Testing times for the EQE exam committees

The European Qualifying Examination (EQE) is inordinately important to Europe's IP profession, as it determines the standards required to practice as a patent attorney before the EPO. So Merpel's whiskers began twitching a few weeks ago when a few correspondents told her that the quality and integrity of this examination was under threat. Skullduggery was alleged, then it was loudly denied, and skullduggery is the one thing surely guaranteed to rouse Merpel from her customary slumber.

As her human agents tried to sort out the facts, recounted to them variously by anonymous informants and by others who identified themselves but asked for anonymity, passions ran high. In the end, Merpel believes there to be little dispute as to what actually occurred (and indeed it is well documented, the IPKat team having seen a variety of documents confirming what follows). Nevertheless there is a large measure of disagreement over why these events occurred, and even more disharmony as to what the events mean for the future direction of the EQE.

Although some parties asked her not to publish anything, especially in the lead up to the 2013 EQE, those exams are now over and next year's EQE is about as remote as can be. Furthermore, Merpel is reliably assured that there will be no changes to the format of the 2014 EQE.

Therefore, now appears to be an appropriate time for Merpel to share her version of events, and to provide her tentative conclusions. The story is not (in the view of Merpel and her team) a matter of confidentiality. After all, most of what follows is known already to a reasonably wide group, i.e. the EQE examination committees (ECs), made up of around 150 members. Or at least that's how many members were on the committees until very recently …

"You ain't reappointed."

Late last year, the EPO told 19 of its staff members who serve on the ECs (which set and mark the EQE papers) that they were being stood down and would not be reappointed on January 1, 2013. Both the decision not to reappoint these EPO employees, and the manner in which the action was taken, caused a great deal of upset and anger. While there has been a partial reversal (about one-third of the 19 have been reappointed) and while there has been an apology, feelings are still running very high.

EQE Committees - a brief synopsis

The EQE is jointly run by the European Patent Office (EPO) and European Patent Institute (the representative body of all European Patent Attorneys, which understatedly styles itself as epi). Overall direction of the EQE comes from the four members of the Supervisory Board. Below this, the eight members of the Examination Board control the direction of each year's examination. The actual work of setting and marking the papers is carried out by the 150 or so members of the aforementioned committees, the ECs, of which there are four.

On both boards, there is strictly equal representation from the EPO and epi (two each on the Supervisory Board, four each on the Examination Board). On the ECs, depending on whether or not one counts inactive members, the mix ranges from 50% to 65% epi versus 35% to 50% EPO members. These ratios, as well as every other aspect of how the exam system works, are set out in the rules governing the EQE, a Regulation known as the REE and its Implementing Provisions (the IPREE).

All members of the ECs are appointed by the EPO President upon nomination by the Examination Board for a two year term and it had been the established practice that members continued to be renominated every two years until they choose to retire from the committee or from their job - indeed some epi members have continued to serve long after they retired from active practice. EPO members who are appointed to Boards of Appeal and other senior positions usually retire at that point also.

Merpel is reliably informed that within the ECs, the interaction between those who work for the EPO and those who practice as attorneys often produces lively and constructive debate when setting the paper, when deciding marking schedules, and when marking scripts. She is reliably told that the balance and tension between the views of those who operate on different sides of the European patent system (the poachers and the gamekeepers, if you like) results in a much better, more robust, and higher quality EQE, and this interaction is one of the aspects that the committee members most jealously guard.

The fall-out

The removal of the 19 EPO members caused disquiet (to put it mildly) for several reasons, chief among which was that the move was unilaterally imposed by the EPO. There was no prior consultation with epi, who are equal partners in the examination system, or with the chairs of the four ECs, or indeed with those EPO employees whose committee membership was to be terminated.

While all of the EC members are regarded as valuable by their colleagues, what rankled particularly with EC members was that some of those not reappointed were already involved in the preparation of exam papers for future years. EQE papers are written largely by individual committee members, or by a very small group working closely together, who create the scenario on which each paper is based and typically write the complete first draft before handing their paper over to the larger committee to improve and road-test. Some of those whose appointments were not renewed were actively writing future years' papers.

Another grievance was the loss of institutional experience within the committees resulting from the loss of so many long-standing members at once. On this point, Merpel understands the argument that new blood is needed from time to time, but the internet (her entire source of medical knowledge, both real and metaphorical) tells her that complications can arise from massive transfusions in too short a period of time. In any event the ECs have received new blood most years as committee members retire and are replaced naturally.

Reaction to the initial non-reappointment came from different quarters in different ways. At an official level, epi immediately engaged with the EPO in a number of meetings. More unofficially members of at least two of the ECs wrote very strongly worded letters of protest at how the affair had been handled (these letters were seen by IPKat team members, one of whom was of a nervous disposition and is still recovering). The result was a partial reversal by the EPO with the reappointment of a third of those who had been taken off the committees, along with an apology and a promise to do a better job next time.  The reappointed members are understood to include all of those who had been actively involved in question setting, which some of Merpel’s informants believe rectifies the situation, whereas for others the reversal was insufficient to dispel the disquiet.

Merpel's analysis

Different people whom Merpel consulted ascribed wildly different motivations to the EPO's decision to reduce the level of participation of its staff in the ECs. Similarly, she heard diverse views as to what impact (if any) this saga will have on the future direction of the EQE. Faced with these conflicting accounts, here is what she thinks is happening.

Cats are not famed for long-term romantic commitments, and Merpel is at best an amateur student of human marriage. She has observed that when a married couple contribute jointly, but in individually different ways, to running a household or raising a family, grievances over who is contributing more (or which kind of contribution is worth more when they are of a different nature) can arise slowly and silently, yet erupt without warning.

Merpel thinks she knows what this story is really about

The EPO and epi are like a mature married couple who have been jointly looking after the EQE for 35 years now, and each has contributed in its own way. The financial  cost of the EQE is far in excess of the money raised from candidates' examination fees, and it is not borne equally. The EPO pays more towards the running of the exam, that much appears certain. What is not certain is how much it costs. Reading between the lines (or reading the lines themselves if one has seen the minutes of certain meetings), the EPO has clearly arrived at the conclusion that the EQE simply costs the EPO too much.

The contribution of epi is primarily the time its members spend setting and correcting examinations. That time is not measured, and no payment is made to the epi members for the work, which they do at weekends, in the evenings and by taking annual leave. Since no measurement is made of how much time epi members actually spend on EQE work, for accounting purposes a nominal rate is attached and a nominal amount of time is attributed.  The amount of time is deemed to be the same amount that the EPO allows for its own examiners and lawyers who are EC members to do their EQE work (EPO employees get a reduced caseload if they serve on the ECs). In both cases, many suspect that the allocated time is an underestimate of how long it actually takes to correct a batch of papers.

As a result, the figures produced by the EPO for the cost of the EQE are disputed by almost everyone Merpel has heard from - which in fairness does not include those who prepared these figures, though their views are welcome and will be published here if they wish to respond.

Without having accurate costs for all of the inputs to this complicated system, each party is liable to feel aggrieved that its own contribution has been underestimated or undervalued over the years. Given that we are discussing costs which run into millions of euros, it is baffling to Merpel that there is no agreement on how much it all costs, and surely one of the items that urgently needs to be done is to accurately audit the time spent and costs incurred by all involved?

Other suggestions have been made about reducing costs, and in this regard Merpel thinks some in the EPO may be guilty of raising bogeymen (you know the sort of thing: if we can't reduce costs one way, then we'll have to consider alternatives, and you'll like them even less …). Examples of these suggestions include holding the exam only in alternate years, or dispensing with the systematic double-marking of papers. Such suggestions have been made and rejected previously, and there is no sign that there is any appetite for such changes anywhere within epi.

Any far-reaching changes would definitely require amendment of the IPREE (which needs the agreement of the Supervisory Board), and in some cases of the REE (which needs the agreement of the Administrative Council). The view of those better informed than Merpel is that no such changes are on the cards and that if proposed, they would almost certainly fail to achieve agreement. So for now, the status quo remains.

So where does the EQE stand now? It would seem that the precise level of involvement of EPO staff over the next few years needs to be thrashed out between the EPO and epi, and that some certainty ought to be given to serving members as to their future tenure and the expected level of work required of each member of the ECs in coming years. What would probably be most welcome would be an official statement (from the EPO, or jointly from the EPO and epi) as to a definite roadmap for the EQE over the coming years, to lay to rest the wilder rumours that have done the rounds.

What has struck Merpel most about this affair is that even those correspondents who seemed to be most in disagreement within the profession were united by a genuine desire to maintain the EQE as a high quality examination, and to ensure that nothing is done to endanger the exam or diminish its standing.  Merpel hopes that this unanimous desire will assure EQE candidates that the present difficulties will not be allowed to impede the continued operation of a high quality examination.