, is certainly not in the interest of epi.

As has been outlined many times, multiple choice questions (MCQ) can test knowledge but not skills. MCQ have nothing to do with real life. The work of a European patent attorney is a creative one, not choosing between options. For drafting, arguing, presenting arguments before a divison or board etc., it is not enough to know articles and rules and some strategical methods, but deep understanding of an invention, abstraction of inventive ideas, formulating claims that protect an invention etc. have to be created, articles and rules have to be understood and applied. This can neither be tested by MCQ nor by any kind of artificial intelligence.

Moreover, it seems so easy to test candidates by using MCQ, where a computer can do the “marking”. However, it is not the case, as the MCQs have first to be created, which is a heavy burden. In the present format of the pre-exam, twenty questions have to be created, which already requires enormous resources. One has to keep in mind that the exam papers have to be provided in three languages which have to be equivalent. This is particularly difficult for MCQ. If the questions are not equivalent in all three languages, they have to be neutralized. Despite enormous efforts this happens every year at the pre-exam. If one multiplies the MCQ, one multiplies the problems. For the EQE, thousands of MCQs would have to be drafted. Who should do this work? And those questions could not just be reused every year, but checked, some taken out, new ones provided, etc.

It is not foreseeable how autocorrection could work with this type of examination applied by the EQE. It seems that autocorrection can be applied to a format that only looks for the presence of keywords without checking the context and understanding or application of the rules. This may be useful for checking methodology, but not for checking testing “fit to practise”.

Thanks to the e:EQE working group

Last but not least, the authors would like to thank the e:EQE working group for their commitment and work so far. The Discussion Paper already shows that the thinking is outside the box and that an attempt is being made to lead the EQE into the future. The authors look forward to the forthcoming Concept Paper.

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