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Case Law of the Boards of Appeal

 
 
2.1. Formalities and conditions for enrolment

In D 4/08 the board confirmed the Examination Secretariat's strict application of the published closing date for enrolment for the EQE, stressing its importance for the timely and orderly preparation of the examination. According to D 7/08, it was the candidate's responsibility to file the complete application, including the enrolment form and all necessary supporting evidence, by the closing date (see also D 12/08, D 15/09).

To qualify for registration and enrolment, candidates must normally possess a university-level scientific or technical qualification, i.e. a bachelor's degree or equivalent academic degree awarded at the end of a full-time course of a minimum of three years, with at least 80% of the course hours having been devoted to scientific and/or technical subjects (Art. 11(1)(a) REE, R. 11 to 14 IPREE). The qualifying subjects include biology, biochemistry, construction technology, electricity, electronics, information technology, mathematics, mechanics, medicine, pharmacology and physics (R. 13 IPREE). See, for example, D 1/12.

For decisions relating to the REE 1994 and its Instructions concerning the qualifications required for enrolment for the EQE, see D 15/04, D 17/04, D 18/04 and D 8/04, reported in the Case Law of the Boards of Appeal, 5th edition, and also D 5/08, D 10/08.

A further requirement for enrolment is that at the date of the examination a candidate must normally have worked full-time for at least three years in the field of European patent applications and European patents in a contracting state, as set out in Art. 11(2) to (5) REE and R. 15 IPREE (for the pre-examination see Art. 11(7) REE). This period may be reduced by six months for candidates who have successfully completed specialised studies of at least one academic year in the field of industrial property (R. 16(1) IPREE).

According to D 4/86 (OJ 1988, 26), for the condition stipulated in Art. 7(1)(b)(i) REE 1977, as amended, to be met, the trainee had to have completed his training period under conditions likely to ensure that he had actually assisted a professional representative by constantly taking part in activities pertaining to patent application procedures of which the representative was in fact in charge.

D 14/93 (OJ 1997, 561) ruled that the training period could not be served with a legal practitioner whose name did not appear on the list of professional representatives, even if the said practitioner was a patent attorney under national law (see Art. 134(7) EPC 1973, see now Art. 134(8) EPC). According to the board, the activities referred to in Art. 7(1)(b) REE 1991 presupposed the scientific or technical knowledge required with a view to activities pertaining to European patent applications and patents; persons training EQE candidates needed to possess such knowledge, and legal practitioners did not normally do so.

D 25/96 (OJ 1998, 45) ruled that the period of professional activity required for the EQE enrolment could not be served with a self-employed German patent agent who was not on the list of professional representatives.

The conditions of Art. 11(2)(a)(ii) REE, which allows a candidate to complete the prescribed period of professional activities as an employee, are not met where the candidate's employer is not represented before the EPO by the candidate in accordance with Art. 133(3) EPC but by external patent attorneys, or where the candidate's main activity has been in the field of national or international applications and patents (D 6/10, with reference to D 12/06 and D 13/06; see also D 11/11, with reference to D 32/07).

In D 16/04 the board confirmed the practice of the Examination Secretariat of allowing only periods of professional activity completed after the required degree was obtained as not being in conflict with Art. 10 REE 1994. Art. 10(1) REE 1994 mentioned the requirement of possessing a university-level scientific or technical or equivalent qualification first, followed by a reference to the conditions set out in paragraph 2, i.e. the three-year full-time training period to be completed by the date of the examination. The ordinary meaning to be given to this grammatical order reflected the common understanding that studies normally precede practical training. The required length of the training period was a consequence of the candidate's technical or scientific degree acquired before starting the training period rather than vice versa. See also D 6/08.

This is now a requirement under Art. 11(3) REE, which, in conjunction with R. 15(2) IPREE, also specifies how periods of professional activity may be aggregated to make up a full-time training period.

Art. 11(2)(b) REE allows candidates who at the date of the examination have performed full-time the duties of an examiner at the EPO for at least four years to enrol for the EQE without having previously worked in accordance with Art. 11(2)(a) REE.

In D 19/04 the appellant, an examiner of many years' standing at the German Patent and Trade Mark Office, had cited the corresponding Art. 10(2)(b) REE 1994 when submitting his candidature for the examination, without providing evidence that he had worked in accordance with Art. 10(2)(a) REE 1994. The board pointed out that Art. 10(2)(b) REE 1994 related to EPO examiners, who in view of their professional experience could be assumed to have a comprehensive knowledge of the European patent grant procedure. The professional experience of long-serving examiners in national offices could not be equated with that of EPO examiners. Given the different professional circumstances of EPO examiners and those in national offices, the means represented by the provision were in reasonable proportion to the end it served.

According to R. 16(2) IPREE, the period of professional activity under Art. 11(2)(a) REE may be reduced by up to one year if a candidate has been a patent examiner at the EPO or the national patent office of a contracting state.