Reform of the European Qualifying Examination

C. Mulder (NL)

I – Restructuring the EQE

1) Pre-Examination and its effects

In 2012, a Pre-Examination (‘Pre-Exam’) was introduced with the intention to stimulate candidates to start their preparations for the Main Examination (‘Main Exam’) earlier and to work as a filter for those who are not yet well prepared. The idea was to relieve the Main Exam of unprepared candidates and hence unnecessary work. A candidate can only enrol for the Main Exam after having passed the Pre-Exam. After a few years of experience with the Pre-Exam, it turned out that the workload and costs of preparing the cases and drafting unambiguous multiple-choice (MC) questions are exceedingly high. In addition, an unexpected number of appeals were filed.

It would be worthwhile to have a report investigating and reporting whether the Pre-Exam has fulfilled its goals. In some discussions, the abandonment of the Pre-Exam was advocated. Currently, there is apparently no intention to amend or abolish the Pre-Exam. Therefore, I have taken the liberty to work out my own manner of restructuring the EQE.

2) Abandoning the legal questions of the Pre-Exam

For the Pre-Exam, it is my proposal to skip the legal questions. The current legal questions only test considerably basic knowledge and can (easily) be answered if one is able to quickly identify the Rule in the EPC or PCT, or the appropriate ‘implementing’ text in the EPO Guidelines of PCT Applicant’s Guide. Because each question in the current system requires four statements, there are normally two statements where the answers can be guessed. One learns little from this type of questions.

If not abandoned, the Pre-Exam could be held with "closed books" and test more basic knowledge.

The often-heard suggestion of creating a ‘pool of questions’ sounds easier than its realisation: making say 1,000 legal questions is perhaps not the problem, but keeping 1,000 questions up-to-date is an enormous job, which people tend to forget/ignore. (I have a lot of experience in keeping large sets of questions up to date.)

3) Limiting the Pre-Exam to claim-analysis questions only

For the Pre-Exam, it is my proposal to keep the claim-analysis questions: this is a unique exam in the world and tests vital knowledge of trainee patent attorneys. The best example is the 2019 Pre-Exam: there were two inventions (instead of one case in the previous exams) + a set of MC questions: this worked out very well.

The Pre-Exam Claim-Analysis tests basic knowledge of the candidates in relation to novelty, inventive step (problem-solution approach), allowability of amendments and scope as well as clarity of the claims.

The current claim-analysis questions are more focused on content and less on ‘speculating/guessing’ whether a statement is True or False. More flexibility could be added by not requiring that each question be followed by four statements.

The MC Pre-Exam Claim-Analysis could be organised at regular intervals, say 2-3 times per year. This could be done directly at a computer with immediate results. If the MC PreExam CA is failed, it should not be allowed to take a new one in say the forthcoming 6 months. The latter period could be shorter if the score is closer to Pass.

4) Effect on the Main Exam

We must realise that European patent attorneys are highly esteemed for their professional training and skills. It should be the aim of the EQE to maintain the high standard of testing whether a candidate is fit to practice.

For the Main Exam, I do not see how the current Papers A, B and C can be altered. These papers test important skills of trainee patent attorneys in a pre-defined (although not very realistic) setting.

However, the duration of the exams may be reconsidered. Currently, the time allocated to Paper A is 3 hours. In view of the task set, this should become 3.5 hours – the same duration as for Paper B. The current time allocated to Paper C is 5.5 hours. In recent years, the size and content of this exam paper have grown outside doable proportions (e.g. in the 2019 C Paper the candidates effectively had to attack nine claims). Limiting the effective number of claims to 6 (including any splitting due to the use of ‘and/or’) would seem enough to test the skills of the candidates to draft a notice of opposition. Under these conditions, the duration of the C Paper could be limited to 4 or max 4.5 hours.

In view of the proposed deletion of the legal questions from the Pre-Exam, changes should be effected in EQE Paper D. At least a part of the DI questions could be cast in multiple choice. To improve the intelligence of the MC questions, questions could have a variety of statements (not necessarily limited to four) and a variety of answers (not necessarily limited to true/false) as well as the use of more sophisticated manners of grading. For instance, it could be asked how confident a candidate is about his or her answer (percentage): if a higher confidence is indicated, more points can be gained or lost. Another manner to test the knowledge of candidates by means of multiple choice is to give a list of say four statements followed by two statements indicating: 

1. Statements 1, 2 and 4 are true, but statement 3 is false.
2. Statements 2 and 3 are true, but statements 1 and 4 are false.

 By removing the legal questions from the Pre-Exam, the candidates do not have to study twice for the legal questions. After the introduction of the Pre-Exam, the results of the legal questions in Paper D showed a decline because the candidates do not feel like studying for Paper D again after having passed de Pre-Exam.

The new Paper DI could also be organised at regular intervals (2-3 times per year), preferably at a computer with immediate results. If Paper DI is failed, it should not be allowed to take a new one in say the forthcoming 6 months. The latter period could be shorter if the score is closer to Pass.

Current Paper DII should become a stand-alone paper, perhaps with a duration of 4 hours. It has always been a mix of applying basic knowledge (i.e. answering DI-style questions) and giving sound advice to a client. Apart from dealing with formalities issues, the new Paper DII should put more emphasis (allocating more points) on giving advice to the client.

With respect to sitting the EQE, a condition could be that a candidate is only allowed to sit the Main Exam after passing the MC PreExam Claim-Analysis paper as well as the Paper DI and, of course, after fulfilling the 3-year full-time training period. Candidates should be allowed to sit the Pre-Exam one year after the registration of the start of their professional activity.

II – Simplify the Grading of the Main Exam Papers

By introducing the Pre-Exam, it was hoped to reduce the number of badly prepared candidates that sit the Main Exam multiple times. One of the grounds was that correcting exam papers of the ‘perpetual resitters’ requires a lot of capacity of the correction system.

In my opinion this is not true: the correction of a candidate who is not (well) prepared, is relatively simple and can be short. Being a tutor for more than 20 years, I have corrected several hundred exam papers made by candidates in their preparation for the Main Exam. When I start reading their answer, I can immediately see: this candidate is never going to pass (simply not “fit for practice”). After reading the whole answer, one could give such a candidate a grade “FAIL”, without spending any time to find out whether the candidate scored 17, 21 or 26 points. Doing this is a waste of time and resources. Furthermore, this work could be done by one marker. By not involving a second marker, the correction process could be shorter.

On the other side of the grading spectrum: the correction of a particularly good candidate also can be done quickly. If a corrector sees: this appears to be a good answer: this candidate is surely fit for practice. After reading the whole answer, one could give such a candidate a grade “PASS”, without spending any time to find out whether the candidate scored 61, 67 or 78 points. Doing this is also a waste of time and resources. This work could also be done by one marker.

Most of the correction time of EQE Papers is devoted to candidates that score between “FAIL”, “COMPENSABLE FAIL” and “PASS”, i.e. between 40 and 50 points: in this region, every mark counts. In this situation having two correctors may be required.

Furthermore, the compensation system could be abolished. Passing a Main Exam paper would then require scoring at least 50 points.

III – How to conduct the EQE

If the corona pandemic is still ruling in March 2021 and travelling is (still) restricted, bringing large groups of candidates together in an exam hall poses a health risk and may be impossible. International travel may still be impossible, difficult, unsafe, expensive (e.g. if airlines must keep free seats between passengers).

1) EQE at multiple locations

A solution may be to have – instead of the current 11 locations – a plurality of locations where the EQE is held.

In every town where there are say 10 to max. 15 candidates, an exam could be organised with an official invigilator and a local patent attorney as supervisors. More remotely living candidates could travel to the exam location. In principle, there should be at least one exam centre per country. If a big hall is available, a larger number of candidates can be allowed to sit the exam, provided the health and safety can be guaranteed.

A consequence of this manner of examination is that the number of official invigilators (currently only members of the exam committees) must be expanded. In addition, safely transporting the exams to all locations as well as getting the answer papers back to München requires a lot of logistics.

2) Electronic EQE

In view of the pandemic, the EPO has proposed to speed up the process of coming to an electronic EQE (‘eEQE’). Plans to come to a computer based EQE exist already for many years and some testing has been conducted at small scale in Munich (70 volunteers in 2020). In its communication from 20 April 2020, the Supervisory Board of the EQE has indicated: “In 2021, the Exams will be organised according to the current format.” In view of the uncertain situation, this may not be realisable.

If in March 2021, the EQE cannot be held in the manner we have known before 2020 and conducting exams at a plurality of locations is not a viable option, having an e-EQE may be indispensable. Cancelling the EQE for a second time due to force majeure must be avoided at all costs. In principle, the EQE must be held at least every 25 months (Art. 1(2) REE).

Apart from the technical implementation of an e-EQE, I do not foresee major problems for this type of exams. In view of the corona pandemic, most teaching at universities and other institutions is currently done online and exams are conducted while the students are at home. This all works well. However, my proposal is to thoroughly test how this works for exams on a scale like the EQE with emphasis of the avoidance of initial teething troubles.

Another point of concern is that today, the candidates at the exam are provided with a pile of paper containing the documents pertaining to the exam. Will they be allowed to print the exam papers at home (e.g. the 2019 EQE Paper C encompassed 37 pages – should we allow for printing time?), because without a kind of overview and being able to quickly find technical features in the documents, browsing through the pages of a printed paper is today an essential asset.

It should also be considered that an open-book exam combined with an electronic exam implies that all sources should be available electronically, e.g. also the Articles and Rules of the EPC and PCT, the EPO Guidelines, the PCT Applicant’s Guide and the Euro-PCT Guide, etc. Eventually, this will have an impact on the manner the questions are asked at the exam (particularly in Paper D).

With respect to concerns about fraudulent behaviour in an e-EQE, there are today software packages which effectively monitor fraud (even for closed-book exams at home). For ‘exams at home’ conducted by universities, measures to prevent fraud are in place – so these could also be employed for the e-EQE. In my opinion, we should not worry too much about fraud and the e-EQE: let this be solved by the experts in the field. Minimum system requirements could be set in relation to the type of computer, the internet bandwidth and the availability of a printer. In addition, a microphone and webcam should be operational for invigilation.

IV – Working Group on Reform of the EQE

In view of the pandemic, a Working Group on the Reform of the EQE has recently been set-up with engagement of the EPO and epi to come to proposals and defining a plan progressing towards a new format of the EQE.

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