Brief outline of the case
The candidate sat all papers ABCD in 2024.
Only the marks received in paper A, 42, were such that the Examination Board had decided the candidate did not pass the EQE 2024.
The candidate appealed this decision.
The DBA decided to set the decision under appeal aside, to reimburse the appeal fee in full and remitted the case to the Examination Board for a new decision related to Paper A 2024.
The candidate’s point of view
The candidate submitted that his answer to paper A had been incorrectly marked as a result of mistakes which were serious and so obvious that they could be established without re-opening the entire marking procedure.
He claimed a failure of Examination Committee I to apply the marking scheme as published in the Examiners’ report and a failure of the Examination Board to provide, with regard to the dependent claims, both a model answer and an appropriate marking scheme broken down to each of the expected dependent claims in order to enable a consistent marking of the candidates’ answers.
These mistakes made him lose 7 marks and led to him failing paper A and, as a result, the EQE in its entirety.
The DBA’s decision
The DBA reminded that, it is not its function to reconsider the entire examination procedure on the merits.
However, the DBA added that the freedom of evaluation must be exercised appropriately and without arbitrariness.
For the DBA, where a candidate’s answer contains all the features considered necessary in the examiner’s report, does not raise any objections to clarity and does not contain any superfluous, in particular unnecessarily restrictive, features, it may be expected that all marks foreseen in the Examiners’ report be granted, see D 30/22, Reasons 1.8 and 1.9.
With regard to the possibility that marks might be lost twice for a single mistake because, owing to Paper A’s structure, a wrong answer to one part could have implications for the answer to another part, it has been held that such a “double penalisation” was not in keeping with the standards for fair marking, see D 13/17, Reasons 3.7.1.
On the basis of the appeal, it cannot be ruled out that the Examination Board violated these principles and committed a serious and obvious mistake by not correctly applying their own marking scheme and thereby penalising the appellant twice.
The candidate was correct to state that, whereas model solutions for the independent claims have been provided, the Examiners’ report 2024 – unlike in the years before – does not contain a detailed model solution regarding the dependent claims.
The DBA did however note that a detailed model answer would have helped a lot to comprehend the marking process and to judge on whether the examiners have followed their own marking scheme, especially in a situation where 30% of all marks achievable in paper A have been awarded to the dependent claims.
The bullet-point list of possible contents of dependent claims in the Examiner’s report cannot completely fill this gap, since the exact wording is important both for assessing possible clarity objections and for the question whether the broadest possible scope of protection could be achieved in the interest of the client.
When assessing whether the Examining Committee apparently respected its own marking scheme, the fact that the marking process was apparently not based on a fully formulated model solution had to be taken into account.
The marking sheet provided by the Examination Board for every candidate is not broken down to each and every single dependent claim.
This appeared to be a problem against the background that 30% of all the marks achievable in Paper A were awarded for the dependent claims and that the marking scheme provided in the Examiners’ report establishes a combination of adding points for selecting suitable subject matter to draft a potentially valuable dependent claim and deducing points for minor deficiencies, such as a lack of clarity or choosing the wrong dependency.
Thus, the only figure shown in the marking sheet is as such detrimental to transparency for the candidates trying to comprehend where they have lost achievable marks. The DBA added that a more detailed marking sheet would in fact have been helpful.
Candidates may expect that the marking scheme proposed by the Examination Committee and accepted by the Examination Board be applied in the interest of a consistent and fair marking, especially that the measures to avoid double penalisation as set out in the Examiners’ report be really implemented.
Of the 15 items listed in the Examiners’ report as potentially suitable subject matter for drafting independent claims the candidate covered 13, allowing for a maximal achievable amount of 27 marks in his dependent device claims 2 to 11 and method claims 13 to 15.
Taking into account the Examiners’ report’s guidance on deductions for multiple features in claim 3 and for lack of clarity in claim 7, the candidate might have reached 24 marks. However he was only awarded 17 marks, the reasons being not at once apparent.
For he DBA, there was thus a strong suspicion that the members of the Examining Committee deduced 7 marks for wrong dependencies, without taking into account the fact that the dependent claims referred to features that had already been misallocated in the independent claims with the consequence that they had already lost marks there and should not suffer from a second loss of marks within the assessment of the dependent claims.
While the DBA could assume that some of the marks were deduced correctly or lost for other reasons, it is unable to see how a loss of all 7 marks might be justified.
The DBA saw no other possibility than to set aside the impugned decision and to order a re-assessment of the candidate’s answer to paper A, taking into account the prohibition of double-penalisation.
Comments
After D 6/24, commented in this blog, the present decision is the second of the DBA in this year criticizing the lack of transparency of the Examiner’s report, this time not for paper B, but for Paper A.
In view of the rather harsh comments of the DBA in its decision, about the Examiner’s report and the marking scheme, one wonders whether thestatementt “The Examination Board has reviewed the marking of the paper in the light of the arguments presented in the appeal and comes to the conclusion that no further marks should have been awarded” corresponds to a tangible reality or is an all-purpose clause to fob of candidates.
Paper A, B and C are meant to disappear in the near future. It is thus of upmost importance that for all papers of the future EQE that the Examiner’s report give a clear and understandable marking scheme allowing the candidates to understand where they have filed.
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