Thursday, June 3, 2021

EQE 2022 - which legal texts to use?

 

There are no details yet on which digital references will be allowed or available during the exam. So, you may still need to print your references just before the exam.

During EQE 2021, External References were available for digital reading and searching, but were limited to the EPO website only. These were the original versions of the references, and no annotation or highlighting was possible. Copy/paste was available from the
references. No details yet on what will be available in 2022.

Answers for the Main and Pre-Exam will be accepted based on legal texts valid on 31 Oct 2021 - REE (OJ SE2, 2019) Art. 13(1)(c), Rule 2 (this is still the old REE - it is likely to be updated this year. There was already an updated Instructions to Candidates - OJ 2021, A13).

I will be updating all my EQE-specific study materials to provide versions valid on 31 Oct 2021. Hopefully, many of the references will be made available digitally during the exam, so that this set can be minimised.  

The EPO-EPC and EPO-PCT Guidelines have moved to a new revision cycle, namely 1 March each year. If the EPO website is available again during the exams as an External Reference, the 1 Mar 2022 versions will be the versions in force and available digitally. The 1 Mar 2021 versions will only be
available on-line in the EPO-EPC Guidelines Archive and EPO-PCT Guidelines Archive as PDF's.

During EQE 2021, the exam committees were pragmatic and flexible about what they would accept to support an answer - either the official versions (valid on 31 Oct before the exam), or newer versions available digitally through External References.

General recommended:
  • For EQE 20xx, use the legal texts and documents valid on 31 Oct 20xx-1
  • As a practicing (trainee) 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. 
  • 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 exam of the Guidelines version you use. It is not required, but it makes it easier for the marker.
Summary for Main and Pre-Exam EQE 2022: 
  • They will officially accept answers based on legal texts & documents in force on 31 Oct 2021
  • They will also accept answers based on legal texts & documents in force after 31 Oct 2021 (including any updated EPO & EPO-PCT Guidelines version 1 Mar 22)
  • Recommended for EQE 2022:
    • look through the most important EPO & EPO-PCT Guidelines changes in Feb 2022 - the EPO usually provides a track changes version
    • many of these changes will be based on Case Law, OJ EPO notices and practice changes that were already known in 2021, but missed the update one year earlier. 
    • update the 1 Mar 2021 versions of the Guidelines yourself

CLICK BELOW for the background and explanations: 

In normal years, the Main Exam - D Exam time line is typically:

  • 20xx-2
    • Start exam preparation for EQE 20xx, decide on legal
    • principles to be tested
    • Refine exam, some possibility for major changes
  • 20xx-1
    • Minor changes only
    • Late spring: translations made and checked
    • 1 Jan 20xx-1: New Euro-PCT Guide update date, but only available in Jun/Jul 20xx-1 -officially for EQE 20xx
    • 1 Mar 20xx-1: New EPO & EPO/PCT Guidelines enter into force - officially for EQE 20xx
    • 1 Jul 20xx-1: New PCT Applicants Guide and Administrative Instructions enter into force - officially for EQE 20xx
    • 31 Oct 20xx-1: Cut-off date for legal texts. EPO Guidelines from 1 Mar 20xx-1 are still in force.
    • 31 Oct 20xx-2: WIPO Applicants Guide for EQE Candidates made available as two PDF's - officially for EQE 20xx
    • 31 Oct 20xx-1: New National Law PDF (not updated every year)
    • Approx. Nov: exams finalised for printing & distribution
  • 20xx
    • 1 Jan 20xx: New Euro-PCT Guide update date, but only available in Jun/Jul 20xx (too late for exam) - officially for EQE 20xx
    • End Feb / begin March: EQE 20xx held
    • 1 Mar 20xx: New EPO & EPO/PCT Guidelines enter into force - officially for EQE 20xx+1
    • March/April: Committees use exams 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 new 1 Mar cycle for the EPO Guidelines are 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 new
cycle (1 Mar 20xx-1) will be 1 Nov 20xx-2..

Rules of thumb for using EPO-EPC and EPO-PCT Guidelines:
  • They accept answers based on the newest (1 Mar 20xx) 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.

2 comments:

  1. Any tips for the new C paper? I am a first time sitter. I was lost when comparing paper 2021 to previous years.Thanks!

    ReplyDelete
  2. Is it true that there are no more calendars for the EQE? Instead we have to rely on the OJs? OMG :-(

    ReplyDelete