Decisions of the Administrative Council
Decision of the Administrative Council of 9 December 1993 adopting a new Regulation on the European qualifying examination for professional representatives
THE ADMINISTRATIVE COUNCIL OF THE EUROPEAN PATENT ORGANISATION,
Having regard to the European Patent Convention, and in particular Article 134, paragraphs 2(c) and (8)(a), thereof,
Having regard to the existing Regulation on the European Qualifying Examination for professional representatives before the European Patent Office,
On a proposal from the President of the European Patent Office,
HAS DECIDED AS FOLLOWS:
The Regulation on the European Qualifying Examination for professional representatives as adopted on 21 October 1977 (CA/D 3/77) and last amended by decision of the Administrative Council of 5 July 1991 (CA/D 4/91) is replaced by the text contained in the annex to this decision.
(1) This decision shall enter into force on 1 May 1994.
(2) Articles 14, 15, 24, paragraph 2, and 28, paragraph 1, of the Regulation referred to in Article 1 of this decision shall be applicable from 10 December 1993.
Done at Munich, 9 December 1993.
For the Administrative Council
Per Lund THOFT
Holding of the examination
A European qualifying examination shall normally be held once a year. The period between two examinations shall not exceed twenty-four months.
The Examination Board
(1) The examination shall be organised and conducted by a Board of nine members consisting of:
(a) a Chairman appointed by the President of the European Patent Office (hereinafter called "the EPO") from among employees or retired employees of the EPO, after consulting the Council of the Institute of Professional Representatives before the EPO (hereinafter called "the Institute"),
(b) four members of the Institute appointed by the President of the EPO acting on a proposal from the President of the Council of the Institute, and
(c) four employees of the EPO appointed by its President.
(2) Of the five members who are employees or retired employees of the EPO only two members shall be eligible to continue and be reappointed as members after their retirement.
Appointment of the Board
(1) The members of the Board shall be appointed for a period of four years, subject to paragraph 2. Upon expiry of this period they may be reappointed.
(2) The appointment of members shall be organised in such a way that one half of the members in each of the categories referred to in Article 2(1)(b) and (c) shall be renewed every two years.
(1) For the purpose of conducting the examination the Board shall appoint one or more examination committees.
(2) Each committee shall be set up on the basis of equal numbers of employees of the EPO and of members of the Institute. However, if the members of a committee exceed four in number, the proportion of employees of the EPO shall be between one quarter and one half of the total number of members of that committee.
(3) A maximum of three members of the Board may be appointed members of the committees.
(4) A member of a committee who retires from the EPO shall be eligible to continue and be reappointed as a member and shall for the purposes of this Regulation be considered an employee of the EPO.
Meetings of the Board
The Board shall be convened by its chairman. Five members shall constitute a quorum. Decisions of the Board may be taken by written procedure, provided no member objects.
The Examination Secretariat
The EPO shall provide the Board and its committees with the necessary administrative facilities in the form of an Examination Secretariat.
Powers of the Board
(1) The Board shall give the members of the examination committees the necessary instructions for preparing the examination papers, examine the drafts and make the final selection of the texts.
(2) The Board shall in particular also decide on the list of books and documents which may be used by candidates and shall instruct the Examination Secretariat concerning the measures to be taken in respect of candidates found to be cheating or attempting to cheat.
(3) The Board shall take note of the grades proposed to it by the examination committees, determine the grades for each paper and decide whether a candidate has passed or failed. No member of the Board who was a member of the committee which marked the papers of the candidate in question shall take part in this decision.
(4) The Board shall draw up instructions concerning the qualifications or knowledge required for enrolment. A set of instructions, including a list of recognised qualifications, shall be published annually.
(5) Each year the Board shall transmit to the Examination Secretariat a report on each examination paper (examiners' report) prepared by the relevant examination committee for inclusion in an annual compendium.
(6) The Board shall draw up implementing provisions to this Regulation.
Duties of the committees
The examination committees shall be responsible for:
(a) preparing the examination papers in accordance with the instructions given by the Board and, where relevant, indicating the relative importance of the individual questions;
(b) marking the answers to the examination papers, each answer being marked separately by two committee members;
(c) submitting the above-mentioned answers to the Board with proposals for the grades to be awarded;
(d) drawing up a list of references to landmark decisions in EPO case law as referred to in Article 12, and submitting it to the Board for annual publication.
Duties of the Examination Secretariat
(1) The Examination Secretariat shall assist the Board and its committees in their duties.
(2) It shall be responsible for publication of
(a) the implementing provisions mentioned in Article 7(6),
(b) the instructions mentioned in Article 7(4),
(c) the compendium mentioned in Article 7(5),
(d) the list mentioned in Article 8(d), and
(e) the notice mentioned in Article 20.
(3) The Secretariat shall also be responsible for supplying other information concerning the examination.
(4) In accordance with instructions drawn up by the Board, the Secretariat shall decide on the enrolment of candidates. It shall arrange for the holding of the examinations and take the necessary measures for their supervision.
Conditions for enrolment
(1) Candidates shall be enrolled for the examination on request provided they possess a university-level scientific or technical qualification or are able to satisfy the Secretariat that they possess an equivalent level of scientific or technical knowledge, and fulfil the conditions specified in paragraph 2.
(2) Candidates who apply for enrolment must be able to
(a) satisfy the Secretariat that at the date of the examination they have
(i) completed a full-time training period of at least three years in one of the Contracting States under the supervision of one or more persons entered on the list referred to in Article 134(1) of the European Patent Convention (hereinafter called "the EPC"), as an assistant to that person or those persons, in which period they have taken part in a wide range of activities pertaining to European patent applications or European patents, or
(ii) worked full-time for a period of at least three years in the employment of a natural or legal person whose residence or place of business is within the territory of the Contracting States and have represented their employer before the EPO in accordance with Article 133(3) EPC while taking part in a wide range of activities pertaining to European patent applications or European patents, or
(iii) worked full-time during a period of at least three years as an assistant to, and under the direct supervision of, one or more persons as defined in sub-paragraph (ii) in a wide range of activities pertaining to European patent applications or European patents, or
(b) satisfy the Secretariat that at the date of the examination they have performed the duties of examiner at the EPO for at least four years.
(3) The duration of the periods of professional activity referred to in paragraph 2(a) may be aggregated to make up a total full-time training period of three years.
(4) In determining the periods of activity referred to in paragraph 2(a) the Secretariat shall also take into account candidates' activities in proceedings relating to national patent applications and national patents.
(5) An application for enrolment shall not be deemed to have been filed until the prescribed fee has been paid.
Remission of periods of professional activity
Under the conditions laid down in the instructions referred to in Article 7(4), the Secretariat may grant a reduction of up to one year in the duration of the periods of professional activity defined in Article 10(2).
The examination shall establish whether a candidate has:
(a) a thorough knowledge of:
(i) European patent law as laid down in the EPC and the Agreement relating to Community Patents;
(ii) the Paris Convention (Articles 1 - 5quater and Article 11);
(iii) the Patent Cooperation Treaty;
(iv) all decisions of the Enlarged Board of Appeal and landmark decisions of EPO case law as specified in the list referred to in Article 8(d), and
(b) a general knowledge of the national laws of:
(i) the Contracting States to the extent that they apply to European patent applications and European patents;
(ii) the United States of America and Japan to the extent that they are of importance in connection with proceedings before the EPO.
The examination papers
(1) The examination shall comprise written papers only.
(2) The Board shall determine the number of examination papers and the time allowed for each.
(3) The examination papers shall at least cover:
(a) the drafting of claims and the introductory part of a European patent application on the basis of such information as is normally available to a professional representative for the purposes of carrying out this task;
(b) the preparing of a reply to an official letter in which prior art has been cited;
(c) the drafting of a notice of opposition to a European patent;
(d) the answering of legal questions and the legal assessment of a specific situation.
(4) The Board may allow candidates to choose, in certain papers, one of two or three technical specialisations.
Modular sitting of the examination
(1) The first time a candidate sits the examination it may be sat in two modules. Candidates who have availed themselves of this possibility shall sit at least the second module within the next three subsequent examinations. If a candidate chooses to sit the first module again, together with the second module, it shall count as a first sitting and any result previously obtained shall no longer be valid.
(2) The Board may lay down further details in its implementing provisions.
(1) The examination papers shall be drawn up in the three official languages of the EPO and all candidates shall receive them in all three languages.
(2) At least three separate and different documents on the state of the art shall be supplied with the examination paper mentioned in Article 13(3)(c). Such documents shall each be drawn up in one of the official languages and be accompanied by a translation into at least one of the other official languages. The three official languages shall always be equally represented. The aforementioned examination paper shall be accompanied by a glossary of the specialist terminology contained in the prior art documents in all the languages requested under paragraph 3.
(3) The candidates' answers should be given in one of the three official languages. Nevertheless, candidates may, if they so request when enrolling for the examination, submit their answers in another language being an official language of a Contracting State. In such cases, the Secretariat shall have a translation made in one of the official languages of the EPO and shall submit the translation together with the original answers to the appropriate examination committee.
Marking of papers
The Board shall give the members of the examination committees the necessary instructions to ensure that candidates' answers are marked in a uniform manner.
Passing the examination
(1) Subject to paragraph 2, a candidate shall be declared to have passed the examination if he passes each of the examination papers or if, the first time he sits the examination, he obtains the minimum grades required under the implementing provisions.
(2) Candidates who have performed the duties of examiner at the EPO for at least four years shall be declared to have passed the examination provided they fulfil the requirements of paragraph 1 and are able to satisfy the Secretariat that they have spent at least two years in any of the capacities defined in Article 10(2)(a).
Resitting the examination in full or in part
A candidate who fails the examination may only resit a paper or papers he did not pass.
(1) The President of the EPO shall specify the fees referred to in Articles 10(5) and 27(2) after the Institute has been consulted. The fee for a resit in part shall always constitute at least 50% of the enrolment fee for an examination in full. When a candidate enrols for the second time for the examination in full a surcharge of 50% of the basic fee shall be levied on enrolment and a surcharge of 100% on enrolments for examinations in full thereafter.
(2) The translations referred to in Article 15(3) shall not require any additional fee and may be prepared by the Institute.
Notice of the examination
A notice of the examination shall be published in the Official Journal of the EPO specifying the dates of the sessions, the dates by which applications for enrolment must be filed and the documents required.
Applications for enrolment
(1) Applications for enrolment for the examination shall be addressed to the Secretariat.
(2) Applications for enrolment shall state the family name, given names, address and nationality of the candidate and shall be accompanied by:
(a) evidence of possession of the qualification or equivalent level of scientific or technical knowledge as required by Article 10(1), and
(b) a certificate or certificates issued by a professional representative or by the candidate's employer, attesting to the completion of a period of training or employment required by Article 10(2)(a) and indicating the nature and duration of the duties performed by the candidate, or
(c) a certificate issued by the EPO, attesting to the fact that the candidate has performed the duties of examiner at the EPO for at least four years;
(d) evidence of circumstances which may give grounds for remission as referred to in Article 11.
(3) Where appropriate, applications for enrolment shall also state the language in which the candidate wishes to submit his or her answers in accordance with Article 15(3).
(1) The Secretariat shall inform candidates individually in writing whether or not their application for enrolment has been accepted. In cases of refusal a statement of grounds shall be given and candidates may request a reasoned decision.
(2) Candidates enrolled shall also be individually informed in writing of the date, time and place of the examination. They shall furthermore be sent a notice setting forth both this Regulation and other provisions laid down by the Board which are of relevance to the candidates.
Examination in several centres
Where the examination is to be held in several centres at different locations, the same papers shall be distributed and sat in all centres simultaneously.
(1) Candidates' anonymity shall be respected when their answers are marked.
(2) Candidates' answers may be published and used at any time for research, statistical or training purposes provided anonymity is respected.
(1) The President of the EPO shall publish in the Official Journal of the EPO an alphabetical list of candidates who have been successful in the examination.
(2) The Secretariat shall send each unsuccessful candidate a copy of his or her own answers.
(3) The Secretariat shall be responsible for compiling and disseminating statistical information concerning the results of the examination. The Board shall decide what information shall be disseminated and to whom.
Subject to Articles 24(2) and 25, the members of the Board, the members of its committees and the EPO staff members working in the Secretariat shall be bound to secrecy both during and after their term of office with regard to all matters concerning the candidates and any deliberations held thereon.
(1) An appeal shall lie from decisions of the Board and the Secretariat only on grounds of infringement of this Regulation or of any provision relating to its application.
(2) Notice of appeal must be filed in writing with the Secretariat within two months of the date of notification of the decision appealed against. Notice of appeal shall not be deemed to have been filed until the fee for appeal specified pursuant to Article 19 has been paid. Within three months of the date of notification of the decision, a written statement setting out the grounds for appeal must be filed.
(3) If the Board or, in the case of an appeal against a decision of the Secretariat, the Secretariat considers the appeal to be admissible and well-founded, it shall rectify its decision and shall order reimbursement of the fee for appeal. If the appeal is not allowed within two months, it shall be remitted to the Disciplinary Board of Appeal of the EPO.
(4) Part IV of the Regulation on discipline for professional representatives shall apply mutatis mutandis to the procedure before the Disciplinary Board of Appeal. If the appeal is admissible and well-founded, the Board of Appeal shall set aside the decision appealed against. If the Board of Appeal allows the appeal, or the appeal is withdrawn, it shall order reimbursement in full or in part of the fee for appeal if this is equitable in the circumstances of the case.
(1) Candidates who failed the examination held in 1993 may avail themselves of Article 18. In that case Article 17 applies. Any right to a partial resit applicable in 1993 may be exercised in subsequent years.
(2) Article 19(1), third sentence, shall apply to all candidates enrolling for the second time or more in order to sit the examination in full.