D 0005/82 (Powers of investigation) of 15.12.1982

European Case Law Identifier: ECLI:EP:BA:1982:D000582.19821215
Date of decision: 15 December 1982
Case number: D 0005/82
Application number: -
IPC class: -
Language of proceedings: DE
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Board: DBA
Headnote: 1. In matters connected with examinations, the Disciplinary Board of Appeal is empowered, pursuant to Article 23(1) of the Regulation on the European Qualifying Examination for professional representatives before the EPO, to investigate whether the provisions of that Regulation are in conformity with higherranking law, particularly the EPC, and whether the appealed decision rests on an infringement of such law or of the provisions of the Regulation. Consequently, responsibility for the conduct of the examination lies with the Examination Board and under no circumstances with the Disciplinary Board of Appeal in the former's stead.
2. Since each Committee of the Examination Board is composed of several examiners, the mark for each examination paper is awarded by the Committee as a whole. It follows that neither the method of the arithmetic mean nor the "method of harmonising marks" is mandatory for the Committees.
3. The destruction by examiners of some of the examination papers on which the marks and any comments are entered is a serious contra- vention of the candidate's right to see the assessment by the Examination Board, which in certain cases can be so grave as to render the examination as a whole invalid.
4. The Disciplinary Board of Appeal has no power to refer questions to the Enlarged Board of Appeal.
Relevant legal provisions:
Regulation on the European qualifying examination Art023(1)
Regulation on the European qualifying examination Art023(3)
European Patent Convention 1973 Art 22
European Patent Convention 1973 Art 112
Keywords: Extent of the powers of investigation and decision of the Disciplinary Board of Appeal
Marking by the Examination Committees and not by the individual examiners
No jurisdiction of Enlarged Board of Appeal
Catchwords:

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Cited decisions:
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Citing decisions:
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Summary of Facts and Submissions

I. The appellant sat the first Qualifying Examination for professional representatives before the European Patent Office on 21, 22 and 23 November 1979. On 19 March he was informed that he had not passed the examination and on 8 April 1980 he appealed against that decision; the decision was not rectified. Those proceedings (Case No. D 02/80) were concluded by a Decision of the Disciplinary Board of Appeal dated 8 December 1981 dismissing the objections relating to the organisation of the examination but, for the rest, setting aside the contested decision and remitting the case to the Examination Board for a fresh decision.

In the reasons for its decisions, the Disciplinary Board of Appeal noted that the appellant had not been able to set out proper grounds for his appeal to the Examination Board since he had not been allowed to look at his examination papers beforehand, a right only recognised by an interlocutory decision of the Disciplinary Board of Appeal dated 15 December 1980. In practical terms therefore, rectification by the Examination Board was ruled out a priori and the Examination Board had to take a fresh decision on the matter. The Disciplinary Board of Appeal further directed the Examination Board to consider whether the method followed in harmonising the marks ensured truer results than the arithmetic-mean method.

II. On 10 March 1982 the Examination Board informed the appellant that, even after reassessing the examination papers, it had decided that he had not passed the Qualifying Examination. It further stated that, as already set out in its communication of 19 March 1980, in its view his examination papers B, C and D had been "unsatisfactory" while his performance on paper A had not been good enough for him to pass overall. In answer to the suggestion made by the Board of Appeal, the Examination Board considered that where there were discrepancies in marking by examiners, the method of harmonising those marks produced truer results than the arithmetic-mean method.

III. On 15 March 1982 the appellant filed an appeal against this new decision by the Examination Board. In two Statements of Grounds dated 3 May and 28 June 1982, he repeated the arguments put forward in the earlier proceedings, particularly in the Statement of Grounds dated 14 May 1981. In his first letter the appellant claimed in particular:

As regards paper A: while the examiners initially diverged substantially in their marking, they then settled on the lower of the marks given originally;

As regards paper B: here - as in the case of paper A moreover - marks should not have been available for a discretionary point, viz. inventive step;

As regards paper D: here - as in the case of marking paper A moreover - when harmonising their marks, the two examiners retained the lower mark rather than settling on the arithmetic mean.

In his submissions of 3 May 1982 and 28 June 1982 the appellant emphasised that the only possible explanation for the bad results of the first Qualifying Examination as a whole, which 64% of candidates failed, was the restrictive approach and severity of the examiners and the way they had been influenced by instructions from the Examination Board. He argued that, in contravention of Rule 95a EPC, some examiners had destroyed copies of papers A to D thus hindering him in his submissions and that, furthermore, the names of the various examiners on the copies given to him had been rendered illegible and replaced by abstract reference marks. He regarded that as unjustified restriction of his right to see the papers expressly recognised by the Board of Appeal and also a bar to having the conduct of the examiners who had destroyed some of the documents reviewed by the competent bodies.

In the oral proceedings on 21 September 1982, the appellant requested:

a) a finding that point 6 of the Instructions to candidates for the conduct of the examination was not in conformity with the powers conferred on the Examination Board by Article 5(2) of the Regulation on the European Qualifying Examination for professional representatives before the EPO (OJ EPO 1978, 101, hereinafter "the Regulation");

b) that the contested decision of the Examination Board dated 19 March 1980 be set aside and the matter remitted to the Examination Board with instructions to reassess examination papers A to D, demonstrably taking due account of the appeal submissions dated 14 May 1981 and 3 May 1982, to take a fresh decision on the basis of that reassessment, and to define and account for the unclear and unusual method of harmonisation of marks;

c) in the alternative, that the Disciplinary Board of Appeal itself reassess his papers A to D taking account of his appeal submissions, in the course of these or separate oral proceedings as appropriate;

d) in the event that the Board of Appeal dismissed both the main claim and the alternative claim, that uniform application of the law be ensured by referring to the Enlarged Board of Appeal the question whether the Disciplinary Board of Appeal was to entertain the above-mentioned alternative claim;

e) in the event that the last-mentioned alternative claim was allowed, that the proceedings be stayed pending the decision of the Enlarged Board of Appeal;

f) a finding setting aside the contested decision of the Examination Board dated 10 March 1982 - if appropriate on the basis of the possible re-marking of examination papers A to D as shown - and holding that the appellant passed the first European Qualifying Examination.

The appellant further asked the Board of Appeal to instruct the Examination Board to give him the names of the members of the Examination Committee who had received copies of his examination papers A to D and had not returned them in his file. The appellant submits, inter alia that contrary to the statement in the letter from the Examination Board of 10 March 1982, his earlier appeal could not have been considered carefully as there were no documents corresponding to such a consideration in the file on his examination. Furthermore, in his submissions he explained, using a sketch, that for examination paper D, but not for papers A and B, the range of marks for Grade 7 is excessively wide, deviating from the linear intervals for the other grades.

Reasons for the Decision

1. For the sake of clarity of the following statement of reasons, the individual heads of claim must be examined in the chronological order of their submission, irrespective of which claims the appellant finally classified as main or alternative claims.

2. Claim a Article 5(2) of the Regulation provides: "The Board shall draw up the examination procedure. It shall in particular decide on the list of books and documents which may be used by candidates, shall take the necessary measures for supervising examinations and shall decide on the measures to be taken in respect of candidates found to be cheating or attempting to cheat."

Point 6 of the Instructions to Candidates for the conduct of the examination (hereinafter "the Instructions") provides: "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."

The appellant submits that in adopting point 6 of the Instructions, the Examination Board was exceeding the powers vested in it by Article 5(2) of the Regulation. Against that it may be pointed out that, in its Decision of 8 December 1981, by observing that the appellant had not complied with point 6 of the Instructions, the Board of Appeal had implicitly recognised that that provision was lawful. The appellant conceded at the time that he had taken note of the Instructions in good time but had not doubted their validity. It may therefore be assumed that the doubts as to the validity of the Instructions arising from the allegedly unfavourable physical circumstances of the examination in November 1979, were finally prompted by the Decision of 8 December 1981. Furthermore, the appellant is wrong in claiming now that the list of powers of the Examination Board in Article 5(2) of the Regulation was exhaustive. On the contrary, the words "in particular", corresponding exactly to the words "en particulier" in the French version and "insbesondere" in the German version, show that the list is not exhaustive. The provision that complaints as to the conduct of the examination must be put forward to an invigilator in a prescribed form and within a prescribed time is by no means unfair and falls directly within the scope of the measures for supervising examinations expressly referred to in Article 5(2) of the Regulation. The first head of claim, in which the Board is in any case merely asked for a "finding", cannot therefore be allowed.

3. Claim b

In his main claim the appellant seeks to have the matter remitted to the Examination Board with instructions, first, to reassess examination papers A to D taking account of the criteria mentioned and, secondly, to define the "harmonisation of marks".

Under Article 23(1) and (3) of the Regulation, appeals lie from decisions of the Examination Board "on grounds of infringement of this Regulation" (OJ 1978, p. 101). The Board of Appeal cannot expand those provisions so as to extend its competence and to reassess on appeal the marks given by the examiners. It can go so far as to decide, as the Disciplinary Board of Appeal has already done on 4 February 1982 (Case D 01/81, OJ EPO 7/1982, 258) that the Board of Appeal is empowered to investigate whether the provisions of the Regulation are in conformity with higher-ranking law, particularly the EPC, and whether the decision of the Examination Board rests on an infringement of those provisions. In the present case the appellant's numerous complaints largely concern the marking by the examiners and what he sees as their excessive severity, matters which are not within the purview of the Board of Appeal.

Uniform application of a strict standard does not contravene the examination regulations and it is a matter for the Examination Board and not for the Board of Appeal to determine how strict a standard should be applied. One of the appellant's main complaints concerns the fact that the Examination Board has adopted the method of harmonisation of marks in preference to the arithmetic-mean method. Quite apart from the fact that the method of harmonising marks was impliedly approved in principle by the Board of Appeal in its Decision of 8 December 1981 - otherwise it would not have asked the Examination Board to consider the advantages and disadvantages of both systems - it cannot be ruled out a priori. If the Examination Committee is composed of several examiners, the marks are awarded by the Committee as a whole and until the final decision the marks of its members can be regarded only as mere proposals.

The final mark itself is derived either from the arithmetic mean of the proposed marks - if all markers are in agreement - or from an overall mark awarded in the final discussion. The fact that such an assessment is not unusual is shown by a decision by the Bundesfinanzhof (Federal Finance Court) of the Federal Republic of Germany dated 11 May 1982 which went even further, deciding that in the special case where the candidates' scripts are circulated for separate marking by each examiner (Umlaufverfahren), it was not permissible to use the arithmetic mean to determine the overall mark (Der Betriebsberater, No. 23, 20 August 1982).

In short the uniform method of harmonising marks, like the method of calculating the mean, ensures a balanced assessment and thus does not contravene the examination regulations. The second head of claim must therefore also be dismissed.

4. Claim c

Insofar as the jurisdiction of the Disciplinary Board of Appeal over acts of the Examination Board is defined by Article 23(1) and (3) of the Regulation as interpreted above (OJ 1978, p. 101), the assessment of the Board of Appeal cannot be substituted for the marking by the examiners, at least where - as in the present case - an easily remedied breach of the Regulations is neither proved nor even alleged and is also not evident.

Article 22(3) of the Regulation on discipline for professional representatives (OJ EPO 1978, 91) referring to Article 111(1) and (2) EPC and cited by the appellant, relates to the Disciplinary Board of Appeal's jurisdiction over the Disciplinary Committee or the Disciplinary Board and not over the Examination Board.

5. Claims d and e

Under Article 22(1) EPC the Enlarged Board of Appeal is responsible for "deciding points of law referred to it by Boards of Appeal" (first alternative) or "giving opinions on points of law referred to it by the President of the European Patent Office under the conditions laid down in Article 112" (second alternative).

Since Article 112(1)(b) stipulates when the President may refer a point of law to the Enlarged Board of Appeal, namely "where two Boards of Appeal have given different decisions on that question", it is axiomatic that the second alternative cannot apply to the Disciplinary Board of Appeal since it is the only body of its kind and its decisions cannot therefore differ from those of a parallel body.

As regards the first alternative, reference to the Enlarged Board of Appeal of a question in disciplinary proceedings is ruled out both by the wording and by the sense of the relevant legal provisions.

Textual arguments: Article 22(1)(a) EPC provides: "The Enlarged Board of Appeal shall be responsible for: a) deciding points of law referred to it by Boards of Appeal; ..." It is clear that with the words "Boards of Appeal", this Article is implicitly referring back to the immediately preceding Article 21 and thus refers to Boards of Appeal that are "responsible for the examination of appeals from the decisions of the Receiving Section, Examining Divisions, Opposition Divisions and of the Legal Division", that is the Legal Board of Appeal but not the Disciplinary Board of Appeal.

Arguments derived from the sense: The Disciplinary Board of Appeal of the EPO, set up by Article 5 of the Regulation on discipline for professional representatives of 21 October 1977, is strictly speaking not a department for implementing the procedures within the meaning of Article 15 EPC and is, moreover, not mentioned in that Article. The Convention, which dates from 5 October 1973, cannot refer to a body that was set up pursuant to a provision that did not come into force until 21 October 1977. That position has not been rectified subsequently so there can be no question of an oversight.

While members of the Boards of Appeal, including the Enlarged Boards of Appeal, are, pursuant to Articles 21, 22 and 23 EPC all legally or technically qualified and specifically appointed by the Administrative Council, the Disciplinary Board of Appeal is, pursuant to Article 10 of the Regulation on discipline for professional representatives, composed of three legally qualified members of the Boards of Appeal and two specially appointed professional representatives.

If the authors of the Convention had intended to extend the jurisdiction of the Enlarged Board of Appeal to Decisions of the Disciplinary Board of Appeal, that is to points of law in disciplinary matters, they would hardly have provided for technically qualified members rather than professional representatives. The Board of Appeal cannot therefore allow the fourth and fifth heads of claim either.

6. Claim f

In claim f the appellant asked the Board of Appeal to find, after a regrading, that he has passed the examination and to instruct the Examination Board to communicate to him the names of the markers who received copies of his examination papers and have not returned them to the file. It has already been stated with regard to the first claim that the Board of Appeal cannot substitute its assessment of the papers for that of the Examination Board. Grading too is a matter for the discretion of the Examination Board unless it is proved or alleged that it was not the same for all the candidates, thus infringing the principle of equality of treatment.

The appellant indicates that he seeks disclosure of the names of the markers because he believes that he will then be in a position to take steps against the examiners. He does not, however, allege either that they were biased or that they acted unlawfully.

It is therefore not a matter for the Board of Appeal, which is not entertaining and, moreover, cannot entertain an action based on personal liability, to decide on the admissibility of evidence in a procedure which is outside its jurisdiction.

7. The allegation that some of the marked copies have been destroyed Correspondence between the Examination Board and the appellant reveals that the examiners receive not the originals but only photocopies of the papers on which they enter the marks they intend to award and any comments. On the conclusion of the assessment procedure the copies remain in the possession of the examiners. In the present case four of the eight copies of papers A and B were missing and the appellant was therefore unable to ascertain what marks were awarded therein.

This was also the position with one of the four copies of paper D.

The appellant relies inter alia on Article 125 EPC and rightly submits that such conduct is a serious breach of his right to inspect the examination documents expressly recognised in the earlier proceedings by the Decisions dated 15 December 1980 and 4 February 1981. A conceivable excuse for the Examination Board is that at the time when the copies were destroyed, the candidate's right to appraise himself of the assessments of the Examination Board by inspecting the marked copies had not yet been recognised by the Board of Appeal.

It must, however, be borne in mind that as the method of marking now stands, unsuccessful candidates would only have access to the originals of their papers on which to base any appeal if every examiner felt entitled to destroy the copies in his possession after marking; no marks at all appear on the originals, however, and they would therefore be of no use to the candidates in practice. Contrary to the view of the appellant, this alleged failing on the part of the examiners is not an infringement of Rule 95a EPC which relates only to the keeping of files of European patent applications. It does, however, contravene the right of an unsuccessful candidate to inspect the assessment by the Examination Board, a contravention which in this case is so serious that it renders the whole examination invalid. According to the principles of procedural law generally recognised in the Contracting States, which the Board of Appeal properly has to take into account here pursuant to Article 125 EPC, the breach of a fundamental legal principle in a procedure means that the whole procedure must automatically be declared invalid.

But that does not mean that the Board of Appeal has to declare that the candidate has passed the Qualifying Examination. It can only rule that the candidate must be deemed not to have sat the examination and that if he re-sits the examination he will be exempt from paying the examination fee.

ORDER

For these reasons, it is decided that:

1. The Decision of the Examination Board dated 10 March 1982 is set aside and the first Qualifying Examination for professional representatives before the EPO is declared invalid insofar as the appellant is concerned.

2. The applications for the matter to be remitted to the Examination Board and for the case to be referred to the Enlarged Board of Appeal and for communication of the names of the members of the various Examination Committees are dismissed.

3. The appellant is entitled to sit the examination again without paying the examination fee.

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