European Qualification Examination (EQE) To Be Revised

As already reported earlier, issue 01/2008 of epi information had published an interesting piece of statistics titled "List of Professional Representatives as of 29.02.2008". It is essentially a breakdown of epi membership base by country (i.e. place of business or employment; not so much exciting) and by route of admission (quite interesting). What appears to be quite remarkable is that no less than 40% of all epi Members have been entered on the list on the basis of the "Grandfather's Clause". In Germany, one of the founding fathers of the EPC, roughly a quarter of the national chapter are "Grandfathers".

Recently there have been increasingly rumours saying that the rules governing the EQE are likely to be changed but no Official papers were available. However, only yesterday Mr David Pearce was lucky getting hold of a digital copy of Document CA/139/08 Rev. 1 dated November 21, 2008 prepared for deliberations of the Administrative Council of the European Patent Organisation (EPOrg) running the European Patent Office (EPO). This document contains the proposed new version of the Regulation on the European qualifying examination, including the conditions for registration and enrolment. The main points of the revision are measures to reverse the strongly upward trend in costs, a clear definition of the bodies responsible for conducting the examination, and their powers, and improvements in the quality of the examination. The document also comprises an outline of the new Implementing provisions to the Regulation (IPREE) agreed between the European Patent Office and the Institute of Professional Representatives before the European Patent Office. In particular, it comprises a chart which appears to be quite informative:

With other words: While there was a strong increase in the number of candidates sitting the exam, there appears to be absolutely no correlating increase in the number of successful candidates. Despite the fact that Officials responsible for running the EQE machinery tend to blame the collective of all candidates for insufficient efforts in training for that exam I think that such charts suggest that this might also be considered a case of organisatorical misalignment of business on the side of the bodies responsible for running the EQE, resulting in a failure of this entire system of admission. Does it really make sense to let thousands of candidates every year, year by year, take the ordeals of sitting the EQE while, at the same time, on the basis of some political considerations of overriding importance, almost half of the profession in charge thirty years after setting up the European Patent Office never were asked to take the EQE? And, the EQE isn't a cheap exercise. The Document cited knows that, all in all, the cost of the 2007 examination came to EUR 7 167 000. Of this, EUR 2 681 000 (estimate based on EPO cost levels) was contributed through the working time of professional representatives made available free of charge and EUR 108 000 (estimate based on EPO cost levels) through kind support from national patent offices in the form of premises and staff. Receipts from fees amounted to EUR 652 000. The remaining costs totalling EUR 4 378 000 were borne by the EPO. And, contrary to some of the national examinations for patent attorneys, the EQE traditionally does not even attempt to measure the degree of aptitude to perform legal reasoning of the candidates. In order to pass the EQE, some ability to stupidly exercise delivery of certain results in virtually no time is a mandatory prerequisite; anybody starting legal reasoning is already lost because of the time constraints imposed on the EQE candidates.

When the OHIM (Office for Harmonisation in the Internal Market) was created, contrary to the situation when the EPO was founded, a political decision had been taken not to install any kind of additional qualification exam. Instead, there is something like an eternal Grandfather's Clause in place, saying that a candidate must be entitled to represent natural or legal persons in trade mark matters before the central industrial property office of a Member State Where, in that State, the entitlement is not conditional upon the requirement of special professional qualifications, persons applying to be entered on the list who act in trade mark matters before the central industrial property office of the said State must have habitually so acted for at least five years. However, persons whose professional qualification to represent natural or legal persons in trade mark matters before the central industrial property office of one of the Member States is officially recognized in accordance with the regulations laid down by such State shall not be subject to the condition of having exercised the profession. Did anybody seriously complain that the Professional Representatives enroled with OHIM without sitting another exam are less qualified for their job compared to the European Patent Attorneys admitted to represent before the EPO who took the EQE?

With regard to the intended reforms of the EQE organisatorical structures, the Document identified above gives an outline as follows:

Given that the job of setting the questions has become more complex, the EPO and the Institute have agreed on a new apportionment of tasks among the organisers of the examination.

In future, the conduct of the European qualifying examination is to be in the hands of a Supervisory Board, an Examination Board, several Examination Committees and an Examination Secretariat. The Supervisory Board has been newly created.

The main job of the Supervisory Board is to concern itself with political matters and fundamental issues regarding access to the profession of European patent attorney. The intention is that the Board should be composed of high-ranking representatives of the EPO and the Institute, thus constituting an effective forum for constructive debate. One of the Board's tasks will also be to adopt the Implementing Provisions.

The setting up of a Supervisory Board will reduce the workload confronting the Examination Board, which will then be able to concentrate fully on the examination, the papers and the marking exercise. As a result, it will develop into a team of experts. The duties of the Examination Committees and the Examination Secretariat will remain essentially unchanged.

The EPO and the Institute are to be equally represented on the Supervisory Board, the Examination Board and the Examination Committees. The chairmanship of the Supervisory Board and the Examination Board will alternate between the EPO and the Institute. When the chairman of the Supervisory Board is a member of the EPO, the Chairman of the Examination Board will be a member of the Institute and vice versa.

In particular, the following measures are mooted by the AC:

• Candidates must register at the beginning of their practical training. As a result, they can have courses and other training opportunities drawn to their attention. It is also expected that candidates and trainers will be more actively committed during the learning phase if candidates are already officially registered. The intention is to introduce the registration of candidates at the beginning of their training once the operational tools have been put in place.
• The proposal for a pre-examination one year before the main examination is also intended to get candidates involved in a systematic learning process. Success in the pre-examination is a prerequisite for being admitted to the main examination.
• Lower subsidies, i.e. higher fees, for candidates who repeatedly take the same paper is designed to discourage the practice of sitting the examination on the off chance. However, even the envisaged maximum surcharge of 300% would not cover the costs.
• Candidates will be able to choose which papers they sit on a particular day. The absence of any obligation to take all four papers at the same time, or according to a schedule prescribed by the modular system, allows candidates to focus their preparation more effectively on individual papers and to defer papers for which they are unprepared to a later date.
• The time limit for allowing an appeal is to be reduced to two months, giving the Disciplinary Board of Appeal of the EPO more time to process an appeal. It is also intended that the appeal fee should be increased to ensure that costs are partially covered.

Moreover, a second phase of the EQE reform is considered: The planned second phase of the revision will focus on resolving the issue of the qualifications required for membership of the Examination Board. According to the Document cited, one option would be to make it obligatory for some members to have passed the European qualifying examination, as is the case with members of the Examination Committees. Another possible topic for the second phase could be the involvement of only one examiner in the marking of one part of the papers. This would be considered in the context of a review of the options for appeals.

(Photo derived from (C) erindipity! via Flickr under CC licence.)