EQE - exam advice, e-EQE environment

Who can afford an in-person EQE ?

29 Oct. 2022 12 comments 2 minutes EQE

The EPO makes Adminstrative Council documents public to increase transparency. Unfortunately, they do not have older documents. I have made CA/139/08 available here because it provides important background for the many changes made to the EQE during the last years.

There are a lot of people arguing that we should go back to the in-person exam. But that can only happen if some organisation is willing to organise it and/or pay for the organisation. The EPC is silent about who should bear the costs for the EQE, so it has been a struggle between the EPO and the epi / national offices as the EQE has grown from tens of candidates candidates to a couple of thousand. The system is very dependent on the many people who kindly sacrifice their free time organising / making / marking exams.

For example, the figures in 2007 were:
“All in all, the cost of the 2007 examination came to EUR 7 167 000.
Of this, EUR 2 681 000 (estimate based on EPO cost levels) was contributed through the working time of professional representatives made available free of charge and EUR 108 000 (estimate based on EPO cost levels) through kind support from national patent offices in the form of premises and staff.
Receipts from fees amounted to EUR 652 000.
The remaining costs totalling EUR 4 378 000 were borne by the EPO.”

This was the main reason to introduce the Pre-exam – with the increasing number of resitters in the system, the EPO calculated that their costs would rise to 8 500 000 in 2018.

Whether you want it or not, the EQE will change. I have no idea what the current online exams cost, but it must be a lot less than in-person, so it will stay online.
Longer exams do not work online, and there are many countries that have health and safety rules which oppose having to be present for 90 minutes without a bathroom break. So, they have to move to shorter exams.
Also, it is getting harder to find enough volunteers, so they have to move to exams that are less time-intensive to make and less time-intensive to mark.

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12 replies on “Who can afford an in-person EQE ?”

DXThomas

31 Oct. 2022

Dear Pete,

Thanks for your post. I have been training candidates for the EQE since 1993 (Papers A, B and C), hence I allow myself some comments.

That the EPO has to go with its time is nothing new and can only be encouraged.
That new ways of dealing/contacting users and/or holding OP should be introduced in European procedure is not at stake either.

What is however, let’s say disturbing, is the way how such changes are imposed on the users.
One cannot deny the feeling that the changes introduced are mainly for the financial benefit of the EPO.

That the EQE cannot be absent of this evolution is not at stake here either.
I agree with you that the in-person EQE is out.
The Covid pandemic has simply accelerated the pace of change.

That examiner’s reports regularly complain about the fact that lots of candidates seem merely to apply a method they have learned in some training seminars shows also that the EQE needs to be reformed in substance. It has become a bit too predictable, and yet the success rate is till low. Well prepared candidates will be successful whatever form the EQE will take.

That the logistics of an examination which happens simultaneously in a lot of places around Europe cannot be underestimated and that it is correspondingly costly is also not to be denied. That it cannot continue at this pace is not at stake either.
But here again the cost factor seems to be the driving factor.

When looking at the enquiry about the EQE launched a few weeks ago by the EPO, the cost factor was more than present. At the beginning of the questionnaire, there was question of auto-correction, and at the end of the questionnaire, the topic was changed to automatic correction. Auto-correction and automatic correction are totally different things which cannot be confused.
It is not a secret that the EPO would like a system with automatic correction like it exists with the present pre-examination.

Even in case of a MCQ, not to say with a true/false questionnaire, the answer could be correct, but on a totally wrong legal basis. Is this a way to check the ability of candidates to be fit for practice? A minimum of reasoning should be expected from the candidates.

Argumentation plays a big role in the life of a representative (and of an examiner). I might be old fashioned, but with only questions to be automatically corrected, it seems difficult to correctly assess the ability of a candidate to solidly argument or to demonstrate a good knowledge of the problem-solution-approach.

An examination with shorter times in front of a display is necessary and has to be encouraged.
However, the “locked browser” used for the EQE should not become an exam in the actual exam.

Yes to a modernised EQE, but no to an EQE which resumes itself to be a cost factor which is to be minimised at any rate. I am not sure that, should the quality of the candidates be maintained, that is their ability to be fit to practice, can be obtained much cheaper. Developing a new structure is certainly not obtainable without substantial efforts both financial and in manpower.

I am looking forward to see the detailed proposals of the joint epi/EPO working group on the EQE 2.0, for example in form of mocks for the different new stages. Time is running short as it should all be in place rather sooner than later.

One important aspect will be the transitional regime.
It would be unfair to deprive candidates from the positive result they have acquired with past papers.

By the way, has the pre-exam increased the pass rate and reduced the number of re-sitters?
To my knowledge corresponding figures have never been published.
I would be happy to see some.

If the pre-exam would really have improved the situation, we would have heard about it quite loudly.
My conclusion is that it was not the case.
One of the reasons being that candidates having been successful at the pre-exam think that they are fit to sit the main exam and do not need much more training.

That it is a fatal attitude does not have to be insisted upon.
It will not change much, should to a large extent the EQE become merely an automatized exam in order to save costs.
And whether a candidate is fit to practice will remain, or worse become, pure guesswork.

Anonymous

31 Oct. 2022

Regarding the success or otherwise of the pre-exam, I recommend reading the following sites:

https://statisteqe.beetz.nl/pre.php

https://ipcopy.blog/2018/05/01/why-the-eqe-pre-exam-was-a-good-idea/

Pete Pollard

31 Oct. 2022

Hi Daniel,
I am always happy to see comments from such a well-respected tutor :-).

Yes – almost all EQE (and patent processing) changes are driven by EPO reducing costs (mainly by reducing manpower). Unfortunately, there seems to be no effective united opposition against changes that the profession may not want (although it is difficult to get unified opinions on anything). But a lot of the proposed changes could be modified by someone taking over a portion of the costs and the organisation, or at least being prepared early in the change procedure to provide well-thought out alternatives. Just saying No, or complaining afterwards, is pointless because ultimately the EPO can do anything that the AC approves of. The new EQE proposal by the joint workgroups is a good example of what is needed, but it is completely missing anything about the implementation – will there be fewer people making the exams ?, will more capacity be needed from the epi ?, will these people be paid?, who will pay them?. Obviously, these calculations have been made behind the scenes, but we should be able to judge the whole package because if there are no resources to implement properly, it will also fail.

Candidates typing default statements (e.g. A1 is the closest prior art because it has the most features in common) is a reaction to the artificial exams they have created. Thinking too much leads to problems / time loss and each paper has completely different expectations. Candidates also don’t have the time to do 8x past exams for each paper.

I agree that it is an important skill, but there is a parallel requirement for 3 years of practical experience working on cases that you know in detail. Patents are granted mainly based on technical arguments and some legal arguments, but technical argumentation at that level cannot be properly tested across 1000 attorneys. Maybe it is a good idea to look at making this consistent, but we all know that this is a black hole hiding a lot of inconvenient truths.
Maybe drop the 3 year requirement completely and add 1 or more exams that you can take at any time in your career.

For holding the EQE, at least some local examination centres would be a good solution for the less-technical candidates, or for those without access to a reliable internet connection. For example, each national patent office could provide rooms with or without computers, with on-site technical support and invigilation.

It is true that a lot of candidates do not study the law in great detail anymore after the pre-exam. The breadth of the legal knowledge for main exam candidates is less than it used to be when everything was done in 1 year. But because they do a lot of exam-related questions and old exams when preparing for the main exam, they become very proficient in the things that are commonly on the exam, so I think that they score higher on those parts, and less on the unusual questions. This is a better guarantee of passing than trying to learn everything because you can score these marks relatively quickly.
But 1 year or 2 years makes no difference to being fit to practice after that – almost all the detailed knowledge they had at the exam dissipates within a few months. Introducing permanent education would have a much more beneficial effect on being continually fit to practice :-).

DXThomas

31 Oct. 2022

Dear Pete,

Thanks for your statement about my tutoring ability. Let’s say, it encourages me to persevere, but not for too long anymore as I am not a chicken of the year.

I fully agree with you that “just saying No, or complaining afterwards, is pointless because ultimately the EPO can do anything that the AC approves of”. Reality is that any proposal by EPO’s management is presently rubber stamped by the majority of the AC, even if it might appear to be at odds with the EPC.

I also fully agree with you that the “new EQE proposal by the joint workgroups is a good example of what is needed, but it is completely missing anything about the implementation”.

At least the transformation into a full True/False or merely into a MCQ has apparently been avoided.

That “calculations have been made behind the scenes” is to be hoped, and I agree with you that “we should be able to judge the whole package because if there are no resources to implement properly, it will also fail”.

That on paper “3 years of practical experience working on cases that you know in detail” is a prerequisite, but in my eyes only a theoretical one. In some countries the number of EP applications and/or oppositions is too low to get enough practice. The CSP was for sure a help for certain countries, but I doubt it was only devised with this purpose in mind.

In some practices, candidates are mainly used to draft applications or worse translations, whereas in other ones, candidates act mainly in litigation/opposition.

However, all candidates can present the required paper in order to be admitted to the exam.
This is also for me an explanation of the overall low pass rate at the EQE.

On the other hand, my experience is that a candidate who is well prepared has the best chances to be successful at the EQE.
When preparing candidates before the exam you can easily see those who will pass and those who will experience difficulties.

What should be avoided is that re-sitters are excluded after only a few attempts.
Often it is not the candidate which is to blame, but its environment.

This means that the candidate should be given time by his employer to prepare himself very well.
The danger of a candidate leaving immediately after being successful at the EQE can be mitigated with a corresponding employment contract.

Saving on training costs has never been a successful policy.
Training Pavlovian standard replies are neither a recipe for success.
Real situations in IP are rarely situations allowing a standard reply.

When I was still active at the EPO I have often noticed that for a lot of young representatives, “almost all the detailed knowledge they had at the exam dissipates within a few months”.

I agree with you that “Introducing permanent education would have a much more beneficial effect on being continually fit to practice” but here you are actually questioning the epi and its PEC.

When participating to good training seminars a system of awards, like that established for lawyers in some countries, could easily be envisaged for professional representatives before the EPO. But this is a different story.

From the 13 000 or so members of epi, it is only a dwindling minority who did not have to sit the EQE.
The EQE is within the reach of every candidate, provided he gets a fair chance to prepare himself and is not encouraged to forget what he has learned for the exam. The EQE is just a starting point in IP, not the finality of a life time.

I am still hopeful that something better will emerge from the EQE 2.0, but the pursuit of cost killing at all levels and places should not be the driving force behind the efforts. It remains that for nothing you get nothing, be it in IP or in any other life circumstance.

Pete Pollard

01 Nov. 2022

Hi Daniel,
your comments agree with my own experiences.

A well-prepared candidate can pass. Every candidate has already an advanced degree, so they can handle the learning. The only thing that they need are time and resources.

I completely agree that failing candidates should not be punished in any way, such as by limiting the number of times that they can resit. I don’t agree with the current system either that raises the fee each time for a resit, for the same reason. Many candidates have no choice but to pay themselves, and they may not even get moral support from their employer, such as time off or fewer cases around the exam.
A lot of these ideas come from contracting states where most candidates are well-supported and well funded. But I have heard many stories where the employer even tries to sabotage the EQE attempts of candidates.

A lot of these discussions also reveal the “self-protection” instinct of already qualified attorneys. I have heard comments about fearing too many candidates qualifying (particularly in states where the attorney rates may be lower than their own) and being afraid that the EQE becomes easier.

A lot of older attorneys already think that the exam is much easier than in “the old days”. I don’t agree – I think that the level you need to pass the D exam has been relatively stable over at the last 10 years. The type of study though has changed, because there is now a mountain of implementation rules, case law and guidelines to master.

The danger of too much “self-protection” is that you destroy your own profession from the inside. Inventors / companies need advisers who speak the same language, understand their individual wishes, and provide flexible services at reasonable rates (for them). If the inventors / companies cannot find them, they will look online for other solutions, and realise that actually they can do a lot themselves. It is already possible to have applications drafted and prosecuted in countries like India, and good AI-assisted drafting is already available and being used by mmultinationals. Once clients realize that they don’t need qualified attorneys for 80% of the work, they will not be back. The money that they save will even compensate for the occasional failure. Entrepreneurs are more than happy to balance risk – getting IP is just one of the many risks that they deal with daily, and using expensive attorneys often does not give a higher guarantee of business success.

And making the exam too difficult, especially for non-native speakers, makes this all worse. I already know candidates who have stopped trying to qualify for the EQE, but they still do exactly the same work, either as a national patent attorney or a “patent specialist” (getting a qualified colleague to sign) or as an employee (with a PoA). There are even some who decided to become national lawyers because the amount of study was comparable, exam success is less unpredictable, and you get a much bigger opportunity to practice in IP.

DXThomas

02 Nov. 2022

Dear Pete,

Thanks for your latest comment.

The fear of some employers that when candidates are successful at the EQE, they will ask for a better pay might be true, but this is such a short view. I remember a French candidate in Strasbourg who, years ago, fainted on Thursday afternoon. It turned out that he skipped lunches and every evening received a long fax at his hotel for him to work on files.

The fears of established representatives, especially grand-fathers, that they would lose work is coming up cyclically. I think it should be forgotten cyclically.

The previsions of the Interim Committee setting up the EPO had foreseen a steady state of 40 000 applications. This figure was reduced to 30 000 after the oil chocks in the mid-seventies. When we see the latest figures, I claim that there is enough work for newcomers and the old boys.

One condition is however that the patents granted are of good quality and are not churned out at a high rate by pressured examiners. Sometimes I worry for newcomers for this reason. If it turns out that patents are not as good as claimed, the whole patent system can be at stake. Why pay for a service which is not rendered?

In the past the rate of rejection of the opposition, maintenance in amended form and revocation was 1/3 for each. Nowadays rejection of the opposition is only in around 10% of the files and revocations are slightly higher than maintenance in amended form. Even if one takes into account that opponents are keen on finding prior art, the prior art brought forward by opponents turns out to be in over 90% patent literature which was available in EPO’s search files. When an opponent brings PA under Art 54(3) from the inventor himself, or when you have a plurality of X and/or Y document in the search report and the opponent comes with novelty destroying patent literature, there are reasons to wonder.

Combined with the inroads of AI as well as drafting and prosecution in low-cost countries, there is a clear danger that big firms might turn away from the patent system altogether. What matters for those firms is less the quality than the quantity. They have also deep enough pockets to start litigation when necessity arises. But what about all the SME which are meant to profit from the EP/UP system?

I could say a lot more, especially about countries suffering of a shortage of applications, the inordinate pressure on the candidates with the ratio information/time at the EQE or the problems on non-English native speakers and the corresponding difficulties of candidates, but I wanted to share your concerns

Anonymous

03 Nov. 2022

October 31, 2022 at 2:54 PM
Online is a good move. Keeping exam fees low so that it is accessible to candidates is also good. Many firms do not support their candidates financially which is an unfortunate thing of the profession.

Pete Pollard

03 Nov. 2022

Yes, I agree. They should also not have the increasing fee for resitters for the same reason – many candidates have no choice but to pay themselves, and they may not even get moral support from their employer, such as time off or fewer cases around the exam.
There should also never be a limit on the number of times that a candidate can take an exam.

Jack

03 Nov. 2022

I completely agree with you Pete. It is already punishing to have to re-take the exam again and pay the fees again. With the cost of living crisis currently take place across Europe, the EPO could really get rid of this very unpopular fee increasing business for retakers. What they also need to realise is that candidates are having to revise and prepare in their spare time along with their full-time jobs and home life commitments. Some will have more flexibility than others.

Anonymous

03 Nov. 2022

November 3, 2022 at 3:23 PM
This is slightly beside the point but nevertheless linked to exams in some way. I must confess that I am a bit disappointed over how low wages are for qualified patent attorneys. I’ve worked in Spain, UK and Germany and it seems that there is not much appreciation over how difficult these exams are from others in the legal professions. Compared to our legal peers e.g. solicitors, they earn a lot more and the bar for entry is lower. It’s been on the news lately in the UK of a bidding war for newly qualified solicitors with huge attractive starting salaries of £125K to £150K. You don’t earn anywhere near that at the start of your careers in the patent profession unless you are a partner with at least 10 to 15 years’ experience.

I hope that patent firms start to increase salaries dramatically if we are to hold on to new and existing talent within the IP profession.

Pete Pollard

03 Nov. 2022

It is very relevant to the general EQE discussion. You make a very good point – the barrier to entry must match the reward. Otherwise, there will be no-one wanting to do it. I think the salary in NL of a qualified EPA with 2-3 years post qualification experience is about EUR 100K, excluding bonuses – that is a good salary. But trainees are paid much less, so it take some time to get to that level.
One exclusive right that EPA’s currently have is representing before the UPC (after the initial “grandfathering”) but I cannot see that lasting. The UPC is an EU court, and nothing to do with the EPC. They will be applying a harmonised patentability / infringement EU law which is based on the current national laws. So, there is no ability / competence reason to exclude an nationally qualified patent attorney (who has only passed an EU national qualification exam and not the EQE) from also qualifying for the UPC by just taking a litigation certificate course.
And, yes – we are not well respected as a group by other members of the legal profession. US attorneys consider us little more than “patent agents”, a lot of judges hate dealing with patent attorneys because they have little experience with pleading, some national attorneys with their own qualification exams think the EQE focuses too much on procedural law. Just passing a difficult exam does not get respect on its own – our legal colleagues are basing their opinions on interactions with European Patent Attorneys.
My own experience is that the EQE qualification is a very narrow start, and that you need to broaden your knowledge and experience much more to be useful and respected. For example, clients need IP advice (including trademarks, designs, copyright, trade secrets) and not just patent advice. They need you to estimate whether there is infringement or not. They want to know if the application will be granted in US, CN, JP etc. They want to know what a patent application will cost them over the next 2 years, and after PCT entry. They want i-Depot’s filed. They want EP patents quickly granted (more than requesting PACE :-). They want NDA’s checked. You learn none of this during the EQE. I learned how to write a notice of appeal by using the excellent Müller / Mulder book on Success in Oppositions and Appeals.
Hopefully, you learn from your colleagues, but I have encountered many old-fashioned patent attorney firms where you remain very specialised. I have also encountered many old-fashioned patent attorneys who prefer it to stay like that ;-).
Having compulsory permanent education for EPA’s would make a big difference, because employers would simply factor it into their budgets, and their would be little resistance. It would also improve the opinion of fellow legal professionals and national attorneys who do this naturally.
But my advice to patent attorneys is to keep developing as a well-rounded adviser anyway – see this old epi article from Tony Tangena

Pete Pollard

05 Dec. 2022

It would be good to get feedback from a wide-range of ex-candidates about whether they think it was worth the investment. It is probably different between states with national examined qualifications and those without.
In general, I think it is a good path to some of the knowledge that you need, and the title reassures clients, but, for an actual European Patent Attorney, it focusses too much on just getting rights granted before the EPO and EPO procedures. After qualification, you immediately have to deal with subjects such as contract law, transfers of property, judging technical infringement, rights outside EP, trade secrets, trademarks & designs, which are covered in national qualifications for those who have them. It is disappointing to see these areas are still completely missing from any discussion on competence and knowledge for EU patent attorneys. They do not need to be tested at the EQE, but they should be offered as supplementary modules for those who do not have adequate national qualifications, and be included as part of a permanent education.
Unfortunately, there is no marketing by the epi to explain to clients why they need an EU patent attorney, and the help that they can give. The truth about the guaranteed level of skills offered may be too embarrassing – “we will try our best to get a patent only by the EPO, but we cannot comment on how useful it could be for your business or whether it has a chance of grant anywhere else”. This truth is the reason for the lack of respect of the title form national patent attorneys.
This marketing is certainly done at national level, like in NL.

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