2.6.3 Objective review of the marks awarded

In accordance with the DBA's consistent case law (in particular D 1/92, OJ 1993, 357 and D 6/92, OJ 1993, 361), decisions of the Examination Board may in principle only be reviewed for the purposes of establishing that they do not infringe the REE, the provisions relating to its application or higher-ranking law. In D 1/92 and D 6/92, the DBA therefore concluded that its functions did not include reconsidering the examination procedure on its merits. Accordingly, the Examination Board's value judgment concerning the number of marks that an examination paper deserved was not subject to review by the board. Only if the appellant could show that the contested decision was based on serious and obvious mistakes could the board take this into account. The alleged mistake must be so obvious that it could be established without re-opening the entire marking procedure, for instance if an examiner was alleged to have based his evaluation on a technically or legally incorrect premise on which the contested decision rested. Any further claims regarding alleged defects in the assessment of candidates' work fell outside the DBA’s jurisdiction, since value judgments were not subject to judicial review. These findings were confirmed in D 7/05 date: 2006-07-17 (OJ 2007, 378). See also, for example, D 9/00, D 7/01, D 11/01, D 16/02, D 6/04, D 14/08, D 23/08, D 1/13 and D 5/13.

In D 6/98, the DBA added that these conditions were in line with those for correcting errors under R. 89 EPC 1973 (cf. now R. 140 EPC), particularly in the case of errors of transcription or calculation in the marking. Under Art. 27(1) REE 1994 (cf. Art. 24(1) REE), the DBA was not empowered to reopen the assessment procedure (D 15/97). The DBA was not intended to be a department of second instance empowered to examine whether the marks awarded for a candidate's examination were justified on their merits or correct, and thus to superimpose its own value judgment on that of the Examination Board (D 20/96 and D 6/02).

In D 13/02 the board stated that obvious mistakes as referred to above were those which could be identified without a re-evaluation of the examination paper. That would be the case, for instance, if one and the same paper had been marked very differently by the two examiners, since the marking discrepancy alone would indicate an infringement of the principle of uniform marking, irrespective of the level of the marks awarded. Another example of an obvious mistake would be a question whose wording was ambiguous or incomprehensible. That would be clear straight away, without any reference to marks awarded, from the meaning that common sense would ascribe to the wording of the question concerned.

D 17/05 cited D 13/02 to point out that the existence of a mistake within the meaning of D 1/92 could not be deduced from a comparison of the candidate's answer with another answer. The board also cited the statement that the disclosure of marking instructions which may have been used by the examiner was not required for a decision on an appeal and that under the established case law no other entitlement existed to any such disclosure.

D 6/13 concerned an alleged infringement by the Examination Board of R. 23(3) IPREE (regarding the content of Paper A). The Board agreed that the Examination Board has an implied obligation to prepare the examination papers and corresponding marking scheme correctly, in that the marking scheme should award the appropriate marks for correct solutions and this "correct" marking scheme should also be "correctly" applied in every case. However, the DBA may not be competent to determine whether the marking scheme or individual marking is correct from every possible aspect which may have adversely affected the marking of a candidate, given that Art. 24(1) REE excludes certain appeal grounds. Therefore, if the Examination Board did not "perfectly" fulfil this implied obligation, in that arguably correct solutions were not awarded any or enough marks, this could not qualify immediately as an infringement of R. 23(3) IPREE in the sense of Art. 24(1) REE, but was a question be decided on a case-by-case basis. If the DBA were to extend the examination of appeals to an in-depth technical examination, this would in effect reduce to zero the scope of the restriction on the possible appeal grounds stipulated in Art. 24(1) REE, and require value judgments to be made.

In D 3/00 (OJ 2003, 365) the appellant claimed that for each question in paper D, parts 1 and 2, he should have been awarded the highest number of marks awarded by one of the two examiners who had marked his paper. In D 12/00, too, the appellant claimed that the higher number of marks should count. Any discrepancy between the markings of each examiner showed gross disregard for the principle of uniformity within the meaning of Art. 16 REE 1994 (Art. 6(2)(c) REE, English text, now provides for consistency of marking). The board confirmed its established case law, adding that differences of opinion over the number of marks to be awarded for a given answer were a reflection of value judgments which were not, in principle, subject to judicial review. It had also already been explained in D 4/99 (see in this chapter V.C.2.3. above) that the marking of examination papers was an individual assessment and that, within the general instructions to the examiners for marking the papers (IPREE 1994), more or less strict standards were possible and different aspects might be considered essential or less important. Hence it was consistent with the ratio legis of Art. 8(b) REE 1994 (cf. Art. 8(1)(e) REE) that the examiners had some (limited) latitude of evaluation when awarding marks and might therefore arrive at different marks, both results being justifiable (D 5/94 and D 6/98). The fact that two independent examiners had arrived at different marks was not per se a violation of the applicable provisions (D 12/00). In D 3/00 the board drew attention to the fact that, with regard to the evaluation of the merits of a candidate's answer in an examination paper, a candidate was not per se entitled to claim the highest mark awarded by one of the examiners for each answer to a sub-question or sub-element whenever the two examiners who marked the paper in accordance with Art. 8(b) REE 1994 differed in their marking.

D 6/07 and D 7/07 were among a number of appeal decisions concerning the marking of paper C of the 2007 examination. A large number of candidates had taken as the starting point for their attack on the claims a document which the examination committee did not consider to represent the closest prior art and had been awarded no points in this regard. The Examination Board took the view that, in keeping with long-standing practice, some credit should be given for properly drafted problem and solution approaches even where the wrong starting document for assessing inventive step had been used. Given the lateness of the proceedings and the impossibility of re-marking all the papers, it decided, as an exceptional measure, that the fairest option would be to award ten additional points (being the maximum number possible) to all candidates having sat the paper. The DBA held first that the awarding of no points by the examination committee infringed the requirements of R. 4(2) and (3) IPREE 1994: the "fit to practise" criterion required the examiners in marking the individual parts of a candidate's answers not to disregard their merit in the context of the whole answer paper (D 3/00, OJ 2003, 365) and the need to allow for the fair marking of answers which, although deviating from the marking scheme, were nonetheless reasonable and competently substantiated (D 7/05 date: 2006-07-17, OJ 2007, 378). The board further ruled that, under Art. 7(3) REE 1994, it fell to the Examination Board to award the grades "pass", "fail", or "compensable fail" and formally to decide whether the whole examination had been passed or not. Its powers did not extend to the preceding marking of candidates' individual papers on a scale of zero to 100, and therefore the alteration of the marks awarded by the examination committee (in accordance with Art. 8(b) REE 1994 and R. 4(1) IPREE 1994) by the blanket addition of ten marks per paper had been ultra vires. The abstract awarding of marks without regard to the "fit to practise" criterion of R. 4 IPREE 1994 in the individual candidates' examination papers infringed the principle of objectivity as well as Art. 8(b) REE 1994 and R. 4 IPREE 1994. In conclusion the DBA ordered a new marking of paper C of each appellant in accordance with R. 4 IPREE 1994, with the ten additional points already awarded to be retained by the appellant.

In D 24/17 the DBA found that on most issues the appellant did not substantiate in detail in what respect the solution of the examiners’ report was incorrect, but left it to the board to establish of its own motion to what extent the official solution and the marking of her papers was or could have been wrong. This would go beyond the scope of the board’s review. Only on the clarity-related issues in paper B were the appellant’s submissions (partly) well-founded. It was evident that she had addressed at least some of them in her answers, and it was therefore incomprehensible that no point at all was awarded. This amounted to a serious and obvious mistake which affected the marking. The board remitted the case for paper B to be re-marked with respect to the aspect of clarity and ordered reimbursement of the appeal fee at 25%.

In D 13/17, the DBA stressed that Paper A had a particular structure in that it was based on a single set of facts which meant that a wrong answer to one part was very likely to result in the other parts being wrongly answered too. That had to be taken into account when devising a marking scheme, as did the applicable regulatory requirements. In particular, R. 6(1) IPREE provided that each answer paper was to be marked on a scale from zero to 100; it said nothing about deducting marks. There was much to suggest that the marking had to start from zero, with marks then being awarded for each correct answer or partial answer and added up. Especially given Paper A's particular structure, a marking scheme that allowed more marks to be deducted overall than were achievable in total was essentially untenable if the requirement for fair marking established in the case law was to be met. A different conclusion could, if at all, be reached only if the possible deductions were not cumulative and instead applied to separate and mutually exclusive wrong or incomplete answers. With regard to the possibility that marks might be lost twice for a single mistake because, owing to Paper A's particular structure, a wrong answer to one part could have implications for the answer to another part, the board held that such a "double penalty" was not in keeping with the standards for fair marking set in the case law.

In D 14/17 and in D 20/17 the DBA allowed the appeal in respect of Paper C. In the light of the examiners' report, giving the appellant 0 out of 20 marks for the inventive step attack regarding claim 2 appeared to be founded solely on the deviation in the choice of the closest prior art. The board referred to the case law on the examiners’ obligation to allow for fair marking of answers which, although deviating from what was expected according to the examiners’ report, were reasonable and competently substantiated (cf. inter alia D 7/05 date: 2006-07-17, OJ 2007, 278, and D 12/82, OJ 1983, 233; cf. also the "fit to practise" criterion of Art. 1(1) REE). Based on a summary examination and (at least) a figure filed by the appellant, it was evident for the board that, contrary to what was asserted in the examiners’ report, no technical obstacle existed with regard to Annex 6, which was reasonably to be regarded as an alternative starting point (see also e.g. parallel case D 25/17). Furthermore, having concluded that there were special reasons not to remit the case to the Examination Board (cf. Art. 12 Additional Rules of Procedure of the DBA – see in this chapter V.C.1.; here: prima facie competent and logical answer, small number of marks involved, very short time between oral proceedings and next EQE session), the board in D 14/17 allowed the appellant's requests to be awarded a "compensable fail" for Paper C and, based on that, to be declared to have passed the EQE (Art. 14(1) REE). See also in this regard D 3/14, summarised in the next section, and D 5/14, both concerning the EQE pre-examination.

In some cases, the DBA has made it clear that the case law on the questions and marking of the pre-examination (see next section) is not applicable to the EQE because the former leaves no room for discretionary marking. Thus, according to D 20/16, the decisive difference between the pre-examination (R. 10 IPREE) and the EQE, in particular Paper A (R. 23 IPREE) is as follows. In the former, candidates are expected to respond to clearly defined questions or statements in a multiple choice mode, to which they can only answer "true" or "false" by ticking a box; they have no possibility to add any reasons or explanatory notes. In the latter, candidates can offer solutions which they find meet the requirements of R. 23 IPREE, and even, if need be, give reasons for their proposals in supplementary notes (R. 23(6) IPREE). For Paper A, the members of the Examination Board have a broad discretion when awarding marks. See also e.g. D 16/17.