Sunday, April 18, 2021

e-EQE – epi discussion paper - comments

8 Jun 21: forum link added. The epi recently published their discussion paper on proposed changes to the EQE from 2024. See below for some comments, following on from my earlier comments on the future of the EQE.  It is also possible to discuss using the epi-learning forum (open to all).

My conclusions: 
  • Some good ideas, like allowing an earlier start of learning, but I miss any proposals to improve the organisation. 
  • I miss a proposal for permanent education - the EQE tests whether a small number of representatives are fit to practice at that moment. 
  • I hear more and more candidates choosing to follow a law degree instead of the EQE because of the unpredictability of passing. Having everything modular will help prevent this getting larger.
    • But we also need a clear syllabus for each part, transparent marking and a proper way to address the concerns of the average non-native speakers.
  • Infringement has to be added - it is an essential part of being a patent attorney.
My comments:

1. Is the current EQE adequately testing the “fit to practice” criterion? - p.1
  • Some Exam Papers are ... jigsaw puzzles ... rather than testing real skills ...
    • It is not a problem if questions are designed to have one answer - the legal questions are set up like this. Having small puzzles that fit together, like the current Pre-Exam - claim analysis and D2 does mean that you can feel when you are on the right path.
    • However, the general advice to pass currently is to not think too much and give the answer in the Guidelines because alternatives are almost never accepted, even if properly argued. Perhaps that way that the questions are structured needs to be clarified - instead of asking, is it novel/inventive/extension etc, you can ask whether the EPO will object (the Guidelines answer) - candidates should know what will happen during proceedings.
    • The biggest current "puzzle" is the C exam - it is completely out of control (not just this year). There are too many different documents and the pieces you need are not always in the most likely places. Way too long, too many documents, with a ridiculous amount of detail require for argumentation. 
    • The B exam is now going the same way. 
  • All papers should start with 0 marks, and award marks for correct parts. A and B suffer the most because they are negatively marked - you start with 100 marks, but lose marks for each deviation from the expected answer. The problem is that by misreading or misunderstanding a couple of things, you end up running out of materials to use. There is a randomness to passing - if you are on the same wavelength, you pass. If not, you fail. But if you retake it a year later, then you can pass without preparing any differently.
  • Marking of the practical papers should always consider whether a mistake would be correctable in real-life 
      • Why should you be afraid for A of submitting a non-novel claim or non-inventive claim? As the argumentation supplied tends to be brief for A (as it reflects the brief argumentation typically included in a patent application), you should not lose so many marks if a dependent claim is what they wanted. There should be no marks lost for extending a feature beyond the scope of the client's letter, for example.
      • For B, where argumentation is required, the reasoning can be judged better for possibly having a non-novel or non-inventive claim. There should be no marks lost for not abandoning scope based on an instruction by the client if you think it is patentable (and argue this). 
      • Why is matching EVERY feature and correctly defining closest prior art in C such an issue? For an opposition, the main thing is to attack all the claims, get all the documents in, and argue the non-trivial aspects of the feature matching and inventive step. You would not write an opposition like that.
  • Methodology courses - p.1, p.2
    • I may be a little biased ;-), but I am not sure why it is a goal to get rid of these. Most of the methodology courses are based on reverse engineering and save candidates a lot of time that they can use for actually practicing papers. I don't think these will disappear, even with a more modular exam and shorter pieces. 
    • These are currently "needed" because the exams are much too long (so very difficult to do in the time available, especially for non-native speakers), there is no official info about what is to be tested, how the papers should be made, or how they should be marked. The Examiners' Reports are not easy to read and deliberately leave out a lot of details on alternatives that were accepted, or the exact marking. Even if candidates file an appeal, they will never see the details of their marking to see where they lost marks. 
    • If there are tricks that is being taught to pass with little preparation, obviously this should be prevented. But I don't consider pointing out where marks are awarded and how to score those marks as a trick - all marks count equally to the scoring, and candidates should always focus on their strengths and understand what is required. I don't see weak candidates passing just through methodology - more that there are a lot of well-prepared candidates who fail because they do not know how to show their working properly within the time available. Hardly anyone ever gets about 80 marks for certain exams.
    • I agree that it should not be necessary to follow such a course to pass. The committees and boards can influence this already => a clear syllabus that they stick to, openness about the marking and what is expected, using similar formats and styles each year, announcing new subjects to be tested or changes to the marking in advance, publishing several alternatives that were accepted, allowed appealing candidates to see exactly where they lost marks etc.
  • Practical training
    • This varies greatly, depending on where you work and the opportunities available - there should be more guidance on what you should be doing and some help with this. 
    • I agree that that it is better to prepare earlier and not make exam participation dependent on a fixed number of years - for example, a lack of drafting and amendment experience can be compensated by doing more old exams to learn the skills needed. You need the knowledge as early as possible.
  • Suggestion - allow qualified attorneys, lawyers, employees, formalities officers etc. to also sit the modules (without overwriting their scores) to allow them to stay up to date in a structured way. This could already be done for the Pre-Exam (no consequence - they just get marks separately for legal and claim analysis).
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2. General drivers and boundary values - p.2
  • Each module => max. 1.5 hours where there are no unscheduled breaks. Max. 3 hours if unscheduled breaks are available. 
3. Proposal for a modular e-EQE setup - p.3 to p.6 - general comments
  • It is a good idea to allow earlier testing to support daily work.
  • Suggestion: also allow access by some national attorney organisations as well - they can include certain modules as part of a national training, or even use them for permanent education requirements.
  • Why enforce minimum periods between exams or after failing? This will not improve someone's preparation - you do not know why someone has failed (it is certainly not always lack of preparation). Even if it is - one way to prepare is to just try the exams and see where you need to improve, especially if you do not have access to a good mentor or any courses. 
  • And if someone wants to do the exams in a chain, or quickly repeat so that they do not have to learn everything again, why is that bad? The reason in the past was that it cost the exam system money to take and mark the exam - that is not an argument any more with online and multiple choice. If the exams all test fit to practice, why worry about this and complicate registration.
  • I don't think you need to be completely free about when the exam can be taken. Once every 3 months is the most frequent you will really need.
  • It is better to have two shorter separate parts on the same day than to try and cram everything into one block. The D1-1 and D1-2 were fine like this, as well as the Pre-Exam Legal-1/2 and Claims Analysis 1/2. 
  • The separation between practical and legal should be optimised - no technical interpretation of claim-like language should be needed in the L1, L2 or L-final.
4. Proposal for a modular e-EQE setup - Practical Track - p.3 to p.5
  • P1: looks like simpler questions from Pre-Exam Claim Analysis
    • You will need to know some case law - a lot of the Guidelines are based on old cases. 
    • Why are we still testing the two-part form? Every attorney is taught not to use it, and the EPO will not refuse if you include a brief mention of the prior art. It is also never used in many technical areas.
    • I would include clarity and basic inventive step as well - you cannot just learn novelty. Cover the most frequent objections seen in office actions.
    • I suggest combining with P2 and having two P3 exams.
  • P2: looks like more difficult questions from Pre-Exam Claim Analysis
    • Why enforce a minimum period between exams? This will not improve someone's preparation. One way to prepare is to just try the exams and see where you need to improve, especially if you do not have access to a good mentor.
    • I am not sure why unity of invention needs to be tested at all - all the tests in real-life are very artificial and vary widely between technologies. 
    • It is pointless using words like "complex / subtle" in an exam syllabus. All inventions at an exam are borderline inventive.
    • I suggest combining with P1 and having two P3 exams.
  • P3: looks like current A exam and simpler part of B exam
    • This is a disaster to prepare for - it is too vague. You will definitely need to follow a methodology course for this - it will take 5 years before you have at least 2 examples of each type.
    • Better to have two exams - P3-drafting and P3-amendment. Combine P1 and P2 if you have too many modules.
    • I don't agree with having technology specific testing at all - that is not real-life. Technology shifts over time - software is being used in all technologies. Simply be explicit about the subject matters that will be tested and the type of claims that can be expected. Indicate areas that will not (eq sequence listings.)
  • P-Final: looks like C exam and more difficult part of B exam
    • This is a disaster to prepare for - it is too vague. You will definitely need to follow a methodology course for this - it will take 10 years before you have at least 2 examples of each type.
    • There is no reason to include different procedural moments - this introduces a legal element to the practical part. The answer will need to be marked on its suitability as a response at that moment.
    • Just test two elements - opposition (invalidity) and infringement. I know that a lot of people are against testing infringement because it is dealt with under national law, but so is validity. 
      • It does not suggest that a European Patent Attorney can give a legal opinion on infringement, but real-life demand more than just drafting an application and getting it granted by the EPO. You need to draft to maximise infringement. 
      • You also need to avoid decisions during the grant process that will affect this negatively. 
      • In real-life, you need to be able to have an informal opinion on infringement based on Art. 69 EPC. National courses normally cover infringement case law from other countries because the case law develops mainly in the larger jurisdictions. And to be able to discuss the case with national attorneys if needed.
      • I realise that it appears in D2 (which is fine because that is testing more the strategic part), but there is no real test of technical interpretation possible as you have no documents. And D2 expects you to give an opinion on validity and infringement in other countries and the scopes of cross-licence agreements.
      • By not testing infringement, the qualification resembles more a European Patent Agent then European Patent Attorney.
5. Proposal for a modular e-EQE setup - Legal Track - p.5 to p.6
  • L1: looks like the current Pre-Exam legal.
    • "basic" / "complex" is not clear - syllabus MUST be accurately defined.
    • ask in the same style as L2 with legal basis - you need to know this anyway. One of the problems with current Main Exam is that candidates basically have to relearn to answer in a different way. 
  • L2: looks like the current D1
    • I agree with including more from IP5 - much needed. But it only make sense if you also extend the practical part to infringement (see P-Final above).
    • "more complex" is not clear
  • L-Final: looks like the current D2
    • Propose splitting into 2 cases - one more related to validity and portfolio building, and the other more relating to infringement and portfolio attacks. 
    • Clearly state in the questions what should be covered at least the analysis part of the answer.
    • Don't expect procedural details at the same level as L2 (current D1) - no fee calculations, no 10-day critical deadlines, no weekend extensions etc.
    • Cover basis IP5 knowledge. Knowledge of DE, FR and UK systems would also be useful.
6. Passing the new e-EQE - p.7
  • Varying pass-rates for resitters: why should resitters be punished? There is an assumption that it is due to a lack of preparation, but most candidates still have to work while preparing - often they have to do patent work on the day of the exam as well. 
    • Not everyone gets days off to prepare and all the materials and courses they need. Not all candidates have followed national training and exams. Not all candidates have knowledgeable mentors with time to spare.
  • Progressive pass rate: I assume this is not the passing rate, but the number of marks to pass (passing grade). This must depend on how difficult the exam is - I am not sure you can set it beforehand. 
    • with the current Main Exam papers, almost no-one gets above 80 marks. Perhaps there should be a compensation applied if the curve is too low. 
  • Compensation scheme: I don't see why this needs to be scrapped. It will never be possible to separate legal and practical - there will always be an overlap.
    • You could also provide a compensation within each stream, so that some earlier marks may be applied in the final exam.
7. Further aspects and considerations - p.8
  • MCQ and auto-correction 
    • Yes - agree with MCQ. In general, T/F is too black/white for legal, and particularly for claims analysis, to test properly. You are penalised for too much knowledge. A smart MCQ is much better where prescribed. 
    • Even auto-correction is not a problem if each candidate is provided with a detailed marking scheme where marks were lost
  • Open book: moving to closed book is a backward step as candidates will need to access the original sources for the rest of their career.  
8. My additions (some can be implemented before EQE 2022)
  • Electronic (PDF) references: must be allowed as well as certain sites like EPO and WIPO.
    • There are a lot of references, like National Law, and 2000 pages of annexes from WIPO that are only available as pdf and are just for providing up-to-date information. 
  • Non-native speakers: have a non-native review team for each exam from the countries who have a good language level, but not too good. Sorry - no Dutch, Swedish or Danish etc. doing the final review of the English :-). They also need to test whether the exams can be made in time.
  • Make a proper syllabus for each paper and stick to it. Announce changes in content, style or marking (like partial problems on C, amending to a range based on values in a table in B) at least 2 years before implementation. It is not necessary to give a year, but just indicate that those things can be tested in the future.
  • Allow failed candidates access to their marking scheme (for open text parts) - no other exam operates like the EQE, where cannot get any feedback on what went wrong. Candidates have to reconstruct their own marking based on the Examiner's Report. If this was implemented, there will be fewer people appealing.
  • Limit the length in words for each exam / module.
  • European Patent Agent: perhaps also allow someone who passes P1-P3 and L1-L2 to independently perform patent agent tasks before the EPO - filing to grant. This level of expertise is similar to that of examiners., and would allow more opportunities to gain experience. No opposition, no appeals.
  • Permanent Education: if you have well-defined modules that anyone can take, you will see that others will start to use it. Bigger offices will simply require it regularly (every 3-5 years?) as it will help with their arguments regarding all-due care. Formalities offices can pass both L1 and L2 (EPO had a successful pilot project - EPAC - a few years ago looking at this). L1 could actually be done yearly by attorneys or formalities.

24 comments:

  1. What do you think about equal treatment of candidates? From 1979 till now you have more or less same EQE, now a huge retailoring is proposed. Being only an EQE candidate studying and sitting EQE recent years (but at the same time working in the field already 13 years) for me this document looks like a big closing of the system in order to have a very few new candidates passing from now on, in order to have a relative constant number of EPA equal to the current one

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  2. Like a candidate I take it as a total disaster for future canidates. I admit I just read it once, from now on I'll sit and think on it in order to have a more proper opinion on evry point like you do

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    1. Hi Mariya. It will be a mess for those taking exams in both systems, but I think it should make it easier to pass than with the current system - Pre-Exam will be split into legal and claims analysis parts. D will be split into D1 (theoretical detailed knowledge) and D2 (more client related, at a higher level).
      I think you are reacting to the passing grade, the higher grade for resitters, and removal of compensation comments. These can theoretically be used to keep the numbers low, but this is not the intention - I think they are aiming to have a similar system as the Pre-Exam for the multiple choice, where the passing rate is pretty high.

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    2. I'm reacting because I'm coming for better or worse from one of the poorest countries in Europe with only 3 people who passed the EQE living in it. Sometimes people from the bigger countries like DE/UK/FR/NL do not realise how much brain, energy and time we need to spend more than them in order to have equal start because of the country we live.
      I fully agree with your comment "Not everyone gets days off to prepare and all the materials and courses they need. Not all candidates have followed national training and exams. Not all candidates have knowledgeable mentors with time to spare."

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    3. Yes. "Not everyone" means "a very large number" => who have to pass under difficult conditions.
      For example, you deal with fewer European applications and you have to learn the legal vocabulary as well.

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    4. In countries with less than 10 people who passed EQEs the majority of training is done in house or by grandfathers who cannot provide adequate support on EQE learning/sitting/passing. In countries with less EPO practice – with less than 50 European patent applications per year, some EPAs have few European patent applications filed and not at all opposition/appeal cases to train the EQE candidates. In house patent specialists are more often neglected in their study and preparation because companies use external EPAs; supervision is also skipped. On-the-job training, support and supervision by a qualified professional representative is not the case for many candidates for various reasons. Many in-house patent counsels/specialists do not have access to opposition/appeal cases as companies outsource such cases; many such candidates only perform patent searches and freedom-to-operate, do not draft or prosecute; other only draft and prosecute and do not perform freedom-to–operate. In such countries invalidation procedures are very few (for 13 years I have 3). So how can future candidates have equal access to EQE according to the new scheme?!

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    5. Thanks for the details - it is already difficult enough.
      I know the epi was trying to help by coupling members with cases with trainees like yourself. I don't know how that "internship" program is going (see p.8 under "level playing field".
      With the new system, you can start earlier to prepare for the EQE, and doing practice exams will help make up for some of the missing practical experience.
      They also mention more online training by the EPO and epi as being possible, but no concrete plans mentioned.

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    6. To me, the EQE exams should be about checking basic principles and ensuring candidates are competent to understand those basic patent principles like priority, amendments etc...

      Asking obscure questions e.g. validation requirements in Malta or other random legal questions does not in my view test the candidates ability. Equally, everybody knows that drafting claims is a continuous process and you don't always necessarily go with a novel & inventive claim 1 straight away. Its an iterative process. I also find paper B and paper C getting more and more artificial and out of scope of what the EQEs should be testing candidates on.

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  3. And if the current EQE (functioning so many years) does not adequately test the “fit to practice” criterion why not puting all current EPAs to try the new progressive modular exam?!

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  4. What about having EQEs more frequently, like every 3 months or so. Then failing would not be such a catastrophe that throws you back one year (or two years like in 2021)

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    1. There is no reason why the multiple choice based modules should not be given more frequently. The US patent agent exam has a pool of questions, and a selection is made from the pool.
      For any open text exam, it depends mainly on the exam drafting and marking - I assume these will be tailor-made, and not from a pool, so I cannot see them offering it more than twice per year.

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    2. You might take a look at the EPI thread (https://patentepi.org/en/epi/forum/threads/1329). There was a comment from a member of the Examination Committee for the Pre-Exam on this point. As far as I understood, one issue is that the Boards of Appeal make it tough to design multiple choice questions, because they need to be black and white, which I guess means there have to be clear right and wrong answers. I've never heard of anyone appealing the US patent agent exam.

      I like what you wrote about resitting. I completely agree. Needing to take the exam again is punishment enough.

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    3. Thanks for the tip - I did not realise that there was a discussion on that forum.
      Yes - if the questions are posed as True/False, then they have to be black and white. But there is no reason to follow that anymore - they can move to normal multiple-choice.
      A lot are against multiple-choice, but it is very widely used in other exams.

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  5. I agree that a set and clear syllabus would make the exam possible to prepare for. The only other exam that I have ever taken where the syllabus was as vague, and thousands upon thousands of pages of reference material was the US patent exam. It has around 5000 pages just in the MPEP alone. It is difficult to pass the US exam without a methodology course (preferably from PLI if you can afford it).

    I find this is very similar with the EQE. I have felt for a years that the EPO and DP/EPI/others are in a kind of arms race. The current exams have been "cracked". We have enough data to know how to score points and how to break down the information in order to have the best chance of passing. To prevent the "unworthy" (i.e. not fit for practice) from passing, the EPO is then forced to intentionally obfuscate the actual crux of the question. If a question was clear and provided the standard amount of information that we have from a client (or even the Examiner) during out daily practice, then the pass rate is going to be too high. It will be simply “too easy” for those that could afford to take the methodology courses (or our work paid for it).

    Just a side note of how ridiculous things have gotten. If I get a client who walks into my office and tells me that he doesn’t know what was disclosed of his OWN invention at his OWN event (aka Paper B 2021) and then refuses to answer a basic question about it, that is a client who is going to get a good stern talking to. I might even use the phrase, “at what point did this patent application become unimportant to you?”.

    “Fit to practice” should not mean that we are fit to decode the actual question the EPO is trying to ask and the concept that they are trying to test.

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    1. I have heard that before about improved materials and courses causing the exam to get more difficult. I am not convinced - someone from an examination committee would have to comment. If the methodology highlights vulnerabilities in the paper which can be exploited, then it is reasonable to address this in the marking and/or format. But I have heard rumors that they have changed formats in the past to make it less easy to see the answer when using feature matrices - this would be more of a problem because it would make the exam difficult for every one as that is a standard tool to use in practice.

      It is certainly true that a lot of people who just passed join the committees, so it could be that the level of expertise on papers keeps growing. It is then easy to underestimate the difficulty of questions and issues. Normally, this would be corrected by other members of the committees.

      And every year, the Guidelines get longer and there is more case law, so what they can ask increases. They also like to ask new things all the time, so if there is no real absolute checks on what is delivered, it will remain an issue.

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  6. 100% agree with you Pete. the e-EQE papers A,B and C especially this year was a joke. Beyond reasonable for candidates to do especially for papers B and C.

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    1. paper A this year, either deliberate or not, is an example of the EPO trying to obscure/confuse candidates. Paper B was created to basically punish candidates who can't type quickly enough - no thinking time allowed. Paper C subject was inaccessible and completely confusing - hiding bits and bobs of claims here and there. Nobody in real life will split out the claims for you before filing an opposition. It doesn't work like that at all.

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    2. Fully agree! If repeated in the current form, I don't need to bother resitting B or C next year.
      I took the exam in 2019, getting around 40%. I don't expect to get more than 10% this time. I honestly feel cheated by the EPO.

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  7. Sorry to keep banging on about it but many candidates this year felt robbed about the EQE 2021 exam papers. Not only was it a tough time getting adjusted to the new format, the papers were absolutely horrendous in terms of style, difficulty and content. Paper B was impossible to do, paper A was full of confusion and contradiction, paper C subject matter and the split in the middle created all sorts of issues and many candidates were confused by it.

    The only paper I felt was nearer to previous years was paper D.

    I agree with alot of candidates that the set of papers this year were confusing, harsh and a tad unfair on the candidates especially given the last 2 years we had to go through.

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    1. It seems like we will have to wait for the results to see how much of an impact the problems actually had, as they can take quite a lot into account in the marking.
      I don't know if it is a coincidence, but I read somewhere (I can't find it now though) that they will no longer publish the lists with all results, but the results will only be available to each candidate individually.
      So, there will be no way to estimate the passing rates before the official statistics are published (still nothing published for pre-exam). And no way to perform any external analysis.
      Has any one seen anything about the pre-exam passing rate?

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    2. It might be worth creating our own database, with candidates submitting (anonymously) their results. It would not be entirely accurate, but given the number of people who have been engaging in these online discussions it should be possible to get a representative dataset.

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  8. do you guys also receive this document saying that the results are expected in July?

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  9. On 21 June 1300-1600, epi is holding an online conference on "Modernising the EQE". We want a broad perspective from all EPC states, so please join and make your opinion heard. Non epi members can also register.

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