Towards a new format of the e:EQE
C. Mulder (NL)
T. Reijns (NL)
In view of the digitalisation of the European Qualifying Examination, the structure and content of the Exam needs to be reconsidered. When developing a new format for the e:EQE emphasis should be on testing whether candidates are “fit to practice”. Care should be taken to retain the high-level quality standard of the current Exam.
For many years, there have been plans to modernize the European Qualifying Examination (EQE) which has been testing the abilities of candidates in preparation for their future job of European patent attorney. However, some of the current Exam Papers are remote from reality: they have become jigsaw puzzles, constructed such that all pieces fit perfectly together to come to clearly defined “correct” answer. As the current Exams follow a certain structure, candidates prepare for the EQE through methodology courses, where they learn how to structure their answer and include the answer elements that feature in the compendium solutions of past papers. After the cancellation of the 2020 EQE due to the Covid-19 pandemic, an immediate solution was needed for an online Exam in 2021.An early proposal for adapting the EQE can be found in: “Reform of the European Qualifying Examination” by Cees Mulder in epi Information 02|2020 pp.11-13. Testing skills in an online environment showed that the “paper” format of the EQE is not very well suited to online Examination without adaptation. Candidates cannot sit for hours before a screen while being continuously monitored by invigilation software.
In 2021, the Supervisory Board created an e:EQE Working Group comprising representatives from the EPO and epi. Two tasks were assigned to this Working Group:
- set up and implement an online EQE in 2021, and
- prepare the groundwork for the e-EQE of the future.
To support the epi members in the e:EQE Working Group, epi set up a Digitalisation Support Group (DSG) with members of the Professional Education Committee (PEC) supplemented by experts in the field of the EQE and in online Exams.
epi is aware of the evolving role of the professional representative and aims at actively providing contribution to the restructuring of the EQE. There are regular meetings between the three epi members in the e:EQE Working Group and the DSG, which normally are also attended by members of the Presidium. One of the objects/tasks of epi is mentioned in Article 4(1) of the Founding Regulation of our Institute:“Regulation on the establishment of an institute of professional representatives before the European Patent Office”, Supplementary Publication 1, OJ EPO 2023, XIV. “… collaborate with the European Patent Organisation on matters relating to the profession of professional representatives and in particular on disciplinary matters and on the European Qualifying Examination.“
Candidates have long been asking to be allowed to type their answer papers instead of writing them, enabling them to better structure and arrange their answers (and allowing for easier marking too). Automation and digitalisation initiatives in the candidate’s professional environment as well as at the EPO have led to different ways of working for the profession since the turn of the century.
Testing skills in an online environment also offers new opportunities to bring the Exam closer to the profession and to real life situations. It allows, for instance, to introduce a broader variety of assessment techniques, type the answers using a keyboard, and, among other features, to have access to digital resources, just like in real life.
A broad discussion was stimulated in epi to come up with a new format of the e:EQE better matching an online environment while at the same time adapting the Exam to better test if candidates are “fit to practice”. The Exam should aim at providing successful candidates with a “driving licence”, which in their subsequent life is to be supplemented by acquiring the full skills of a European patent attorney.
Proposals for a new format of the e:EQE
In the beginning of 2021, the DSG presented a discussion paper with a proposal for a new set-up of the e:EQE encompassing a practical track and a legal track, each comprising several modules for testing the required progressive skills of European patent attorneys. The proposal was discussed at epi Council meeting C90 in May 2021. A conference on modernising the EQE was organised by PEC in June 2021.
In addition, the epi-EPO e:EQE Working Group drafted a competences-based proposal for a new e:EQE, which was published on the EPO-EQE website in May 2022.“New EQE – Proposal and consultation”, https://www.epo.org/learning/eqe/new-eqe.html (accessed 14.02.3023). This proposal is the outcome of the work of epi and EPO experts to conceptualise the Exam Papers and the overall proposal, taking into account the feedback received in the epi conference and also the feedback received in the context of a consultation to training institutions. In this proposal, two Foundation modules (testing a basic level) and four Main Exam modules (assessing if the candidate is “fit to practice”) were presented. Passing one or both Foundation modules is necessary for being allowed to sit the Main Exam modules.
One of the goals of both proposals is that a trainee European patent attorney can sit the set of modules with progressive complexity within three years. This matches the current practice, where most candidates start with the relatively simple parts before moving to more complex tasks, and can complete the EQE also after 3 years.
In order to facilitate the understanding of the epi-EPO proposal, a set of Example Exams was drafted by a group of epi and EPO representatives. As the new e:EQE will be an online Exam (e.g. on the WiseFlow platform), several new types of questions were introduced. The aim of the Example Exams was to show what a future e:EQE could look like and demonstrate the new ways of testing that can be applied. The format and content of the Example Exams was also discussed at epi Council meeting C92 (May 2022). Later on, PEC organised a series of webinars on the content and structure of the Modules and Example Exams.
The EPO proposal together with the set of Example Exams was subject to a consultation process in the period May-August 2022. Close to 170 written contributions and 15 detailed letters were received and analysed, the points of consensus were identified, and the necessary changes agreed in the epi-EPO Working Group. In November 2022, the Working Group released a conclusion while indicating a follow-up trajectory.Ibid.
Draft outline of the new e:EQE
Based on the outcome of the consultation (which was discussed at epi Council meeting C93 in October 2022), it was decided to clearly define the syllabi for all modules to avoid confusion. The Foundation modules test basic knowledge of the EPC and PCT as well as the substantive patentability requirements of the EPC (such as claim analysis) at an intermediate level. Passing at least one of the Foundation modules is a prerequisite for sitting any of the remaining modules.
The Main Exam modules may be taken in any sequence, provided a concrete and increasing period of time has elapsed for each of them, since there is a gradually increasing level of difficulty going from module M1 to M4. It is expected that the syllabi for the respective modules will be different as the modules address different EQE aspects.
- The description of the modules as presented below reflects the evolution form the original concept to the most updated one after the consultation and the conclusions extracted.
Module M1 will deal with the assessment of information and client instructions. This will include analysis of prior art and claim interpretation at an intermediate level as well as dealing with a communication from an examining division.
Module M2 (was module M3 in the original epi-EPO Working Group proposal) will deal with mastering procedural patent law. This may include procedural and strategic aspects. This module comprises aspects of the current D1 Paper.
Module M3 (was module M2 in the original epi-EPO Working Group proposal) will include three sections:
- a section in which the candidate is required to analyse an invention and prior art in order to draft a set of claims with an introductory portion of the description;
- a section where the candidate has to defend objections against allegations from e.g. an examining or opposition division;
- a section where the candidate must show skills to attack a set of claims or description and to amend the claims. This may be filing grounds for opposition or grounds of appeal or, e.g., drafting third-party observations and predicting the consequences.
A candidate has to sit all three sections.
- In this module the practical skills of the candidate are tested at an advanced level and the three sections comprise aspects of current Main Exam Papers A, B and C.
Module M4 will deal with advising the client in a broad sense. This will include dealing with procedural aspects of patent law at an advanced level. In addition, the candidate will have to show that he/she can assess complex patentability situations and, based on the analysis, give reasoned advice to the client how to improve the position of the client and, e.g., to weaken the position of the competitor(s) including advice on licensing agreements. This module comprises aspects and is a progression of the current D2 Paper.
The assessment techniques will include automation where reasonable. The Example Exams showed up to 13 different possibilities in that respect, but it was generally perceived by respondents that it would be preferable to limit these options to a handful, and to also include more free-text type questions. As a consequence, even in the Foundation modules there may be open questions. The advanced modules M1 and M2 will combine automation with free text, although free text will take precedence, whereas modules M3 and M4 will be drafted with open questions to be scored by hand.
Not all new Exam modules need to be graded in the same manner. Choosing different grading levels may exemplify the relative importance of the Modules. By way of example, modules M1 and M2 could each be awarded a maximum of 50 points, where for a pass it is required to score at least 30 points. Module M3 comprising three separate Exams could for instance have a total of, e.g., 3x50=150 points, where for each section a score of 30 points is required to pass. Module M4 could for instance have a score of 100 points, where for a pass it is required to score at least 60 points.
Drafting the Regulations for the new e: EQE
The next step of the process to come to a new e:EQE, is drafting the corresponding Exam Regulations, i.e. the so-called REE and IPREE. The REE sets the general framework of the EQE, including conditions for registration and enrolment, as well as the Examination Syllabus and the transitional provisions. In the IPREE, the required qualifications for admittance to the EQE are specified. In addition, general instructions for answering the papers are given. epi has already drafted a proposal for better defining the educational and technical qualifications for trainee patent attorneys to be allowed to sit the EQE.
It is desirable that the drafting of the REE and the IPREE will be a joint effort of the EPO and epi.
Once the REE and the IPREE for the new e:EQE have been finalised, they eventually are subject to approval by the Administrative Council of the European Patent Organisation. The latter organ will also set a date for the new REE and IPREE to enter into force. Of course, the new REE and the IPREE will be published in the Official Journal of the EPO.
Entry into force and transitional provisions
As the Supervisory Board has already decided that the EQE 2024 will be conducted under the current Exam regulations, the earliest possible year in which the new e:EQE can be rolled out is 2025. It may also happen that in 2025 as a first step the Pre-Exam is replaced by the new Foundation modules and that the new Main Exam modules will go live as early as 2026. Transitional provisions will have to be prepared and published for candidates who have already successfully passed the Pre-Exam and any current Main Exam Paper. For instance, if a candidate has passed the current Pre-Exam, sitting the Foundation modules could be skipped. Once a candidate has taken the Foundation modules, he or she must sit all four Main Exam modules. In view of the work involved in preparing Exams, offering the old and the new Exam co-currently should be kept at a minimum.
Towards a new e:EQE
In view of the digitalisation of the European Qualifying Examination, it is good to reconsider the structure and content of the Exam. The proposal for a new structure of the EQE is the result of almost two years of work of a broad range of seasoned professionals, who have sought highest quality standards, modernisation, and consensus. It offers better opportunities to candidates to prove that they are “fit to practice” and modernises the tools and techniques to assess this is the case. Care will be taken that the emphasis remains on testing aspects of the daily practice of a European patent attorney while retaining the high-level quality standard of the current Exam and avoid artificial and methodology sensitive means of testing. It is highly recommended that those interested in the new EQE consult the original version and the changes introduced once the consultation response was analysed and integrated by the epi-EPO e:EQE Working Group.