D 0003/87 (Decisions in borderline cases) of 28.9.1987

European Case Law Identifier: ECLI:EP:BA:1987:D000387.19870928
Date of decision: 28 September 1987
Case number: D 0003/87
Application number: -
IPC class: -
Language of proceedings: DE
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Board: DBA
Headnote: A simple reference to No. VI or VII of the "Instructions" (OJ EPO 7/1983, p. 296) may suffice to substantiate a decision by the Examination Board in a borderline case under Article 5(3), second sentence, in conjunction with Article 12(3) of the Regulation on the European Qualifying Examination, provided the principles published in the "Instructions" of themselves support the decision (cf. D 01 - 03/86; Headnote II).
Relevant legal provisions:
Regulation on the European qualifying examination Art005(3)
Regulation on discipline for professional representatives Art 12(3)
Keywords: Decisions in borderline cases
Reference to instructions
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Summary of Facts and Submissions

I. The appellant sat the seventh European Qualifying Examination for professional representatives before the EPO in 1986. He obtained the following marks for the various papers: A: 4 "Pass", B: 6 "Inadequate", C: 5 "Slightly inadequate" and D: 3 "Good". The Examination Board therefore had to decide separately, under Article 5(3) in conjunction with Article 12(2) and (3) of the Regulation on the European Qualifying Examination for professional representatives before the European Patent Office (REE - OJ EPO 1983, 282), whether the appellant had passed the examination. The decision was given on 18 November and is totally devoid of any specific explanations.

II. The appeal is against the aforementioned decision, the appellant essentially requesting that the contested decision be set aside and the matter referred back to the Examination Board.

III. The President of the Council of the Institute of Professional Representatives before the European Patent Office and the President of the European Patent Office were consulted under Article 12 of the Regulation on discipline for professional representatives (OJ EPO 1978, 91) in conjunction with Article 23(4) REE.

IV. On 5 May 1987 the Board of Appeal in a leading decision in respect of cases D 01/86, D 02/86 and D 03/86, (Decision published in OJ EPO 1987, 489-498) stated particularly that decisions of the above kind must be substantiated (Headnote II and Reasons, points 3 and 4).

Reasons for the Decision

1. The appeal complies with Article 23(2) REE and is therefore admissible.

2. Since the present case again involves a decision lacking any explanation relating to the specific case, the Board of Appeal must follow its decision of 5 May 1987. The kind of marking pattern found in this case could indicate the type of situation covered by No. VI of the Instructions to the Examination Committees for marking papers (OJ EPO 1983, 296-297), namely failure in other papers to achieve marks well above "pass" level. Should the Examination Board find this to be the case, a simple reference to this point of the Instructions is sufficient substantiation for a new decision by the Board.

3. Since the contested decision is set aside, there is no reason to consider the appellant's request for his test papers to be re-marked.

ORDER

For these reasons, it is decided that:

1. The decision of the Examination Board for the European Qualifying Examination dated 18 November 1986 is set aside and the matter referred back to the Examination Board for further consideration.

2. The appeal fee is to be reimbursed.

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