Controversy looming for this year's pre-EQE

The pre-examination European Qualifying Examination ("pre-EQE") was introduced in 2012 as an entrance exam to the main EQE for European Patent Attorneys. Only after passing the pre-EQE is a European patent attorney trainee allowed to enroll for the Main Exam. 

Controversy over the pre-EQE is not new. In previous years, candidates have successfully appealed to the disciplinary board of appeal (DBA) against their result on the grounds that the answers to some of the questions were ambiguous (D3/14)

This Kat has been alerted to the fact that, this year, the questions for the pre-EQE were particularly ambiguous, setting the stage for the greatest pre-EQE controversy so far. 

UPDATE: The pre-EQE results have now been released, see here.  
The Examiner's report can be viewed here


2018 pre-EQE

The pre-EQE

The pre-EQE is a multiple choice exam, with 20 questions, each question having 4 statements for which candidates must indicate true or false. A complicated marking scheme dictates that for each question: 4/4 = 5 marks, 3/4 = 3 marks, 2/5 = 1 mark, and 1/5 = 0 marks. The complicated mark scheme highly rewards getting all of the statements within a question right, or equivalently, heavily penalises one mistake in a question. The pass mark is 70/100. 

The paper is divided into two sections, legal questions and claim analysis. The claim analysis section deals with issues of clarity, added matter, novelty and inventiveness with regards to a series of claim sets, amendments and prior art documents.  

It may seem odd to those used to EP patent application prosecution, that claim analysis may be reduced to mere true or false statements. Deciding on the closest prior art and inventiveness without the opportunity to argue your point can feel, at times, unfair. At the very least, it is hoped that the issues presented in the exam should be fairly clear-cut and unambiguous. 

To complicate matters, the pre-EQE may be taken in English (EN), French (FR: "Examen préliminaire") or German (DE: "Vorprüfung"), for which there are corresponding versions of the paper. It is intended that the answers to the EN, FR and DE papers are identical. 

Every year, DeltaPatents provides their model solution to the pre-EQE (EN version) before release of the official mark scheme. In recent years, the German Plattform für den Gewerblichen Rechtsschutz (GG-IP) has also been providing model solutions (DE version). It has become customary for candidates to check their solutions with these model answers before the release of the official mark scheme and results. In 2017, the DeltaPatents solution was identical to the official solution.

Controversy

Given the subject-matter and format of the exam, it is perhaps not surprising that the pre-EQE has already been beset by controversy. In 2015, following successful appeal by a candidate to the disciplinary board of appeal (DBA), the EPO published an Addendum to the 2015 pre-EQE, in which it was decided to a award marks for either True or False for 2 statements in Question 15 and 17 respectively. After some initial uncertainty, the marks of candidates who did not file an appeal, but who would have passed in light of the changes, were upgraded (IPKat here and here).

This year

The 2018 pre-EQE (EN, FR and DE) took place at the end of last month. This Kat has been alerted by colleagues to a worrying disparity between the solutions provided by GG-IP and DeltaPatents this yearParticularly, the GG-IP and DeltaPatent model answers differ on 5 points, corresponding to an alarming 10 marks (out of 100), (for comparison, last year's GG-IP solution differed from the DeltaPatents solution on 2 statements, corresponding to 4 marks out of 100). The complicated mark scheme of the pre-EQE causes ambiguity in a few statements to have a disproportionately large impact on a candidate's marks. The official solution has not yet been released. 

The disagreement was in regard to the answers to questions 11.2, 12.4, 14.3, 16.1 and 18.1. 
Pre-EQE 2018: Water filter lid

All of these questions are also highlighted as problematic in the DeltaPatent pre-EQE blog, and from a quick analysis of the paper, this Kat agrees that the answers to these questions are not clear cut (at least in the EN version). Q12.4, for example, relates to Article 84 EPC (clarity) and asks whether a feature of a claim simply claims a solution to a problem and not the technical features that provide this solution:

"...a counter configured to automatically increment in response to water being added to the jug"

DeltaPatents thinks no, Article 84 EPC is not contravened, whilst GG-IP thinks that it is. This Kat notes that somebody involved in the prosecution of European patent applications, might expect the EPO to reject such a claim, but that the Examiner may be persuaded by argument. 

Q16.1 relates to claims directed to a plurality of interrelated products. GG-IP concluded that 2 independent claims (a 1st claim directed to a filter lid for a water jug and a further claim directed to a jug with a filter lid), are interrelated products, whilst DeltaPatent believes that they are not. 

Worryingly, still further issues with the claims have been raised in the comments on the DeltaPatent blog (that do not even correspond to the differences between Delta and GG-IP answers). A particularly problematic question, according to DeltaPatents itself, is Q 12.2 which concerns the correct two-part form for a claim in view of a stipulated prior art document. 

The DeltaPatent and GG-IP bloggers are experienced European Patent Attorneys and tutors. The disparity between their solutions clearly demonstrates that the claim analysis section of this year's pre-EQE is far from unambiguous. 


Kat confused by claim analysis
Whilst the solutions to the EN, FR and DE versions of the paper should be identical, translation issues can lead to different interpretations. Indeed, according to D 1/94 a translation error may be considered to contravene Article 11(3) of the Regulation on the European qualifying examination for professional representatives (REE) "since this provision assumes that the translation from the language selected by the candidate into one of the official languages of the EPO is totally correct". However, such a magnitude of issues with this year's paper suggests this is not just a translation problem.

This Kat has been unable to find a model answer for the FR version of the paper, but feels this would be a useful comparison. 

As a gateway to the main EQE, passing the pre-EQE is of considerable importance to a trainee European patent attorney. A fail means a candidate must wait about another 2 years before they can take the Main Exam. The degree of ambiguity in this year's questions will thus be causing significant anxiety. 

The official pre-EQE marks scheme and results will be published in the coming months. Stay tuned to IPKat for further news. 

Controversy looming for this year's pre-EQE Controversy looming for this year's pre-EQE Reviewed by Rose Hughes on Wednesday, March 21, 2018 Rating: 5

18 comments:

Stop the pre-exam! said...

As the Pre-exam has not increased the pass rate of the actual EQE exam, one wonders about the necessity to maintain the pre-exam. Especially since in every year there are unclear questions the reply to which has to be corrected by the disciplinary board.

It is not because candidates have been successful at the pre-exam, that they will be successful at the actual one!!

May be after July it will be time to revert to different papers A and B for chemists and non-chemists.

If the aim of the EQE is to determine if candidates are fit to practice, the minimum would be that the different practice in chemistry and non-chemistry is taken into account.

Anonymous said...

Yes, its bad that the questions are ambiguous. And I can understand criticism of a multi choice exam for a subject where often there is no correct answer. But...

Marking written exams is amazingly subjective. The same marker cannot mark all scripts, or even if he/she does he can be in a bad mood one day and a good mood the next. That introduces a far wider variance in accuracy of marking. Multi choice is the only way to eliminate this. It's also used for pilots' exams, where as you can imagine the opportunity for argument is even greater.

It is amazing that these questions are independently checked by skilled people who are prepared to do it for free, and good that the examining authority (eventually) takes into account the ambiguous questions and corrects marks. I wish all exams were this rigorously checked and fair. I suspect that most of our degrees, A levels etc were nothing like as rigorous. And yes I am still bitter about grade 2 piano.

Wait for the examiners report said...

To be completely honest, this article at this stage is slightly exaggerated. It seems that the Delta answer is quite close to the model solution, judging from one candidates comment on their blog:

Anonymous: "I got 98 marks and according to the Delta answers I should have got 96. So I think there is only one mistake from Delta."

The Delta Patent answer seemingly received 98 points which is close enough to perfect. If anything can be derived from the differences between the blogs of Delta and GG-IP at first sight, it is that GG-IP may want to review their answers for what went wrong. I for one agree with the Delta answers (Q 16.1 and Q12.4) without hesitation from facts given in this blog.

Delta patents indeed has experienced patent attorneys. However, a brief check of the contributors of GG-IP would have revealed that the answers are provided by one very recently admitted patent attorney and one trainee patent attorney. Not exactly what should be called "experienced".

Anonymous said...

It's a few years since the pre-exam, I passed first time by a reasonable margin, and I am still annoyed by how ridiculous the mark scheme is since they bumped the pass mark up from 50 to 70. If you get 80% of the right answers you can still fail depending on which block of questions you got right (3/4 for all 16 questions, 4/4 for 4 questions=68%).

Jim said...

I've heard similar anecdotal evidence that this year's EQE C and D papers were too ambiguous. Judging by the comments on the Deltapatents blogs, the issues do appear to have affected many candidates.

At least the EQEs are much fairer than the UK finals, the passing of which is widely considered to be a lottery rather than a fair reflection of fitness to practice. One candidate last year had his marked P2 exam script returned and the difference in marks awarded by the two Examiners was 7 marks! Yet still no-one is talking about the very low pass rates of the UK finals, in particular by people who've already passed the EQEs...

(FYI I've passed both)

Alistair said...

I think any controversy may, to some extent, have been avoided.

The Examiner's report has been issued and two questions are marked as both True and False, possibly pre-empting a flurry of appeals.

Anorn said...

Interesting that the exam report already acknowledges that two questions were ambiguous. Clearly it is getting more difficult for them to set clear-cut questions. I can't imagine that the ambiguity was in their minds when the questions were set, so I wonder when the decision was made to accept T and F for those two questions.

What is now the point of the pre-exam anyway? If it is not having any effect on the pass rate of the main exams, then it is presumably useless.

If they are trying to reduce the pass rate to keep unprepared candidates from taking the main exam, I would have thought it would be easier to just make the legal questions harder - these being (in my view) more useful preparation for the main exam in any case. No-one ever answers multiple choice questions set by the Examining Division...

Anonymous said...

Yes, I am being a pedant. But the questions aren’t multiple choice. There are multiple questions but each question has only a choice of true and false rather than A, B and C etc.

Anonymous said...

A pedantic patent attorney arguing that "multiple" (choice) doesn't cover "two" (choices)?

Anonymous said...

From the pedant,
If you are given one answer, you have no choice; if you have two possible answers, you have a choice; if you have more than two possible answers then you have multiple choices.

Anonymous said...

Which statements are the best candidates for a succesful appeal? 11.2, 12.4, 14.3, 16.1, 18.1, 18.2, 18.3, 18.4?

Anonymous said...

This pre-EQE still contains too many ambiguous questions e.g. Questions 14.3, 16.1, 18.4. These questions are certainly arguable and may be worth appealing. Ambiguous questions massively affects timing and this year, it appears that many candidates struggle for timing.

There is no point having a pre-EQE that is going to be just as hard as the main EQE exam. You might as well scrap the pre-EQE exam. Claim analysis does not fit well with the T/F format e.g. inventive step questions.

JK said...

Too many ambiguous claim analysis questions this year. A poor exam that does not truly reflect a candidates ability.

Anonymous said...

Keep the Pre-exam and get rid of the main exam!
It's just as difficult, but cheaper and easier to mark!

Anonymous said...

I think 5-10 marks should apply to compensate the difficulties i.e. complexity, ambiguity and timing of pre-EQE this year.

Debate still raging on Delta Patents Blog -

http://pre-exam.blogspot.co.uk/2018/03/pre-exam-2018-results-are-out.html#comment-form

Anonymous said...

Which statement in the pre-exam of 2018 has to biggest chance on a successful appeal? Which statement is in itself clearly ambiguous? Comment + arguments!

Anonymous said...

18.1 A technical effect of distinguishing feature 3) is that an indication of an amount of water in the jug is provided.

distinguishing feature: 3) the detector is able to detect water within the jug reaching a predetermined level.

Does the detector gives an "Indication of an amount"?
The meaning of an amound is ambiguous, does is mean 1) "an indication of presence of water" or 2) "an indication of a quantity of water"?

The detector can detect the presence of water but not give an indication of a quantity of water. The first interpretation would lead to an other answer for statement 18.1 than the second interpretation.

Anonymous said...

Statement 18.4

For question 18, assume that document D1 is the closest prior art for claim V.2 and the distinguishing features are the following:

3) the detector is able to detect water within the jug reaching a predetermined level.

For the assessment of inventive step of claim V.2 it is a valid argument that none of the documents D1, D2 or D3 disclose a water level detector.

Is it a valid inventive step argument when a skilled person considering D1 as the closest prior art, that this same document does not disclose a water level detector?

In my view this is not a valid inventive step argument, but more a novelty argument. It may be different in case the statement also considered the common general knowledge.

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