Reaction to epi Discussion Paper on a new format of the e:EQE

N. Blokhuis (NL)N. Blokhuis (NL), Associate Partner, Dutch & European Patent Attorney, EQE Tutor at Maastricht University

Recently, epi published a paper with a proposal for a completely revised set-up of the EQE[1]. This paper was prepared by the Digitalisation Support Group (DSG) and the PEC EQE subcommittee of epi. It is labelled as a "discussion paper", which I regard as an invitation to epi members to discuss the future of the EQE, and in particular the proposal as formulated in the discussion paper.

In the 15 years that I have been a tutor for the EQE (first at CEIPI, currently at Maastricht University), there has always been criticism on the format of the EQE. Some found that the preparations are too much of a burden for candidates and the companies they work for, while others consider the EQE to be "just a trick" that has little relation to everyday practice. Although the EQE has evolved quite a bit over the years that I have been tutoring, these points of criticism have remained throughout the years.

Now that the EQE has made the big step into the digital world, again the question is raised whether the EQE in its current form is still fit for its purpose. In addition, the digital format of the exam and the rapid developments in the world of digital learning and digital exams offer many new possibilities that could improve the EQE.

It's my opinion that it is a good idea to re-think the set-up of the EQE and to make use of the possibilities new technologies have to offer. However, when doing so, in my opinion the main purpose of the EQE should be given absolute priority. A solid testing of the core competencies of a European patent attorney should be the starting point of any redesign of the EQE. Based on that, the proper tools for testing can be selected. As with any good design: form follows function.

Below you will find some of my thoughts on the proposal as formulated in the discussion paper.

1. "The EQE has become a puzzle"

1a. Methodologies are important, but should not be overrated

I agree that the current EQE papers have evolved towards exams that benefit significantly from insight in the respective methodologies for obtaining the correct solution.

However, this does not make them "easy" exams. Candidates still need to have true patent attorney skills in order to score sufficient marks to pass. This is something I observe in our courses at Maastricht University: knowing "the trick" is not sufficient to pass. Good skills in analysis and argumentation and good legal knowledge are required to score sufficient marks. I have met many re-sitters who said they identified all the correct attacks in paper C, but still failed the paper. This is generally due to a lack of argumentation skills at the level that the EQE requires for candidates to pass.

If the EQE were "just a trick", the pass rate of the EQE would be significantly higher than it currently is.

1b. Root cause for "the puzzle"

In my opinion, there is a distinct reason why the EQE has developed it's current set-up in which methodology has become so relevant. This reason has to do with the technological knowledge (or lack thereof) that is expected and can be expected from the candidates.

Currently, all practical papers (pre-exam claim analysis, A, B and C) are the same for all candidates. So, candidates from all technological backgrounds must be able to work with the invention that is presented. This makes that the drafters of the papers cannot rely on candidates to, for example, come up with their own words for formulating claims features in paper A or for judging whether feature X in the claim is the same as feature Y in the prior art in paper C.

This makes that literally all information needed to solve the case must be contained in the paper. Candidates who in a serious way prepare for the EQE understand this and will figure out what types of information, hints and clues to look for in the paper.

This issue has been aggravated over the years by the changes in technical education which have taken place on a broader level within society. I observe in my trainees (both my trainees within EP&C and the candidates in the Maastricht courses) that, compared to earlier generations, they generally have received a less broad and significantly more specialized technical education. It used to be so that e.g. a mechanical engineer also had some basic knowledge about chemistry, electronics and physics, but nowadays that is no longer a given.

The effects of this situation can be seen in for example the C-paper. Roughly in the time frame of 2013-2016, no technical understanding of the invention was necessary to come to the right attacks. All words that were needed were given in the paper. For the first time in 2017, and also in 2019, some "technical considerations" were necessary to select the desired attacks ("the skilled person would not combine the teaching of X and Y because then this part would not fit", "combining these two documents would go against the general direction of development of the closest prior art"). Many candidates struggled with this. In 2021, the C paper contained technical terms like "gasket", "buckling resistance" and "tensioning tubes" - and quite some candidates did not understand these terms. There were a lot of complaints about this, as can been seen e.g. on the DeltaPatents blog.

The level of technical specialisation of our candidates has become very high, and candidates come from a wide area of technical backgrounds. In my opinion, this is something that should be taken into consideration when designing a "new EQE". If this would not be addressed in one way or another, the new EQE will become a "word game" just like the current EQE.

Therefore, I am of the opinion that it is highly important to define a level of general technical knowledge that every candidate, regardless of his or her technical specialization, needs to have to pass the EQE. This level could be for example "physics and chemistry high school level and understanding basic technical drawings". Of course, the required level should be clearly communicated to the candidates.

2. What are the skills that the practice requires?

A widely accepted educational principle is that of "constructive alignment". This means that there is coherence between:

  • the intended learning outcomes,
  • the teaching and learning activities,
  • the forms of assessment (= testing whether the intended learning outcomes are obtained).

When designing an educational program, one starts by defining the intended learning outcomes. The teaching/learning activities and forms of assessment follow from the intended learning outcomes.

I would very much welcome a thorough discussion of the intended learning outcomes before discussing the format of the EQE. Such a discussion on the intended learning outcomes involves questions like:

  • what skills does the profession require in daily practice?
  • what knowledge does a European patent attorney need?
  • which of these skills/what knowledge should be tested in the EQE?

The skills mentioned in the discussion paper are described in terms as "writing a reply to a communication" or "determining whether an embodiment is covered by a claim". However, underneath these skills lay more general patent attorney skills, as like "being able to formulate an inventive step attack", "being able to determine whether a claim is novel", or even at a deeper level "being able to analyse a complex situation".

When looking at the desired skills at this level, a differentiation between assessment/analysis skills (e.g. being able to determine whether a claim is novel) and formulation/argumentation skills (e.g. being able to construct an inventive step attack or defence from scratch) should be made. These are skills are very different in nature: being able to assess the novelty of a claim that somebody else has written is a very different skill from writing a novel claim yourself.

I think it would be helpful to explicitly identify such "deeper level skills" and then look for a suitable format to test these skills. By identifying such deeper level skills, one can also make sure that in the exam design all necessary deeper level skills are sufficiently tested, in all candidates. This also will offer insights that help to design the exam papers that form part of the EQE in a clever and creative way.

In the set-up as described in the discussion paper, as I understand it, in the final exam candidates in year A will be tested on e.g. patent application drafting, while in year B the candidates will be tested on writing an opposition instead. I think this is undesirable, as the final exam appears to be the only exam in which the candidates have to formulate arguments or e.g. write claims by themselves instead of assessing claims and/or arguments that are presented to them. In my opinion, to become a European patent attorney - and to safeguard the quality of the profession - all candidates should demonstrate in the EQE that they have all the "deeper level skills" that European patent attorney needs in daily practice.

3. Training on the job

With the proposed set-up of the practical track, candidates must be prepared to produce (one or some of) a significantly larger number of types of documents than in the current EQE. However, in the current way in which candidates are trained on the job by their mentors, many candidates do not get the chance to practice writing all these kinds of documents in real life. I already see this when I'm tutoring candidates in particular for papers A and C: very, very few candidates have real life experience with writing an opposition, and some have even never or hardly ever written a patent application themselves (for example the candidates working at an IP department in industry which outsources writing patent applications to private practice firms).

In the current situation, this can largely be handled efficiently by good EQE-training, due to the more or less "fixed format" of the EQE-papers, and due to the fact that this only relates to patent applications and oppositions. However, it still requires a lot of time and effort to properly prepare a candidate who lacks hands-on experience with e.g. drafting patent applications.

This issue will be aggravated by the proposed set-up of in particular the final exam of the practical track. How many candidates will have practical, real life experience drafting grounds of appeal or a notice of Intervention? If they don't learn these things from their mentors in daily practice, they will have to learn this from their EQE-tutors.

This can be done of course, but it could place quite an additional burden on the tutors and on the firms/companies who have to pay for the training of the candidates by the EQE-tutors.

This can be done of course, but it could place quite an additional burden on the tutors and on the firms/companies who have to pay for the training of the candidates by the EQE-tutors.

I do not think it is realistic to assume that firms/companies will solve this internally by giving their EQE-candidates a larger variation in tasks. Some tasks will simply not occur at all in the firm or company (e.g. drafting applications when this is outsourced, companies that simply never do oppositions, the types of cases in portfolio of a mentor, etc.). Other tasks will occur only very seldom, or the company/firm culture does not allow trainees to take part in more complex, high level cases.

This problem does not only occur in CSP-countries, but I also see it in companies/firms in the Netherlands and Belgium. For example, even large applicants in the Netherlands do not file oppositions.

In many ways, the EQE is of the utmost importance for our profession. Therefore, I would very much welcome an open and thorough discussion, in which colleagues from many different backgrounds get the opportunity to take part.