Previewing EQE 2022 and beyond, and how it will shape the profession

P. Pollard (NL)P. Pollard (NL)

Pete Pollard is European and Dutch patent attorney and EU design and trademark attorney. After working in industry and private practice, he founded Fireball Patents in Eindhoven, NL to better serve the IP needs of start-ups. Pete is also part of IP.DESIGN, a German-Swiss IP boutique. Since 2009, he has taught European patent law to patent attorneys and formalities officers, specialising in PCT and EQE Paper D. Pete is also the author of the PCT.App legal reference book."

After an enormous effort, the very first online EQE or e-EQE was held from 1 to 5 March 2021. Instead of 2000 candidates travelling across Europe to examination centers, they could take the exams digitally from their homes or offices. It was a major achievement during COVID-19, but it did strain and crack the EQE system as well as many candidates.

EQE success now also depends on being digital-savvy:- efficient at working digitally and at setting up reliable IT before the exam. Few candidates were familiar with: WISEflow (assessment and exam platform from UNIwise), the appropriately-named LockDown Browser (examination tool that severely limits computer functionality, while continuously monitoring audio and video using AI), and Zendesk (online helpdesk and exam invigilation).

Many candidates underestimated the IT part EQE failure is now possible if a webcam crashes or Windows reboots during an exam. LockDown Browser continuously detected "suspicious events" (such as accidentally pressing Alt-Tab twice or "suspicious mouse movements") and kicked candidates out of the exam automatically. After a crash, you needed a password from Zendesk to get back in (which took at least 15 minutes). LockDown Browser also had to be installed and run with Administrator rights. Only one screen was allowed, and candidates were not allowed to move out of webcam-view for up to 90 minutes. Some less-sensitive pages could be printed before each part, but key exam pages were only available digitally during the exam.

1. Biggest bug fixes that the author thinks are needed for 2022

  • Digital highlighting of exam pages was not available at all. This is essential when reading off a screen to keep your place or to note things you need to use.
  • Copy/paste into the answer from the exam was possible, but formatting was often lost, especially with Apple computers. It should not be necessary to reformat after pasting.
  • The parts of the exam which allowed copying were only available on different tabs. At least two side-by-side windows should be possible, allowing digital highlighting and copying.
  • Limited digital external references (EPO website) were available during the exam. That must be extended to include WIPO to avoid each candidate printing out 2000 pages of the PCT Applicant's Guide.
  • Zendesk automatically logged out every 20 minutes, so candidates had to keep checking and logging back in during the exam - this should not be necessary.
  • Many candidates were interrupted by Zendesk during the exam because LockDown Browser had disabled their webcam. The camera tested during startup of LockDown Browser should not be disabled, and there should be an automatic warning if the camera and/or microphone is not working.

2. Other changes that the author thinks are needed for 2022

  • Include a "digital exam desktop", so that candidates can prepare PDF's and upload them for use during the exam. Some EPC/PCT books are already digital and many recommended EPO / WIPO references are only available digitally.
  • Allow searchable text of these PDF's, as you have in real-life, for all digital references. Being able to search broadly does not help as much as you think. Only with knowledge can you search quickly and precisely to pick out what you need.
  • Find a more effective way of communicating with candidates than e-mail, where follow-up questions can be posted. For example, a forum, Twitter, or Telegram chat groups. Be more open about how the exams will be adapted to the format.
  • Provide a technical helpdesk and forum to solve network and access problems well before the exam. This is especially important for company networks and laptops, where candidates will not have administrator rights.
  • Run an early beta test using a large number of external candidates and/or tutors to iron out the bugs.
  • Don't make it harder than it needs to be for those with En/Fr/Ge as a second language.
    • Since 2017, an extra 30 mins was added to each Main Exam so that mainly non-native speakers would have more time. But this is no longer enforced, and it is clear from the 2021 B and C papers that this time has just been absorbed by more material.
    • So, have a non-native review team for each exam from the countries who have a good language level, but not the highest. Sorry - no Dutch, Swedish or Danish etc. doing the English :-). They also need to test whether the exams can be made in time.
  • For exams that are split, like Paper C, subject-matter must be properly separated between parts. The length of the current papers can be reduced by removing overlap and repetition. For example:
    • cut A in half by reducing subject-matter, focusing mainly on independent claims, and providing less prior art.
    • B is not realistic with client giving you claims. Go back to the old format, cut in half by reducing subject-matter, only including a few claims, and providing less prior art.
    • C has much repetition in attacks. Cut in half by including fewer claims, and providing a lot fewer documents.

3. Candidates should start thinking about EQE 2022

  • The WISEflowplatform will be used again, but no information yet about the other software needed. But based on 2021, it is likely to be:
    • An exam browser, such as LockDown Browser.
    • Continuous AI-assisted camera and sound invigilation, so you must be visible in the webcam field of view for long periods.
    • At least one mock is expected in Jan / Feb to allow systems to be tested. Reserve the time and take part - you must use these opportunities to check for individual problems with your hardware / software.
  • So, candidates must think digital and keep an eye on the EPO's EQE pages for more details:
    • A key skill is now typing speed. Take an online typing course and get a comfortable keyboard /mouse.
    • Become less dependent on paper. Get comfortable reading work documents electronically, especially PDF.
    • Look for resources or websites that allow questions to be viewed and answered digitally.
    • Look for EPC and PCT books which are digital - a few can even be edited and annotated digitally.

4. Beyond 2024, the future is modular

The epi recently published their EQE working group discussion paper addressing current issues and proposing changes to be implemented from 2024. Exams of more than 60-90 minutes are no longer compatible with the digital format, so changes have to be made to split the tests. Although many good ideas are presented, like taking modular exams earlier, the author thinks that the modularity could be exploited more to better define the qualification, and thus the future of the profession.

4.1 Is the current EQE adequately testing "fit to practice"?

The author agrees with the working group that the exams have drifted away from reality, but believes that this could be corrected by agreeing rules on how the exams are made and marked.

Don't make it too difficult for creative thinkers to pass

  • Tutors give the same advice - don't be creative, don't think too much, just give the answer in the Guidelines, hand-in a lot, play it safe. Good tips for a temporary exam mindset, but we do not want to filter out those with the opposite skills. In real-life, your opinions on patentability will depend on which of the parties you are representing.
  • Perhaps also have one or two open parts where alternative answers are encouraged. Paper D2 currently provides room for this - legal issues cannot always be fully resolved, so marks are awarded for considering both options. Also the advice to a client can accommodate personal preferences of candidates.
  • The current Paper A also allows some variation in answers and alternatives are accepted. But the current Papers B and C are more like "one-way streets" looking for a golden solution. B and C are classed as "argumentation" exams, but support provided for alternative answers is almost never considered convincing enough for high marks.

Marking should always consider whether a mistake would be correctable in real-life

  • Why penalize submitting a non-novel or non-inventive claim for Paper A? There is little room and time for argumentation, so the thinking of candidates is not always visible in their answers. Full marks should be awarded if a dependent claim is presented that would be considered novel and inventive. There should also be no marks lost for extending beyond the scope of the client's letter - that is what attorneys are supposed to do.
  • For Paper B, where argumentation is required, the thoughts of a candidate can be judged. But again, full marks for the claims should be awarded if a dependent claim is presented that would be considered novel and inventive. Marks should also not be lost for keeping claim scope that the client suggests should be abandoned for commercial reasons - patent attorneys are supposed to do this.
  • You would not write an opposition like the current Paper C expects. In real life, you concentrate on attacking all the claims at least once, getting all the documents in, and arguing the non-trivial aspects of the feature matching and inventive step. You can reformulate your arguments later. So, for Paper C, the marks should also be focused on non-trivial aspects requiring argumentation. Also remove the emphasis on finding the correct closest prior art - this is very difficult in real-life and highly case dependent. It is often determined by looking at the final version of the arguments.

Make a proper syllabus for each exam, and limit what can be asked

  • Professional exams should define a syllabus so that candidates know what could realistically be tested, and on which paper. The REE is too vague, so candidates prepare based on unofficial study guides (like CEIPI or EQE Guide for Preparation) and doing old exams. For example, there is still no clear distinction between legal subjects tested at Pre-Exam and Main Exam level.
  • Currently, new subjects are introduced without warning.
  • Currently, not specifying which states could be tested on the legal papers means that every year thousands of pages per candidate need to be printed out, like National Law and PCT Applicant's Guide Annexes need to be printed in case there is a question.

Allow anyone to take the exam modules, not just those seeking to qualify

  • For example, qualified European patent attorneys, lawyers, employees, formalities officers, national attorneys, technical assistants, and EPO examiners, can learn and stay up to date in a structured way. This could already be done for the current Pre-Exam by just providing marks separately for legal questions and claim analysis.
  • If you have well-defined modules that anyone can take, you will see that they will be used - it is difficult to make exams. The EPO had a successful pilot project (EPAC) a few years ago where formalities officers studied and passed the legal part of Pre-Exam and Paper D1.

4.2 Some Exam Papers have become jigsaw puzzles

The author agrees with the working group that some exams are more like jigsaw puzzles than a test of real skills, but thinks this is paper-dependent.

  • Having small puzzles that fit together, like the current Pre-Exam - claim analysis and Paper D2, seems unavoidable. It has the advantage that you can feel when you are on the right path. Legal questions, particularly True/False, need to be designed to have one or few answers.
  • The biggest current "puzzle" is Paper C - it keeps moving away from a real-life opposition. It is too long with too many documents. In real-life, you can find pieces where they are supposed to be, particular in structured patent applications and documents - you should not have to read every document before you start, looking for definitions that have been hidden.
  • Paper B is rapidly becoming as artificial as Paper C.

This could be corrected by agreeing rules on how the exams are made and marked.#

All papers should start with 0 marks, and award marks for correct parts

  • Current Papers A and B suffer the most as puzzles because they are negatively marked - you start with 100 marks, but lose marks for each deviation from the expected answer. By misreading or misunderstanding, you end up running out of material to use in the argumentation.
  • There is a randomness to passing Papers A and B - many pass at a second attempt without preparing any differently. If you are on the same wavelength, you pass. If not, you fail.

Allow failed candidates access to their detailed marking schemes

  • Few other exam operates like the EQE, where marking is a black box - candidates cannot get any feedback on what went wrong. Candidates have to reconstruct their own marking based on the Examiner's Report which is almost impossible in practice. If this feedback were implemented, fewer candidates would appeal and fewer appellants would pursue an appeal to the end.

5. Qualifying as Patent agent and/or Patent attorney

The epi working group did not mention a number of issues that the author believes should also be addressed.

Match the EQE difficulty to the status of the qualification

  • The qualification is not highly regarded by many national patent attorneys, including many in Europe. Although the qualification is called "European Patent Attorney", many consider us "European patent agents".
  • That does not match with the current effort to pass - more and more, the author hears from candidates that it is not worth the study effort and failing risk - they could follow a national law degree and do all the work of a European Patent Attorney (and more).

The level of respect is based on the content of the study and the perceived knowledge of its practitioners, so these discussions will have a big impact on the future of the profession. In the author's view, major changes would be in our best interest, but that would require fundamental changes.

5.1 Raise the representative status to European Patent Attorney

Compulsory continuous (permanent) education for everyone on the list

  • Those passing the EQE each year are at "peak knowledge", but that is only about 6% of the 12.400 practitioners currently on the list. The legal and specific substantive knowledge learned is forgotten very quickly if not used in practice - very few will keep it up voluntarily as they focus on learning more practical aspects. It does not make sense to make life very difficult for 6% of the profession to qualify when nothing is required of them (or the rest) after qualification to remain on the list.
  • In real-life, knowledge level is even more varied and unregulated due to many others doing "patent attorney-like" tasks, such as national lawyers, employees, and formalities officers.

Include a "European infringement" EQE module with technical interpretation

  • As a qualified European Patent Attorney, you are faced with this question regularly. And how are you supposed to write and amend infringeable claims if you have never studied it?
  • Infringement is tested in those EPC states with national exams, and contributes to the higher regard for those national qualifications. So you cannot formally give legal advice on national infringement, but you are expected by clients to give informal opinions, and if necessary, work with national attorneys to decide.
  • Also, novelty/inventive step are ultimately determined nationally. We currently have three exams just testing whether the EPO will grant or uphold a claim - so, there is room to include infringement. For example, the current Paper C could be split into an infringement part and a smaller opposition part.

Include a "European Trademarks" and "European Designs" module

  • Registered designs are rapidly expanding in filings and case law, and the subject-matter is much closer related to patents than to trademarks.
  • Recognition by EUIPO is based on national qualifications that include (and test) trademarks and designs. Those who pass this EQE module will be able to practice before the EUIPO.

Include a basic IP4 (US, JP, KR, CN) knowledge module and basic (DE / FR / UK) knowledge

  • Expand foreign knowledge in the syllabus (JP, US) to include CN and KR. Clearly define what will be tested. Knowledge of DE, FR and UK systems would also be useful.

5.2 Create a new (intermediate) qualification of European Patent Agent

  • Allow partly-qualified candidates to independently perform "patent agent"-like tasks before the EPO, such as first instance acts from filing to grant. This level of expertise would be similar to that of EPO examiners, and would allow candidates to gain more experience. This is already de-facto the case - experienced trainees work on cases under minimal supervision.
  • For example, European Patent Agent could be obtained after passing modules equivalent to current Papers A, B and D1 (limited to 1st instance). Also, many happy with this level, and will not want to become a European Patent Attorney, or delay the decision to study further.
  • European Patent Attorney would additionally require passing modules equivalent to Papers D1 (full), D2 and C, and an infringement module. They would be allowed to represent in any EPO proceedings, including appeals and oppositions.
  • The first e-EQE in 2021 was a great success - by going for a digital exam that could be taken from any location, the EQE organization ensured it could go ahead in spite of Covid-19. Many of the IT problems are teething problems and will be improved.
  • The flexibility of candidates was a major factor in that success - many just handled the unclear instructions, last-minute updates, and limitations in the software, to take the exam.
  • For every candidate with issues, many others were very positive. They were happy to see the handwriting part of the EQE disappear, and they will have an advantage based on typing and copy/paste speed.
  • As a profession, we should move towards a higher-regarded qualified European Patent Attorney by testing infringement, and introducing compulsory continuous education.
  • Creating an intermediate qualification of European Patent Agent has many benefits.
  • If more professionals can take the EQE modules, the knowledge available in the profession will be increased, and the subjects will stay relevant to real-life.