D 0001/81 (Powers of investigation) 04-02-1982
1. In matters connected with examinations, the Disciplinary Board of Appeal is empowered, pursuant to Article 23(1) of the Regulation, to investigate whether the provisions of the Regulation are in conformity with higher-ranking law, particularly the EPC, and whether the appealed decision rests on an infringement of such law or of the provisions of the Regulation. An incorrect application of those provisions or a misuse of discretionary powers in their application certainly constitutes infringement.
2. The Examination Board is operating within the scope of the discretionary powers conferred by Article 7(1)(a) of the Regulation in making the corroboration of an equivalent level of knowledge dependent on the type of qualifications obtained by the candidates, differentiating between such qualifications on the basis of a minimum period of education and requiring candidates not holding such qualifications to attend an interview to satisfy the Examination Board that they possess an equivalent level of knowledge.
Extent of the powers of investigation and decision of the Disciplinary Board of Appeal
Differentiation between educational establishments
Interview to corroborate level of knowledge
I. By decision dated 12 May 1981, the Examination Board for the European Qualifying Examination of the European Patent Office declined to admit the appellant to that examination. The reason it gave was that the appellant did not satisfy the conditions as a candidate for enrolment under Article 7(1)(a), second alternative, of the Regulation on the European Qualifying Examination for professional representatives before the EPO (OJ EPO 1978, 101, hereinafter referred to as "the Regulation"), namely that he could not satisfy the Examination Board that he possessed an equivalent level of scientific or technical knowledge within the meaning of that provision. In applying this requirement, the Examination Board has adopted the system published in OJ EPO 1980, 218, at p. 220, point 5.4.1(b), under which educational establishments which satisfy the first alternative of the above-mentioned provision are set out in a List A and certain other establishments in a List B. Candidates holding qualifications from List B establishments are regarded as satisfying the requirement, provided that they have worked for three additional years in activities pertaining to patent matters. The educational establishments in List B are those at which qualifications can be obtained after a minimum period of study of 15 years (primary, secondary and further education combined). The Examination Board decides case by case on the enrolment of candidates possessing qualifications not included in List A or List B. Under this system, the candidate was unable to satisfy the Examination Board that he possessed an equivalent level of knowledge within the meaning of Article 7(1)(a), second alternative of the Regulation. He had completed a course at an Austrian Higher Technical Institute (Höhere technische Lehranstalt) which does not meet the requirements for List B.
He was not therefore able to satisfy the Examination Board of his equivalent level of knowledge, within the meaning of the said provision, by having completed the course and worked for an additional period of three years. He was thus one of those candidates on whose enrolment a decision is to be taken case by case in accordance with the Notice in OJ EPO 1980, 218, at p. 221, point5.4.1, last paragraph. The Examination Board suggested that the candidate satisfy it of his level of knowledge in an interview.
The interview, which would have been conducted by two members of the Examination Board and one EPO examiner, was to cover the candidate's basic theoretical, scientific and technical knowledge in a field chosen by him. As the candidate declined to attend the interview, his enrolment application had to be refused. The Examination Board would not consider any form of evidence other than the proposed interview.
II. By letter dated 19 May 1981, the appellant filed an appeal against that decision. In the statement of grounds and subsequent letters, he submitted that the educational establishment whose course he had completed had been incorrectly omitted from List B. Furthermore, the restriction of evidence of an equivalent level of knowledge to an interview was inadmissible. Under procedural law, limitation of evidence was admissible only where expressly provided.
Other possible forms of evidence were school reports, continued practice in a professionally qualified capacity, references and works of a scientific or technical nature. The detailed corroboration produced by the appellant of his formal education, his many years of practice in the profession, his qualifications as head of the patent department of a large firm and his own inventions was, he maintained, sufficient to satisfy the Examination Board as stipulated in Article 7(1)(a), second alternative, of the Regulation. Furthermore, the approach to Austrian Higher Technical Institutes was discriminatory in comparison with German Technical Colleges (Fachhochschulen), but particularly compared with Swiss Higher Technical Institutes (Höhere technische Lehranstalten). The total period of training at the Austrian establishments was 16 years, including the three years' practical experience following the examination. This entire course had to be completed before a person could carry the title "Ingenieur".
The appellant submitted a letter of 7 July 1981 from the Austrian Federal Ministry for Building and Technology (Bundesministerium für Bauten und Technik) confirming this fact. The letter says that a total training period (school and practice) of at least 16 years (4 years' elementary school (Volksschule), 4 years' upper school (Hauptschule) or general secondary school (Höhere Lehranstalt), 5 years' Higher Technical Institute, 3 years technically-oriented practical work) are necessary before a person is eligible for the title "Ingenieur". As far as relative standards were concerned, there are administrative agreements between the Austrian Republic on the one hand and the Federal Republic of Germany and the Swiss Confederation on the other, recognising the equivalence of the title "Ingenieur" or the phases of education (Higher Technical Institutes). A further letter from the Ministry dated 4 December 1981 states that the 3 years' relevant practical experience is only recognised if it requires a high degree of specialised technical knowledge. In each individual case a check is made to see whether the practical experience satisfies that condition. The appellant also submitted curricula and calculations to corroborate the teaching content and total number of hours of study in Austrian Higher Technical Institutes compared with technical institutes in other Contracting States.
III. In his arguments presented at the oral proceedings on 4 February 1982, the appellant stressed that in view of the 16-year training period necessary in order to be able to use the title "Ingenieur", the Austrian Higher Technical Institutes satisfy the requirement for inclusion in List B of a minimum 15 years' formal education. Should any other confirmation be required of his level of scientific or technical knowledge within the meaning of Article 7(1)(a), second alternative, of the Regulation, he emphasised that his employer had confirmed to him that he was at such a level and that there was therefore no reason for requiring him to attend an interview as further corroboration.
IV. Reference is made to the files for the remaining facts of the case, particularly those establishing that the appeal is admissible and the detailed documentation of the appellant's qualifications and his other submissions.
V. The appellant requests, that the decision of the Examination Board be set aside and that he be regarded as having satisfied the requirements of Article 7(1)(a), second alternative, and Article 16(2)(a) of the Regulation.
1. The appeal complies with Article 23 of the Regulation and Article 6 of the Additional Rules of Procedure of the Disciplinary Board of Appeal and is therefore admissible.
2. Under Article 23(1) and (3) of the Regulation on the European Qualifying Examination for professional representatives before the EPO ("the Regulation"), the Disciplinary Board of Appeal is empowered to investigate whether the Regulation is in conformity with higher-ranking law, particularly the European Patent Convention, and whether decisions of the Examination Board infringe the Regulation. If and insofar as the Regulation allows the Examination Board a margin of discretion for its decision, the Disciplinary Board of Appeal is confined to examining whether the discretionary power has been abused. Article 7(1)(a) of the Regulation gives the Examination Board a margin of discretion to lay down and apply principles concerning equivalent levels of knowledge and further to decide what corroborative factors it will rely on. But it must be guided purely by pertinent considerations in line with the normative purpose of Article 7(1)(a) of the Regulation.
3. A first question to be decided is therefore whether the principles laid down by the Examination Board for the application of Article 7(1)(a), second alternative, of the Regulation (published in OJ EPO 1980, 218, at p. 220, point 5.4.1) are defective in this respect. A further question is whether those principles were correctly applied to the appellant's particular case, i.e. without infringing the Regulation.
4. For the admission of candidates to the European Qualifying Examination, Article 7(1) of the Regulation requires in sub-paragraph
(a) a certain level of formal education and in sub-paragraph
(b) a certain level of practical experience. Attainment of a required level of formal education under sub-paragraph (a) does not necessarily have to be verified by a university-level qualification, as is clear from the second alternative. This does not, however, mean that the requirement of formal education can be dispensed with altogether or that any kind of education will suffice. There can therefore be no objection to the Examination Board deciding in line with the principles it has adopted that apart from university-level qualifications (List A), the only other educational qualifications which satisfy the requirement, if combined with a further three years' professional experience, are those set out in List B.
5. There has to be some criterion for making the consequent necessary differentiation between those non-university establishments which can be entered in List B and automatically confer eligibility for enrolment after a suitable period of professional experience, and those for which it is necessary to decide on enrolment case by case. The requirement of a certain minimum period of education is, in principle, a proper criterion. Likewise, a period of 15 years cannot be regarded as disproportionate or a misuse of discretionary power. The question of whether a possible alternative would be to lower the minimum period required but to take into account additional factors such as the curriculum and hours of instruction or supervised training after the final examination can therefore be left open. In the appellant's case, such an alternative might result in his educational qualification being taken into account. However, the Examination Board cannot be considered to have acted improperly in not opting for such a method, although it would perhaps have been fairer to the candidates. The Examination Board also has to ensure that its method can be put into practice in view of the number and diversity of educational establishments in the Contracting States, and recognised as objective in all those countries.
6. In the light of these considerations, the decision of the Examination Board to concentrate on the actual period of formal education and not to consider the subsequent practical experience cannot be faulted. The point in question is to provide corroboration of a formal educational background as required by Article 7(1)(a) of the Regulation, whereas it is Article 7(1)(b) of the Regulation which requires corroboration of professional experience. There is nothing to suggest that the cited practical experience acquired between completing the course of education and qualifying for the right to use the title "Ingenieur" is akin to formal education. Clearly, such practical work is no longer the responsibility of the educational establishment and does not form part of its teaching programme.
Nor does the international recognition of the equivalence of forms of training which qualify a person to use the title, "Ingenieur" constitute any ground for accepting such an equivalence in the case of enrolment for the European Qualifying Examination. The Examination Board must select its differentiating criteria in line with the normative purpose of Article 7(1)(a), second alternative, of the Regulation and in so doing is not obliged to take account of agreements made by other bodies for other purposes. But it is worth noting that, irrespective of the German-Austrian agreement on the right to use the title "Ingenieur", the corresponding types of educational establishment are not recognised as being equivalent for the purposes of admission to the German Patent Attorney Examination (cf. Section 172, paragraph 4, of the DE Patent Attorney Regulation (Patentanwaltsordnung) and Kelbel, Komm PAO, p. 442, point 6). The comparisons made by the appellant of the number of teaching hours and submitted as an indication of the intensiveness of the courses are not convincing, since (a) he compares technical colleges with courses lasting 5, 4 and 3 years respectively, (b) the corresponding academic years cover different age groups and (c) it is precisely in the higher age groups that the number of teaching hours per week tends to be less than for lower age groups. For all these reasons, the Examination Board's differentiation between types of educational establishment cannot be regarded as inappropriate or beyond its scope of discretion.
7. Neither is the Examination Board misusing its discretion under Article 7(1)(a) of the Regulation in providing for decisions to be taken case by case if the candidate does not qualify for enrolment purely on the basis of the type of educational establishment attended. It may at first seem surprising, given the personal qualities of a particular candidate and any corroborative material which he may have produced to testify to his qualifications, that the decision on his particular case also depends on an interview covering his basic scientific and technical knowledge. But even in such cases it is not inappropriate to require, in principle, that any candidate must attend an interview whose educational background, as assessed by differentiating between educational establishments, fails to satisfy the conditions for enrolment.
8. Finally, the Examination Board's decision not to consider, in place of an interview, the other means proposed by the appellant of corroborating his level of knowledge, cannot be faulted. The appellant is mistaken in taking means of satisfying the Board as required in Article 7(1)(a) of the Regulation to be the same as evidence within the meaning of Article 117 EPC. The former is necessarily a schematised, objectivised requirement to be satisfied uniformly by a large number of candidates. Besides, the other means proposed by the appellant (nature and intensiveness of professional experience and consistently effective work; confirmation of his level of knowledge by his firm; his own inventions) are only indirect indications that he possesses a sufficient level of scientific or technical knowledge. But such a conclusion is by no means automatic and could be regarded by other candidates as arbitrarily favouring the appellant. This particularly applies where the level of knowledge is confirmed by the employer. Article 7(1)(a) of the Regulation requires that the level of knowledge has to satisfy the Examination Board. Indirect corroboration of a candidate's level of knowledge in the form of confirmation by a third party must certainly be excluded if that third party has no objective point of comparison and is not in a wholly impartial position vis-à-vis the candidate.
ORDER
For these reasons, it is decided that:
The appeal against the decision of the Examination Board for the European Qualifying Examination for professional representatives before the European Patent Office dated 12 May 1981 is dismissed.