D 0012/82 (Marking instructions) 24-02-1983
1. The general instructions for marking candidates' answers issued by the Examination Board for the European Qualifying Examination under Article 12(1) of the Regulation on the European Qualifying Examination for professional representatives and the prescribed system of marking ensure uniformity of marking as required by that Regulation.
2. The right to inspect the files does not support a claim to greater transparency in the marking process than that afforded by perusal of the marking instructions and their application in the marking of answers.
3. Like any other new system, the marking system is not perfect. The uniformity and transparency of marking could be improved, for instance, so as to convey to the unsuccessful candidate more clearly why he has failed. However, he has no right to this, especially as the examination is not intended to be an instrument of training and thus for cost reasons alone wishes of this nature can only e accommodated to a limited extent.
Instructions to ensure uniformity of marking
Inspections of files
File content
Transparency
Summary of Facts and Submissions
I. The contested decision is that of 12 October 1982 of the Examination Board for the European Qualifying Examination at the European Patent Office, and which found that the appellant had failed the third European Qualifying Examination, held in 1982. In accordance with Rule 78 EPC, the decision was sent to the appellant by registered mail on 12 October 1982. The appeal, together with a short Statement of Grounds, was received by the EPO on 4 November 1982.
The appellant argued in writing, and orally at the hearing on 24 February 1983, that the Examination Board "had not ensured that the papers of all candidates were marked in accordance with the same criteria." In Paper A, for example, there had been a total of 22 marks available for "scope of protection", in Paper B 20 possible marks for "claims". The candidate could fall well short of these maximum possible marks without finding out in what respects his performance was considered deficient. In Paper C (drawing up an opposition document) there had been for example a total of 5 points available for formalities, and 35 for legal aspects. This kind of question lent itself ideally to identifying in greater detail deficiencies in a candidate's performance. The marking system used thus failed to ensure uniformity of marking. Nor did it provide the transparency needed if the unsuccessful candidate's right of inspection of the files was to have any point. Nor too, because of the insufficiency of the information provided by the marking sheet, could the unsuccessful candidate receive any details of what he could improve on in retaking the examination.
II. The appellant requested that the contested decision be set aside, and that the matter be referred back to the Examination Board with the instruction that all the papers be re-checked on the basis of concrete guidelines.
Reasons for the Decision
1. The appeal meets the requirements of Article 23(2) of the Regulation on the European Qualifying Examination for professional representatives before the European Patent Office (OJ EPO 1978, p. 101 - hereinafter the "Regulation") and is, therefore, admissible.
2. The appellant complains that the marking system is not in accordance with Article 12(1) of the Regulation, which requires that the Board's instructions ensure uniformity of marking of candidate's papers. These instructions consist inter alia of general "Instructions to the Examination Committees regarding the marking scheme", which set out the principles for marking, explanations of the different grades 1 to 7 and instructions for awarding grades.
For each paper, these grades are determined by marks, i.e. a given total of marks for a particular subject corresponds to a given grade. There are also marking schedules on the marking sheets, breaking down the total marks available for the paper into sub-totals for particular aspects of the answer. In Paper D II (individual questions), specific marks are obtainable for answering each question.
3. Having examined the system itself as well as its application to individual candidates, the Board of Appeal has concluded that this system adequately ensures uniformity of marking both within each Examination Committee and amongst the individual Examination Committees. Uniformity of marking within the meaning of Article 12(1) of the Regulation is ensured even if the marking breakdown leaves a certain discretionary margin. Uniformity does not mean a mechanical system producing absolute equality of marks.
There can be no such uniformity, since a paper cannot be reduced numerically like a mathematical problem and marked objectively point by point as right or wrong, but answers may be correct or incorrect in very individual ways. Uniformity of marking thus in fact dictates that each examiner have some discretionary margin, as individual performance cannot be fairly marked if the marking scheme used is too structured and thus excessively rigid. Uniformity of marking within the meaning of Article 12(1) thus cannot mean that an individual assessment of a particular paper is completely ruled out, but requires that it be possible within certain limits. As the examiner does not know the identity of the candidate, and is marking an anonymous paper bearing an identification number, this individual assessment is performed without regard to the identity of the candidate being marked.
4. Nor is the appellant correct in arguing that the admitted right of inspection of the files also comprises a right to complete disclosure of the marking process. Inspection of the files should and must show only whether and how the instructions within the meaning of Article 12(1) of the Regulation, which include the marking schedules on the marking sheets, were applied to the answer papers of the candidate in question. The latter should be able to check that the individual marks, the way they have been harmonised and the overall grade are consistent. Contrary to the view taken by the appellant, this was the case in the third European Qualifying Examination in 1982 as regards the marking instructions and the marking schedule and no irregularities are evident, or indeed claimed by the applicant, in the way these were applied to his answer papers.
5. The appellant's contention that the right to inspect the files is thwarted if the copies of the answer papers returned by the examiners bear no trace of marking is only justified under certain conditions. Such copies need not be returned because a marking system using marking sheets has now been introduced and the marks are entered on the sheets. Under such a system, it is sufficient for the examiner to record his conclusions on the marking sheet and to give further information if in the individual circumstances this could be expected by the other examiners or the Examination Committee or if such information seems necessary to enable the candidate and, where applicable, the Board of Appeal to check the marking within the limits set out herein.
6. The Board endorses the appellant's criticism of the marking system only insofar as improvements could and should be made. Such is the case, for example, where (as cited in the appellant's submissions above) large chunks of marks are awarded or withheld without any comment or where (as in Paper D-II) there is a considerable gap between the marks obtainable and those actually awarded and nothing is entered in the "comments" column. Though it may be desirable, the candidate does not have a right to greater transparency so as to afford him a clearer indication of where and how he went wrong. He therefore cannot have this wish acceded to with the help of the Board of Appeal. There are limits to the feasibility of responding to such wishes, if only for reasons of expense, and it must be remembered that the costs of the examination are considerably higher than the proceeds of enrolment fees. The purpose of the European Qualifying Examination is to establish that a person is qualified and not to provide him with the requisite training, though failure may fulfil an educative function. The Board of Appeal accordingly cannot criticise the Examination Board for treating the examination system mainly as an instrument for establishing that the candidate is qualified, thus acting with an eye to the cost, provided it does not thereby infringe the Regulation and higher-ranking law (regarding the Board of Appeal's competence to review decisions, see also its Decisions D 01/81 dated 4 February 1982 in OJ EPO 1982, p. 258 and D 05/82 dated 15 December 1982, OJ EPO 1983, p. 175).
ORDER
For these reasons, it is decided that:
The appeal against the decision of the Examination Board for the European Qualifying Examination dated 12 October 1982 is dismissed.