D 0002/80 (none) 08-12-1981
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1. According to point 6 of the Instructions given to candidates before the start of the examination, complaints as to the conduct of the Qualifying Examination for professional representatives before the EPO may only be made in a certain form and within a certain time limit. Any complaints not satisfying these conditions cannot be given con- sideration by either the Examination Board or the Board of Appeal.
2. After the examination the candidate is entitled to inspect his examination file. As long as he is denied this opportunity, he is not in a position to furnish complete and appropriate grounds for his appeal. As a result, rectification by the Examination Board under Article 23(3) of the Examination Regulation is in effect excluded. The normal course of the procedure is thus interrupted. Under these circumstances, the case has to be remitted to the first instance for a fresh decision.
I. The appellant sat the first qualifying examination for professional representatives before the European Patent Office on 21, 22 and 23 November 1979.
II. By letter dated 19 March 1980, the Chairman of the Examination Board informed him that he had not passed the examination, that his answers to papers B, C and D had been judged "unsatisfactory", while his other answers had not been good enough for him to pass overall. In the same letter the candidate was also informed that this information complied with the requirements of Article 21(2) of the Regulation on the European Qualifying Examination (Examination Regulation) of 21 October 1977 and that he would receive no further information concerning his performance in the examination.
III. On 8 April 1980 the appellant filed an appeal under Art. 23 of the Examination Regulation with the Examination Board, requesting the reversal of the contested decision and the finding that he had passed the said qualifying examination.
IV. In a submission dated 14 May 1980 addressed to the Chairman of the Examination Board, the appellant complained that he had not been allowed to see his marked examination papers and the Board's assessment of them. This was contrary, in particular, to Article 21(2) of the Examination Regulation and prevented him from supplying comprehensive grounds for his appeal.
V. The appellant also complained about the conditions under which the examination was conducted. It was held in the rented "Festsaal" of the "Künstlerhaus" in Munich and the heating and lighting had been "appalling". In addition, he reproved the Chairman of the Examination Board who - in his opinion, without good reason - had not been present during the examination.
VI. Although the appellant expressly stated that he could not really criticise the marking of his papers or the result of the examination until he had seen the examination files, he still drew up a number of comments on them: inter alia, the appellant considered that the Board had allowed far too little time for each paper, that it was objectionable to have to sit for papers A and B on the same day and finally that the Board had laid down faulty standards for the marking of the papers. There could be no other explanation for the high failure rate among the candidates - approximately 64%.
The appeal was not allowed within the one-month period provided for in Art. 23(3) of the Examination Regulation and was therefore remitted to the Disciplinary Board of Appeal, on 19 June 1980. At the alternative request of the appellant, oral proceedings took place before the Board on 15 December 1980 and on the same date the Board recognised the appellant's right to inspect his examination file.
The appellant was given a two-month period beginning on the date of inspection of the file within which to submit any supplementary appeal material. In a subsequent explanation of its interlocutory decision, the Board stated on 29 January 1981 that inspection of the following documents should be granted:
- all the appellant's examination papers and copies thereof;
- all tables, lists, etc. containing points, percentages or gradings, insofar as they concern the appellant himself;
- all written assessments by the examiners or Examination Committees;
- all other written comments by the examiners regarding the appraisal of the papers.
X. On 14 May 1981, following inspection of his examination file, the appellant supplemented his appeal as follows:
He objected:
- once again to the conditions under which the examination was conducted: for example, because of the cold he had to wear his coat during the examination;
- to the instructions given by the Board which resulted in restrictive marking by the examiners;
- to the fact that some of the copies made had disappeared - in particular he had not received a copy of paper C containing comments on the marking;
- to the individual marks.
XI. With regard to the marking of the individual papers, the appellant asserts the following:
Paper A - While the examiners initially diverged substantially in their marking, they then settled on the lower of the marks given originally.
Furthermore, marking was applied to a discretionary problem (scope of the main claim). Finally, the marking of the dependent claims was in general open to criticism.
Paper B - Here, too, marking was wrongly applied to a discretionary problem, via inventive step. In addition, no marks were given for the candidate's "comments".
Paper D - When harmonising their marks, the two examiners retained the lower mark rather than settling on the arithmetic mean, which was unfair.
Paper C - In the absence of complete information from the Examination Board, the appellant contented himself with drawing an analogous conclusion.
1. Before the examination all candidates were issued with a set of instructions, Article 6 of which reads: "Complaints as to the conduct of the examination will not be entertained by the Examination Board unless they are put forward to an invigilator in writing, stating the facts, at the latest one hour after the closing bell has rung on the final day of the examination". Since, according to Art. 23(1) of the Examination Regulation, the Board of Appeal has to decide in this area on decisions of the Examination Board, the above-mentioned instruction necessarily applies also before the Board of Appeal. In the present case, the appellant admits that he received a copy of the "Instructions to candidates for the conduct of the examination" but did not lodge a complaint within the time specified.
Consequently, the criticism regarding the conditions under which the examination was conducted is not admissible. It must therefore be dismissed without further consideration.
2. On the question of the marking of the papers and the result of the examination, Art. 23(3) of the Examination Regulation provides as follows: "If the Board considers the appeal to be admissible and well-founded, it shall rectify its decision". In the present case, the appeal dated 8 April 1980 and the statement of grounds of 14 May 1980 were not complete. However, the appellant expressly reserved the right to submit supplementary grounds after being afforded the inspection of the examination files as requested. His right to inspect the examination files, however, was not recognised by the Board of Appeal until 15 December 1980. Quite clearly, without previously seeing the examination files, the appellant could do no more than state the grounds for his appeal in the most general terms only and, for the most part, only in respect of the conditions under which the examination was conducted. But this in effect excluded the possibility of the Examination Board rectifying its decision - in other words, the lack of prior inspection of the examination files had interfered with the normal course of the procedure and had in particular prevented a complete statement of grounds and possible rectification.
Under these circumstances, the appeal as presented in the alternative request must be allowed and the matter referred back to the Examination Board for a fresh decision. At the same time the Examination Board will also have to consider whether, in the case of discrepant marking by the examiners, the method followed in harmonising the marks in fact ensures truer results than the arithmetic mean method.
ORDER
For these reasons, it is decided that:
Because they were submitted late, the objections relating to the organisation of the examination are inadmissible. To this extent, the appeal is dismissed. That apart, the decision of the Examination Board relating to the appellant's performance in the Qualifying Examination is set aside and the case is remitted to the Examination Board for a fresh, decision.