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Thursday, 19 February 2009

The EQEs and Languages

A couple of work colleagues of the IPKat's newly-installed amenuensis Birgit, Paul Briscoe and Daniel Weston, were wondering about what might be happening to the regulations for the European Qualifying Examination, and wondered if the IPKat's readers might be able to assist them.  He is, of course, happy to help and would in any case like to know as well.


The IPKat commented recently (here) about one apparently particularly divisive part of the proposed new implementing regulations (which the IPKat has still not yet seen in full: can anyone forward a copy to him?).  Another, not quite so contentious but nevertheless important, change has also been mooted, this time relating to the number of languages a prospective EPA will need to be familiar with when taking paper C (opposition).  

The question is whether the new regulations (available here, ici & hier) will require all the examination documents to be made available in all three EPO languages, and not just two as they are at the moment (meaning that at least one document will not be in your preferred language).  For English speakers, this generally means that you need to pick either French or German and hope that the document that turns out to be not in English is not too crucial (which, unfortunately for this Kat, it was last year). For those fluent in two of the languages this is, of course, not an issue so you can stop reading now.

The relevant bit of the current regulation (which applies to the 2009 exams) is Article 15, which states:
"Languages

(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."

The relevant bit of the new regulation (which will apply to the 2010 exams) is Article 12, which states:
"Languages

(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) The candidates’ answers shall be given in one of the three official languages of the EPO unless otherwise prescribed in accordance with paragraph 3.

(3) The IPREE may contain special provisions concerning the use of an official language of a contracting state other than one of the official languages of the EPO."
What the IPKat would like to know is whether this means that all the examination papers (including the state of the art documents in paper C) will be available in all three languages, or whether (as he suspects) there is something else specific in the IPREE that applies.  Can anyone help?  If anyone has a copy of the proposed IPREEs, the IPKat would be very interested to see them, and will happily make them available for all to see.

15 comments:

Anonymous said...

I recommend the Kat to go through a few previous C-Paper, not just last year's. He'll find out that the document not in English is always crucial. And nobody has ever denied that this is on purpose.

Anonymous said...

Why isn't there a Welsh option?

Anonymous said...

Utterly off-topic, but why "work colleague"?

Nick said...

Not answering the question posed, but asking a related one:

As I understand it all EQE candidates receive the same bundle of prior art documents plus the same translations.

Does this not mean that the difficulties of the paper lie in different places dependent on the languages with which the candidate is conversant?

For example, first imagine the (minimum of) 3 prior art documents are available as: A2 (En/Fr); A3 (En/Ge); and A4 (Fr/Ge).

Secondly, imagine A3 is novelty destroying (Art.54(3)) and 'the' inventive step argument is A2 (closest prior art) + A4 (the solution).

Assuming a relatively mono-lingual candidate, then if French the novelty attack is harder, if German finding the closest prior art is harder and if English finding the solution is harder.

I guess it all pretty well balances out in the end, and that this may only be an issue for a minority (in particular natives of a island in NW Europe) of candidates. However there clearly seems to be the potential for some differences to arise dependent on the language in which the exam is sat.

Thoughts?

David said...

Anonymouse #1: I have been through previous C papers, and I think your point is a little unfair. In 2004, for example, one could have entirely ignored the one document available only in French and German and only lost a few marks (I think). In 2008, however, the document available in French and German was the one that had to be used for a novelty attack on claim 1, and inventive step attacks on others claims. Ignoring that one would have resulted in certain failure.

Anonymouse #2: "work colleague", because Birgit, Paul and Dan are all part of the same bowler hat brigade at Boults. IPKat-related stuff is, of course, not work.

Anonymous said...

David You may be right. I passed the EQE in 2002 and I can tell you that, going through all previous Compendia it quickly dawned on me that during Paper C I'd to take a very hard look at the French/German document, as, until then, it was always either the closest prior art, or a 54(3) doc, or the first document to combine with the closest prior art to attack on inventive step. The Board may however have been a little less devious in 2004 (or more devious, trying to confuse candidates who, like me, would reserve some time to examine the French/German document closely). I know for a fact that it wasn't just monolingual English-speakers who complained about that feature of Paper C: it wasn't very fair on those (mostly sitting the paper in English) whose mother tongue was neither English, nor French or German.

- First AnonyMouse

David said...

To answer Nick's comments above, I would say that it definitely makes a difference which language you take paper C in, because that dictates which prior art documents are more easily understood. Having only 2 out of 3 languages available can never make it even, since some documents are more relevant than others.

If they were all available in all three languages that would make it exactly the same for everyone, and therefore fairer. I have heard a well-sourced rumour that this is exactly what is going to happen for next year's paper.

Dean said...

I understand David and Nick's reasoning, but I always find it strange when someone trying to become a 'European' Patent Attorney complains about the need to have a reasonable level of comprehension of written English, French and German.

The non-English prior art documents in Paper C only ever requires the translation of 1 - 1 1/2 pages of text. From my own experience once you have sat enough practice Paper Cs this translation becomes just another part of the exam to work through as you generate your notice of opposition.

In conclusion I don't see any need to amend this minor aspect of Paper C and it would in my opinion be a much better idea to instead make the marking of Paper C more flexible, so that decent arguments attract at least some marks even if they do not use the optimum combination of prior art references.

But then the EPO doesn't seem to be taking a very logical approach to the EQE at the moment, so if this change is made hopefully more candidates will pass as a result.

ps. Good luck to all those sitting the EQE this year

David said...

I would like to remind the last pseudonymouse of Article 13 of the regulations, which states:

"Article 13
Examination syllabus

The examination shall establish whether a candidate has:

(1) a thorough knowledge of:

(a) European patent law as laid down in the EPC and any legislation relating to Community patents

(b) the Paris Convention (Articles 1 - 5 quater and Article 11)

(c) the Patent Cooperation Treaty

(d) all decisions of the Enlarged Board of Appeal and EPO case law as specified in the IPREE, and

(2) a general knowledge of the national laws of:

(a) the contracting states to the extent that they apply to European patent applications and European patents

(b) the United States of America and Japan to the extent that they are of importance in connection with proceedings before the EPO."

If "a reasonable level of comprehension of written English, French and German" (clearly in itself a nice thing to have anyway) was a requirement to become a qualified European patent attorney, don't you think it would say so in the regulations?

Anonymous said...

Is mastering all three official languages an unfair advantage?

I do not think that the language problem is really the basis for low passing rates. I was an EQE "examiner" for two years, and my experience from correcting papers was that there were much more fundamental problems at play. For instance, the correct hierarchisation of technical phenomena - which is the broader concept. Many candidates were not able to correcly classify technical phenomena, something that is the fault of the technical universities, rather than the fault of the training for the EQE. Simple things like if you remove one feature, you broaden the claim and vice versa, were not well understood. The reason why you might end up with lack of unity if the main claim failed was not well understood. To fight these problems under stressful conditions and with some language barriers - well I can understand why the pass rate is so low.

Anonymous said...

"hierarchisation"? English translation please...

Anonymous said...

Hierarchisation is as English as it comes. It is the act of applying hierarchies. In the present context I see a technical phenomenon as being amenable to description (being describable, otherwise we could not define it in a claim). This description uses a combination of concepts, and each concept will be in a hierarchy: it is between a broader concept and narrower concepts. In a Thesaurus (which provides a structure to knowledge) we would talk about ‘keywords’ and ‘broader terms’ and ‘narrower terms’. Now, if we wish to broaden a technical phenomenon to include more, we would do that by going up in the hierarchy connected to one (or more) of the concepts in the combination that described the phenomenon in the first place. Similarly, we may narrow it by going down in the hierarchy of one of the concepts.

A few examples may ease the understanding: the OPUS team at esp@cenet presently runs a small competition, in which Galileo’s invention 1609 of the (Galilean) telescope features prominently. They ask us about the Zeiss group of companies, one of which “is still dedicated to the production of these instruments”. Now, a Galilean telescope is a well-known construction that is used for opera glasses and (inverted) in photographic camera viewfinders (and in some stereo microscopes). I think that although patents on such constructions have indeed been taken out within the last 50 years, you will not find these products in the subsidiary to Zeiss that they are thinking about, and so the rest of the questions are fundamentally nonsense. Although Galilei invented the Galilean telescope, the OPUS team have probably broadened the concept to “telescopes”, and while the Sports Optics division of Zeiss does manufacture telescopes, the Galilean ones were mainly in the optical and camera divisions that no longer exist.

Another example from traditional tuition in patent drafting. Two mechanical elements are joined. The inventor said “screwed connection”, the patent attorney asked whether the joint were to permit rotation or be fixed. In the former case, a stud, washer, and peening to obtain a rivet head would perform in an equivalent manner. In the latter case, riveting, welding, cementing or even having the elements in one piece would perform in an equivalent manner. The broadest claim has to choose the hierarchical level of each contributing concept that is broad enough to cover all imaginable embodiments.

The following books are in German: I would consider their study compulsory for a European Patent Attorney, irrespective of mother tongue. Perhaps not before attempting to pass EQE, although they induce you to a clarity of mind that may help, but at least afterwards, simply to become a better arguer based on delimitation of technical concepts. And I have referred to them in arguments presented to an EPO examiner – these books should be compulsory here as well. We ought to raise the bar by arguing better.

Kurt Stamm: „Logik im Patentrecht. Fundamente der Urteilsbildung“, Carl Heymanns Verlag KG, Cologne 2002.

Fritz Dolder: „Erfindungshöhe. Rechtssprechung des Europäischen Patentamts zu Art. 56 EPÜ. Mechanik, technische Physik, Verfahrenstechnik, Werkstoffe“, Carl Heymanns Verlag, Cologne 2003.

Brian Barker said...

As far as a common international language is concerned, may I make a plea for Esperanto?

If you have time please check the Esperanto website on http://www.lernu.net

Nick said...

In response to Brian:

Genius. In EQE paper C, all prior art documents are available in all three official languages, except for one, which is only available in Esperanto. It's nothing if not fair!

Incidentally, Brian, how does one say "Consequently it must be concluded that the skilled person would arrive at the subject-matter of claim 1 without exercising inventive skill. Hence claim 1 does not involve an inventive step in the sense of Article 56 EPC" in Esperanto?

Dean said...

Sorry David, I do not follow your reasoning are you saying that the Article you quote means that the EQE only tests the things listed?

That has to be nonsense.

The EQE tests those elements explicitly listed and also tests certain skills which must be implicitly present, such as being able to write a comprehensible answer, being able to read and understand the materials of the exam.

Perhaps the comprehension of more than one official language is pushing the limits of what one could say is implicit in the skills the EQE wishes to test, but given that children in most European Countries study at least two modern European Languages from the time they start school, I do not think it is unreasonable to at least consider that the basic level of second language comprehension required by Paper C was believed to be implicit in EQE candidates who must all hold at least one higher education degree.

I see from your later post that this aspect of Paper C is possibly going to change and as I say if this does happen I hope it allows more candidates to pass, although I have serious doubts that this will happen.

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