Report from the EQE Tutors Meeting - Oct 2018

In October, the EPO & epi arrange an annual meeting of EQE Tutors and members of the EQE Committees (EC's). Information & views are exchanged to help Tutors prepare Candidates for future exams, and to influence how future exams are made and marked. It is a good opportunity to learn about how each paper is made and tested, and to meet the EC's. In particular, anything highly relevant for the next exam (in this case EQE 2019) is communicated.
A full report usually appears in the December version of epi information (I don't make this anymore), but here are my most important conclusions:

1. ABCD: extra 30 minutes

• There were concerns that some papers (this year B and C) seemed to be longer than average, eating up the extra 30 minutes given to make the paper. The EC's assured us that the papers are made and tested based on the time limits defined in the Exam Regulations (REE). The extra 30 minutes remains extra time for candidates to make the paper, and compensates for slower reading and writing by those who do not do the paper in their native language. 
• My advice is to build & practice a methodology for doing the papers without the extra 30 minutes. You can then decide at the exam how to use this.

2. D: lower passing rate in 2018

• Only 33% of candidates got 50 marks or higher this year for the D paper (45% got 45 or higher). 

• The Legal Opinion (DII) was a different style, but that should not have caused so many more people to fail. Q1 of DII caused time management issues - no marks are given, so the level of detail expected and the time to spend is uncertain. As it was in DII, there is an expectation that it is an important part for the rest of the DII, so I know some Candidates spent a lot of time on it. But the exact style of papers is not fixed - there are very few rules for this. Candidates have to manage their own time.
• Time management is a key skill on all papers. If you get stuck, try and jump past it - sometimes you can see that it is only of minor importance for the rest of the answer. Or there are only two possible outcomes - pick the one you think is most likely, write down your assumption, work on the rest of the answer, and come back at the end if you have time. 

• The Paper D EC concluded that the main problem is an apparent lack of legal knowledge. The tutors had different comments and experience about this. Some have noticed a problem with motivation - after learning the law to pass the Pre-Exam, it is difficult to find the energy to go through it again. I have seen the level of knowledge drop over the last few years with my Candidates in October/November before the main Exam - less knowledge of the different options, and less detailed knowledge of the most frequently examined options.
• I think everyone agrees that the D Paper tests legal knowledge, so you should not be able to pass without a sufficient legal level. 
• The legal knowledge needed for the Pre-Exam is much lower than for the Main Exam. For the Pre-Exam, you are given the answers, so you only need to be able to recognise options (passive knowledge). You also forget a lot within a couple of months. For the Main Exam, you must be able to generate options yourself - that requires activated knowledge: study it again and practice applying it by doing as many Main Exam-style legal questions as possible. 
• The best way that I know is to do the 150 selected questions from the DeltaPatents D Book, study your answers, and try and figure out why you missed the important parts. Then do the DI questions from the exams of the last 4-5 years, and similarly study your answers.

• To do DII, you need to have a good legal knowledge (see the comments in this presentation). Otherwise you cannot solve the legal issues in the DII correctly. The Paper D EC is seeing a lot of Candidates trying to pass by spending almost the whole exam on DII without having sufficient legal knowledge. 
• I am not completely convinced that it is possible to pass, but they do give you the benefit of the doubt, so if you write a lot of general statements and cover both possible outcomes of a legal issue, then you might theoretically be able to collect a lot of points. 
• It does not change much for the strategy for the paper - I have never met anyone who just spent 5 hours on DII - everybody always does some DI questions. I think as a candidate you either emphasis the DI more than DII or the DII more than DI, but you still need to do something on both
• The Paper D EC warned that in the future, they may reduce the marks available for DII (the division between DI and DII is not fixed in the rules). The DII part could be reduced down to 50 or even 40 marks.
• Don't expect any big changes in 2019 - that exam is already finished and being printed. Future changes are expected to be gradual. They can still change the marking of the DII paper, perhaps giving more points to solving the legal issues or being stricter if someone contradicts themselves.

• Prepare for DI before preparing for DII. Check the exam front page for the marks distribution, and adapt your time management accordingly. 
• Also, don't just write summaries of the facts given - although these are useful steps in the analysis, you still need to finish the analysis and apply the law to the facts given. As a rule of thumb, you should be handing in 10-15 pages of analysis, reasoning, conclusions and advice for a 60 mark DII.

• A lot of Candidates skip DI questions. This is not penalised in any way, the Paper D EC has noticed that a lot of those skipping questions tend to fail.
• The strategy of skipping one or two DI questions is to gain time to do the other DI questions and the DII, but it assumes that you have a good enough legal knowledge to do the rest. It does not help you if you still cannot answer the rest of the paper.

• The DII questions do not indicate marks, so there are no hints about how much time to spend or the detail to give. The Paper D EC explained that the Legal Opinion is supposed to represent a letter from a Client, and therefore a big part of the exam is choosing the topics to be discussed. In spite of several Tutors requesting this to be changed, or a range of marks to be given, or more detailed questions to be explicitly asked, the Paper D EC concluded that this will stay the same. 
• The questions indicate the areas of discussion and a suggested order to guide you through to an answer. The rest, you have to fill in yourself. Also, your DII answer is marked as a whole, so comments attracting marks may be given anywhere, as long as they are recognisable (in the correct context).
• The Paper D EC is also astonished at how many Candidates do not write down things on DII that almost always give marks, such as the earliest application (earliest filing date) for each invention. Make sure you do this - this is analysis that gets typically 1.5 to 3 marks.

• The Paper D EC noticed that marks were lost for avoidable things, like incorrect time limit calculations, and not answering the questions asked. 
• I think in many cases, this is due to not activating the legal knowledge - it not possible to pass the D Paper by reciting some facts and copying things from a legal book or the Guidelines. You need to learn how to apply the law to the particular situations of the questions.
  There are a lot of marks for basic skills, like calculating time limits, but you need to be able to do it during the exam without making any mistakes.

• The Paper D EC also noticed that the legal basis cited in DI is often not sufficient. They want to see what is needed to fully support the answer - Article AND/OR Rule AND/OR Guidelines AND/OR case law. They only expect legal basis citations from the sources indicated in Rule 22(1)(a)-(o) IPREE.
• In general, give the best legal basis available from your notes or books when you answer each question. If you see an Article and/or Rule and/or G decision that is relevant, always cite these explicitly. For the others, cite the source that you got it from  - alternatives, like the PCT Applicants Guide or the Euro-PCT Guide are usually also accepted as they often simply recite the information found in the official sources. 
• They expect the EPO Guidelines valid on 31 Oct before exam to be used (actually the version published about 1 year earlier on 1 Nov). If you use a different version, it is recommended to mention ONCE ONLY in your answer the version being used so that they understand the reference. 
• Note that you do not automatically lose points if you refer to a different version. A newer version will always be accepted but not expected (the changes appearing in the latest version of the Guidelines are based on Case Law and decisions that entered into force at least 6 months earlier). 

3. D: Guidelines for Search and Examination at the EPO as PCT Authority is now recognised (since Sept 2017) as an official legal source in Rule 22(1)(a)-(o) IPREE. (may be referred to as GL/PCT-EPO).

• A lot of Tutors (including me) missed that this had been added to the list in the Notice announcing the cut-off date of 31 October for the legal sources used. 
• Most of the contents are found in the PCT Applicants Guide, the Euro-PCT Guide and the existing EPO Guidelines, but the EPO is gradually making this more complete as information is moved into here from other sources. 
• For EQE 2019, look through the 1 Nov 2017 version for anything you have missed from the other sources. 
• Future Candidates should start using it as their main reference for the PCT implementation at the EPO, together with the Euro-PCT Guide.

4.  ABCD PE: quality of papers & marking

• A lot of Tutors submitted questions about the testing of the papers and the quality. There have been a number of appeals filed, particularly relating to the Pre-Exam.
• Nicolas Favre, the Chairman of the Examination Board, explained in detail the steps taken for all the papers to ensure that they are as unambiguous and correct as possible in three languages.
• For example, the drafting in the original language is also checked to ensure that the phrasing is easier to translate. Sentences are read in all three languages to ensure the meaning is the same. There are several re-writes, and members of the EC are used a guinea-pigs to test the papers.
• The papers made by the bench markers during the exam (see below) are used for the initial discussions by the EC's. In some cases, up to 60 members may vote on whether to accept certain solutions.
• I have never heard so much during the Tutor's meeting about the paper drafting and marking process. They are clearly putting a lot of effort behind the scenes to improve the consistency.

• No examination system can be perfect - mistakes can still get through, and many of these can be corrected in the marking procedure. For the others, there is still the possibility of appeal.
• Check the scanned copy you receive immediately after the exam, that it is complete and that the pages are actually in the right order. Particularly, if you have stuck something to the papers you handed in (used by some candidates in A and B), as pages can stick together. During the last 10 minutes of each paper, put everything in order, make sure you have all parts of your answer and number them. Then make a note for yourself of the number of pages you handed in. You can then check when you get the scanned copy - immediately inform the EQE Secretariat of any problems detected.

• Appeal decisions are taken on a case-by-case basis. If you are convinced that the EC has clearly made a mistake, then file an appeal. It will first be examined by the Examination Board - if they do not agree that a mistake has been made, it is referred to the Disciplinary Board of Appeal. 
• Appeals should explain why the answer of the Candidate is correct in response to the exam paper. It does not make sense to file an appeal just explaining why the Examiners' Report is wrong.

• Following appeal decisions like D21/17 (see article on LinkedIn by Stephan Tatzel), the EQE organization has decided to create a new EC just to monitor and where necessary improve the quality of all the papers and the marking procedure. In particular, this new EC will look at the readability for non-native speakers.

5. ABCD PE: Tutors and previous successful candidates can also help improve the quality:

• By volunteering to join one of the EC's - most are involved only in the actual marking, although they can provide input on what should be accepted or not for marks. A small group is responsible for drafting each paper. It is hard to find volunteers, so contact the epi if you are interested.   
• By volunteering to be a bench marker - every year, they need 5 volunteers per paper to sit the exam with the Candidates. These papers are marked anonymously and are used to provide initial discussions among all those marking about what is acceptable, and what is not. The epi has just sent an email asking for volunteers for EQE 2019. In particular, they cannot get enough people to do the D paper. They want someone who get just above 50 points, so not too perfect.
• Tips for benchmarkers: if you want an immediate copy of your answer, use carbon paper. If something is unclear or uncertain, direct comments to the EC may be written. Travel and hotel costs are reimbursed by the EPO through the epi.

6. PE: general

• The questions are written to be black and whit with no shades of grey. However, the knowledge required does not need to be at the highest level. For example, during testing, the guinea pigs must make it without using any books. The basics are found in the EPC Articles & Rules, PCT Articles and Rules, EPO Guidelines and G decisions.
• The claims analysis is based on a simple technical matter - so don't overthink it, and don't look for the gray areas (which is difficult for patent attorneys)
• Much of the wording from the questions and statements comes from the EPO Guidelines.
• When being asked "is this a valid argument?", this should be interpreted as "would you use it?"
• If a mistake is found (either during marking or following an appeal), a recalculation is made on all the results, and the marking of all Candidates may change (even those who did not appeal). However, new letters are only sent to those who went from fail to pass.
• After the marking, a statistical analysis is done to see if there are potentially ambiguous questions, for example 50:50 answers. These questions are reviewed again carefully, and if necessary marks are awarded for both True and False (as happened this year). Candidates are given the benefit if the question seems ambiguous. They sometimes also ask the Board of Appeal for their opinion if the language seems ambiguous.

7. A: general

• Paper A EC explained about the 10 mark penalty for broadening the claim to transparent substrates: transparent substrates are mentioned in D1, but in the general part of D1 (para 001). The specific part in 004 and 005 is limited to glass.
• I think this is sometimes difficult to see when doing the paper. You are looking for the claim language to use and the broadest protection possible. 
• In general on A, I advise to always claim the client's product. So if you broaden, make sure to have a dependent claim where transparent substrate is glass. You will then not lose many marks overall.
• ... and try to stick within the facts given, so don't extrapolate a teaching beyond what the client tells you, and don't create feature combinations you are not told about in the paper, unless the client gives a big hint.

• Many Candidates claimed a product-by-process. This was considered a serious mistake. It is clearly not applicable because the product can be clearly defined using structural and functional elements.

• A broad product claim was expected

• An incorrect Description Introduction lost points. It should not be written as a communication to the examiner ("claim 1 is novel because ....")
• This introduction does not need to be in great detail to get the 5 marks available
• A Detailed Description is NOT expected
• Only need to address the independent claims and possibly one or two dependent claims.
• If the Description Introduction distinguishes the features not in the prior art, a two-part form is not required in the claim itself. If not in the Description Introduction, then it should be in claim, otherwise 1-2 marks lost.

• If more than one independent claim is provided, the worst one is marked. This avoids rewarding a shotgun approach.

• No marks lost if the height was included in a claim to VIG as it was not completely clear to all Candidates that it was not strictly essential.

8. B: general

• Paper B EC explained about the keeping the quality in the claim (or replacing the quality parameter with the SI unit SRI). The major objection is that this is a result to be achieved, and as such, is inherently unclear.
• I think that this is a good illustration of making the paper and looking too deeply. The goal is to find the fall-back position that the EPO will grant. Although it could be argued that there is enough in the description to arrive at the quality result, this results in presenting a claim with at best a 50:50 chance of grant. For B (and A), the solution they are looking for should have an 80% chance of grant.

• There was some discussion about the suitability of D1 and D3 as closest prior art. D1 had more features in common, but D3 had a more similar purpose.
• Paper B EC preferred D1 because it was already solving a similar problem, and invention was an improvement on that. D3 mentions a different metal/alloy and no results.

• Paper B EC explained about the "configured to soften and flow". They felt that if you just had this in your claim, the claim was too broad.
• It was clear to me from the discussions, that applying the penalties mentioned in the Examiners' Report depended on the claims that you handed in as a whole.

• Paper B EC explained about limiting the claim to 5 - 25% Cu. Although technically, it did work, there were a lot of hints that the Client did not want it and it was even considered dangerous.
• Again, best practice here is to make sure you claim what the Client wants to do - if the independent claim is broader, then a dependent claim (here to 5 - 25% Cu) should be added.

9. C: general

• Paper C EC commented on some arguments they saw: A3 was not autonomous (it moves along a track) and A4 could be connected to a supply, but it would not be autonomous.
• Best practice when providing arguments about how an annex may be used is to remember that the skilled person by default follows the teaching of the document - they do not generalise it or change it for no reason.

• Paper C EC considered the claim 6 attack as an easy attack. In general, the details and length of an attack should be based on how easy or difficult it is.
• In other words, where the feature is not trivially disclosed, more argumentation is required.

• Paper C EC expected an attack on both alternatives in Claim 5 (or-claim) so that the claims as whole was invalidated.
• This is a general rule on the C Paper.

• Marking of each answer paper is individual - they read the arguments and reasoning provided. There is no "mechanical marking"

10. PE: general

• The PE has achieved its function of filtering - about 20% of candidates are blocked from proceeding to the Main Exam.
• There may be some changes in the future to further improve the Pre-Exam. These are still in an early stage, but changing the question style from True/False is being considered. 
• A computer-based implementation of the PE is also being considered. Again, at a very early stage. No decisions have been taken yet. 

• Issues at exam with Candidates waiting until the last 5 minutes to fill in the official answer sheet. That is not enough time - reserve 10 minutes to do this.

11. D: general

• There was a discussion about whether the Rules of Procedure Boards of Appeal should be part of the exam. 
• As a professional representative you need to at least know how the actions in first instance may limit the possibilities during appeal. I recommend reading and studying this book Proceedings Before the EPO: A Practical Guide to Success in Opposition and Appeal by Marcus Müller & Cees Mulder
  

• Examiners' Report page 11: the inventive step argumentation for DII was only for explanation and was not needed for full points