D 0004/86 (European Qualifying Examination) 08-06-1987
European Qualifying Examination
Conditions for enrolment
Training period without an employment relationship
Examination Board's power to assess the training period
I. On 8 November 1985 the appellant submitted an enrolment application for the seventh European Qualifying Examination for professional representatives before the EPO.
II. In support of the assertion that he had performed his professional activity for a period of four years part-time and for five years full-time under the supervision of a professional representative in France, within the meaning of Article 7(1)(b) of the Regulation on the European Qualifying Examination for professional representatives before the European Patent Office (hereinafter called "the Regulation"); and in support of the request for a reduction in the period of professional activity within the meaning of Article 8(2) of the Regulation, the appellant produced the following documents:
(a) a certificate dated 4 November 1985 from the professional representative;
(b) an annex in which the professional representative states that the appellant's professional activity pertaining to industrial property began on 1 October 1976 and was spread out over four periods (1976-1978, 1979-1980, 1981-1982 and 1982-1985). In this annex the professional representative indicated in great detail which national and European files had been dealt with during the appellant's period of training (from 1979 to 1983: 134 French patent applications and 45 European ones);
(c) a certificate dated 29 July 1985 issued by the Centre d'études internationales de la propriété industrielle (CEIPI) in Strasbourg, according to which the appellant had passed the examinations required to obtain a diploma in international industrial property studies.
III. According to the certificate dated 4 November 1985 issued by the professional representative under whose supervision the appellant had worked, the appellant had not been employed full-time, although a considerable number of patent applications had been handled by him under the representative's supervision and control.
IV. By a decision dated 4 March 1986, the Examination Board rejected the application for enrolment on the ground that the appellant had failed to provide evidence satisfying the criteria of Article 7(1)(b)(i) of the Regulation.
V. The Examination Board found that the business relationship that the appellant had maintained with the professional representative did not constitute a period of training carried out under the latter's supervision as his assistant within the meaning of Article 7(1)(b)(i) of the Regulation. Referring to the decision of 11 July 1980 in the matter of D 01/1979 (OJ 9/1980, p. 298 ff), the Examination Board was of the opinion that the relationship between the appellant and the professional representative was rather one of consultation and that the appellant was not placed under the professional representative's supervision.
VI. The Board also noted that the exercise of supervision within the meaning of Article 7(1)(b)(i) of the Regulation implies direct, daily control of the activity performed by the candidate and that the distance between the appellant's professional domicile (Annecy) and that of the professional representative (Paris) in itself excluded the possibility of the control which Article 7 of the Regulation requires.
VII. The appellant appealed against the decision of the Examination Board by a letter dated 6 May 1986 on the following grounds:
(1) the refusal of the application was based on incorrect facts because each file entrusted to the appellant was in fact checked by the professional representative;
(2) the reference to decision D 01/1979 was improper because the question of distance between the appellant's professional domicile and that of the professional representive which had been considered by the Examination Board had not been considered in the reasons for the decision. In the memorandum attached to the appeal, the appellant stated that from 1982 to 1985 the European patent applications had but for one exception been checked by the representative and that the latter had also checked all the dossiers relating to French patent applications prepared by the appellant and signed by the representative.
This fact had not been proved when the enrolment application for the examinations was submitted and could therefore not be considered by the Examination Board.
VIII. By letter dated 21 January 1987, the professional representative provided a description of the way in which he and the appellant had worked together, in particular regarding the control which he had exercised over the latter's activity. He stressed that during the appellant's training period he had been in very frequent contact with him and had controlled the appellant's work by checking and correcting the draft French and foreign patents which the latter had submitted to him.
1. The appeal complies with the provisions of Article 23(2) of the Regulation and is therefore admissible.
2. Under Article 7(1)(b)(i) of the Regulation, candidates may request enrolment for the European Qualifying Examination on condition that:
they are able to satisfy the Board that, at the date of the examination, they have completed a full-time training period of at least four years in one of the Contracting States under the supervision of one or more persons entered on the list of professional representatives, and have during this period taken part as an assistant to that person or those persons in a wide range of activities pertaining to European patent applications or European patents.
3. Article 16(2) of the Regulation provides that applications for enrolment for the European Qualifying Examination shall be accompanied by certificates issued by professional representatives or by employers, attesting to the completion of a period of training or employment required by Article 7(1)(b) of the Regulation and indicating the nature and duration of the duties performed by the candidate.
4. The Examination Board was of the opinion that the exercise of supervision mentioned in Article 7(1)(b)(i) of the Regulation implies that the professional representative, through personal contact, exercises direct control over the work carried out by the candidate by means of day-to- day guidance, direction and assistance.
Indeed, this article stipulates as a condition for enrolment for the European Qualifying Examination that candidates must have completed a full-time (à temps complet; auf Vollzeitbasis) training period of four years under the supervision (sous la direction; unter der Leitung) of a professional representative. Article 7(1)(b)(i) also provides that a candidate shall during this training period have taken part as an assistant to a professional representative in a wide range of activities pertaining to European patent applications or European patents. As an alternative condition for enrolment for the European Qualifying Examination, Article 7(1)(b)(ii) lays down that candidates shall have worked full-time for a period of four years in the employ of a natural or legal person and have represented their employers before the European Patent Office. A further alternative condition for enrolment for the examination is, according to Article 7(1)(b)(iii), that they should have worked full- time during a period of at least four years as an assistant to and under the direct supervision of one or more persons as defined in Article 7(1)(b)(ii).
5. The Board of Examiners ruled that not all of the professional activity performed by the appellant in the period to which his training relates can be considered to have been carried out under the supervision of a professional representative in accordance with the provisions of Article 7(1)(b) of the Regulation on the European Qualifying Examination for professional representatives before the EPO. The Board notes that the relationship between the appellant and the professional representative which he had chosen for the purposes of the training period was characterised by the fact that the appellant's professional activity was essentially devoted to his own clients. Not being qualifed as a professional representative, the appellant obviously needed to approach someone who was qualifed, in order to obtain the formal cover necessary for this type of activity. But as in the case considered in D 01/79 (Decision of the Disciplinary Board of Appeal published in OJ EPO 9/1980, p. 298 ff), in the event of disagreement the appellant could always take away from the representative the patent work which had been sent to him. Consequently, in reality it was the appellant who always had the last word.
A situation of this kind cannot be considered to satisfy the conditions required by the above-mentioned provision of Article 7(1)(b). In fact, the candidate was not really "under the supervision" of the representative in question, nor can he be seen to have acted as his assistant, as required under Article 7(1)(b) in cases where the trainee does not have a working relationship with the representative.
The requirement that a trainee who is not an employee must throughout the duration of the training period have assisted the representative full-time in the exercise of his activities in connection with procedures pertaining to patent applications means that the trainee must have taken part in the work which is the province of the representative and of which the latter is really in charge.
Such a requirement is not satisfied in the case in point, since in the period which the appellant refers to as his "training period" all the professional patent activity which he carried out was on behalf of his own clients. Under these circumstances, the involvement of the professional representative necessary to make up for the appellant's lack of qualification and to check the work that he was doing was rather of a formal nature. Moreover, it should be noted that the candidate lived in Annecy and the representative in Paris. They were thus more than 500 km apart, which meant that contact between them could not have taken place on a daily basis, as is evident from the documents produced for the file. Under the circumstances it is doubtful whether, quite apart from the fact that the other conditions mentioned above were not met, it is possible to consider the collaboration between these two persons as having been "full-time" as Article 7(1)(b) requires.
It therefore follows that neither the conditions laid down in Article 7(1)(b)(i) nor in Article 7(1)(b)(iii) are met. These considerations do not denote the Board's intention to rule out the possibility that the collaboration between the appellant and the representative whom he had chosen may in fact have been of a genuinely instructive nature for the appellant. It only wishes to reject an interpretation of the Rules for admission to the European Qualifying Examination for professional representatives before the EPO which, by giving the Examination Board the power to make discretionary assessments of the nature of the training, could be prejudicial to the principle of legal certainty and equal treatment of those falling under the jurisdiction of those Rules.
For these reasons, it is decided that: The appeal against the Decision of the Examination Board dated 4 March 1986 is dismissed.