Saturday, September 19, 2020

EQE 2021 - which legal texts to use?

** 20 Sep 20: updated to clarify  differences with Pre-Exam,  and to add new Guidelines cycle **
To remove one worry for candidates, answers for the Main Exam will be accepted based on legal texts valid on 31 Oct 2019 (official date for EQE 2020) and/or 31 Oct 2020 (official date for EQE 2021). 

This is a welcome flexibility, but candidates still need to choose what to use and what to update. This has always been an issue, but it will be more complicated this year. I get asked this often 😕, so I will try and explain it. See also this earlier post regarding the situation for EQE 2020.

I will be updating all my EQE-specific study materials to provide versions valid on 31 Oct 2020.  If new EPO & EPO-PCT Guidelines do appear, then I will also make new versions available at the end of Nov 2020. However, based on the EPO announcements and SACEPO minutes, it looks like the Guidelines will move to a new revision cycle from 2021, namely 1 March. 

General recommendations:
  • Don't worry too much - because "recent changes" are blurred, the exam committees are pragmatic and flexible about what they accept in the answer - either the official versions for that exam, or newer ones. Very little of the exam anyway is based on such changes.
  • For EQE 20xx, use the legal texts and documents valid on 31 Oct 20xx-1
    • but also use the latest version of the Guidelines available in 20xx-1. As a practicing attorney, you should always be aware of the most up-to-date materials. If you use versions made available after 31 Oct 20xx-1 to answer questions, you will not be penalised. In some cases, it may match the 31 Oct 20xx-1 materials more closely.
  • But be pragmatic and don't just print out a lot of books or buy new ones. It is better to update older versions yourself by going through the changes in detail. The EPO provides some track changes versions and the WIPO usually uses change bars.
  • Only transfer a lot of notes and annotations to a new version if you are using very old materials.
  • If you do not use an "official version" during the exam, make a note once in each EQE paper of the Guidelines version you use. It is not required, but it makes it easier for the marker.
Summary for Main Exam EQE 2021:
  • They will officially accept answers based on legal texts & documents in force on:
    • 31 Oct 2019 (including EPO & EPO-PCT Guidelines version 1 Nov 2018)
    • 31 Oct 2020 (including EPO & EPO-PCT Guidelines version 1 Nov 2019)
  • They will also accept answers based on legal texts & documents in force:
    • after 31 Oct 2020 (including any updated EPO & EPO-PCT Guidelines version 1 Nov 2020, if available)
  • Recommended for EQE 2021, use the legal texts and documents valid on 31 Oct 2020,
    • and the latest version of the EPO & EPO-PCT Guidelines available (1 Nov 2020 if available, or 1 Nov 2019). Don't use the earlier versions.

See below for the background and explanations:
In normal years, the Main Exam paper time line is typically:
  • 20xx-2
    • Start paper for EQE 20xx, decide on legal principles to be tested
    • 1 Mar 20xx-2: new cycle - New EPO & EPO/PCT Guidelines enter into force - officially for EQE 20xx
    • Refine paper, some possibility for major changes
    • 1 Nov 20xx-2: old cycle - New EPO & EPO/PCT Guidelines enter into force - officially for EQE 20xx
  • 20xx-1
    • Minor changes only
    • Late spring: translations made and checked
    • 1 Mar 20xx-1: new cycle - New EPO & EPO/PCT Guidelines enter into force - officially for EQE 20xx+1
    • 31 Oct 20xx-1: Cut-off date for legal texts. EPO Guidelines from 1 Nov 20xx-2 are still in force.
    • 1 Nov 20xx-1: old cycle - New EPO & EPO/PCT Guidelines enter into force - officially for EQE 20xx+1
    • Appr. Nov: papers finalised for printing & distribution
  • 20xx
    • End Feb: EQE 20xx held
    • March/April: Committees use papers from guinea-pigs to determine marking instructions
    • Early Summer: Marking by 2 independent markers, based on marking instructions
    • Summer: Additional marking if 2 markers differ too much
    • Late summer: Results published
Rules of thumb:
  • Most of the legal principles being tested have been in force for many years
  • Recent legal changes are usually tested in-depth about 1.5 - 2 years after they enter into force
  • Recent G decisions are usually tested explicitly in-depth about 1.5 years after publication in the OJ EPO
  • A more superficial question is sometimes possible within a shorter period
  • Some changes are known well-in advance, like fees and PCT, so a shorter period may be possible
  • The preparation time for Pre-Exam is shorter, so legal changes from about 1 year earlier may appear explicitly to be tested
  • If they expect something to be changed, they will usually avoid asking about it. For example, if there is a referral to Enlarged Board.
  • Ancillary Regulations: has no real value as an official reference any more - it was intended to be the most relevant OJ EPO's, but they stopped updating it. So many texts are obsolete, and many useful OJEPO's were not included. The true "Ancillary Regulations" are actually the OJ EPO's cited in the Guidelines and in your legal reference book. It makes more sense to collect OJEPO's texts yourself that you have needed during preparation to answer practice questions and/or old exam questions.
So, the committees always take into account changes that occurred after making the papers:  
  • Unless specified otherwise in the question, the date for answering the papers is the actual date of the exam (e.g. can we still file an appeal?)
  • During marking, they officially take into account the status of the law on 31 Oct 20xx-1. Answers based on these texts are always accepted.
  • You are not penalised for using more up-to-date law - they also accept answers correctly argued based on Articles/Rules, Guidelines, OJEPO's or G/J decisions updated after 31 Oct 20xx-1
  • But you should not be using new T decisions to support your answer - they are looking for established case law (for Guidelines or OJEPO)
  • They usually penalise you for using old law
The current cut-off date of 31 Oct complicates matters even more when considering Guidelines being revised under the old cycle (in force 1 Nov). The new 1 Mar cycle is welcome as it gives candidates much more time to update their materials, and still use a reasonably up to date version.

The review, revision and translation efforts needed means that the latest date that changes can be included in a new version of the Guidelines is about 3-4 months before they enter into force. Later changes can only be included a year later. So, practically the internal EPO cut-off for the old cycle (1 Nov) was 1 July, and with the new cycle (1 Mar) will be 1 Nov. 

Rules of thumb for using Guidelines:
  • If you use the official version of the Guidelines EQE 20xx, the texts are legally out of date (1 Nov 20xx-2). But they reflect the status of the law when the exam was made. So, if you answer based on this, the answer is always accepted.
  • They have always accepted answers based on the newest (1 Nov 20xx-1) version of the Guidelines because these are legally correct, and some of these changes were in other sources (decisions, OJEPO's) available before 31 Oct 20xx-1.

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