Updated 18 Apr 2021: see also my post commenting on the epi discussion paper.Updated 12 Apr 2021.
"It is only when the tide goes out that you see who's been swimming naked"
I already posted these comments on LinkedIn - this post gives a little more background. There was an enormous effort behind the EQE scenes, and a lot of people working many extra hours, but this could not prevent cracks appearing.
On reflection, I think a few long-standing EQE issues may have played a role in creating the problems:
- No effective communication with most candidates. Email is fine for sending standard messages, but there is little chance to request additional information. It is not always clear whether candidates actually receive them and understand the intention behind the emails. A lot of candidates are surprised by changes in exam formats as not everyone prepares using a tutor, or with other students to discuss things.
- Secrecy and little transparency about every aspect of the exam and organization. Seen particularly by candidates who fail - it is very difficult to figure out where marks were missed, why the official answer was preferred, what alternatives were available etc. But this year, it was promised that the exams had been adapted to take into account the new format, but it was refused to provide any details as this was related to the content of the exams.
- Just enough volunteers to make and mark the exams. No one expects perfection - limited resources means that not everything can be addressed. But it is a professional exam, so it should be possible with sufficient preparation to have a reasonable expectation of passing. There is a minimum level that should always be achieved.
- Few real limits for each paper in what can be asked. A real problem for many candidates is the habit of regularly introducing new things not announced before or tested before. It is unheard of in any other professional exam not to have an official detailed syllabus of what you need to know, both for the legal parts and the practical subjects. The REE is too vague to be useful, so candidates prepare based on unofficial study guides (like CEIPI or EQE Guide for Preparation) and doing old exams. There is still no clear distinction between legal subjects tested at Pre-Exam level and Main Exam level.
And it is ridiculous that every year candidates need to have 2000 pages from the WIPO in case a question is asked about a PCT state (in many years, the WIPO and National Law are not needed at all).
- Few real limits for each paper in length and style. Since 2017, an extra 30 mins was added to each Main Exam so that non-native speakers have more time. But there is no clear way in which this is enforced, and it is clear that the time has been eaten up by the exams.
- No effective way to assist those with En/Fr/Ge as a 2nd language. Non-native speakers have a clear disadvantage. The patent attorney terminology manuals are very useful, but reading/typing exams can still be slower. And giving everyone an extra 30 mins has now lost its effect.
- Make e-EQE improvements highly visible, so that candidates know what to expect (platform + content) and can properly prepare.
- Using the new possibilities, better define the content to be tested and make sure it is relevant to daily work.
- Have a proper official syllabus for each exam - articles and rules, sections of Guidelines, case law, OJEPO's.
- Limit detailed PCT questions outside Europe to IP5 countries, and provide resources electronically.
- Remove overlap in testing and preparation (candidates & committees). For example:
- Pre-Exam: limit to only only legal questions, covering procedural and substantive law. Drop Claims Analysis (covered extensively in A, B, C). Use a mix of multiple choice and "D1"-style questions to test D1 level of knowledge. This is main test of legal knowledge.
- Allow ME: A and ME: B to be taken anytime - either with Pre-Exam or Main Exam. These are practically oriented, relating to skills which are being developed early (drafting and amendment).
- ME: A can be cut in half => reduce subject matter, focus mainly on independent claims, provide less prior art.
- ME: B is ridiculous with client giving you claims. Go back to old format, cut in half => reduced subject matter, only include a few claims, provide less prior art.
- ME: D - limit to current D2 (D1 is now in Pre-Exam). But also include some basic trademarks/designs and basic trade secrets. Test legal concepts, and not substantive patent law (or greatly simplified substantive law).
Expand basic foreign knowledge (JP, US) to include CN, KR (IP5). Also define clearly what you need to know. Possibly also test something about those foreign national patent systems. Knowledge of DE, FR and UK systems would also be useful.
- ME: C has much repetition in attacks. Cut in half => fewer claims, provide a lot fewer documents. There should also be a proper infringement part in EQE - it makes most sense to add it here as technical understanding is important.
Perhaps also look even wider, putting the EQE in a broader perspective. A lot of effort is put into only passing candidates who are fit to practice, but there are many other people who interact with the EPO at different levels:
- Permanent education required for qualified attorneys. For most, a lot of the knowledge is lost within a few months of taking their last exam. I know there were some attempts in the past to introduce this, and I know that no system is perfect, but something must be better than nothing. This would also address the issue of the varying knowledge levels of grandfathers \ grandmothers.
- European formalities officer qualification. These are the people who have the most up-to-date procedural knowledge in the offices, but the levels of knowledge vary wildly.
- European patent agent qualification. Similar to US, where a basic knowledge of procedural and substantive law needed for those interacting with the patent office. This would be useful for people who do not wish to become patent attorneys (yet), or work in a company's patent department, or work in a lawyer's office.