Implementing provisions to the Regulation on the European qualifying examination
Originally published in OJ EPO 2024, A25:
The Supervisory Board,
Having regard to the Regulation on the European qualifying examination for professional representatives which enters into force on 1 January 2025 (OJ EPO 2024, A4), and in particular Article 3, paragraph 7, thereof, has decided as follows:
Rule 1
Applications for registration and enrolment
(1) For registration and enrolment, candidates must use the registration and enrolment forms published by the Examination Secretariat (hereinafter "the Secretariat").
(2) On the forms, candidates must state their surname, given name(s), address, date and place of birth, and nationality. Where applicable, the forms must be accompanied by originals or certified copies of:
(a) documents providing proof of identity
(b) evidence that the candidate possesses the qualification or equivalent level of scientific or technical knowledge required by Article 11(1)(a) of the Regulation on the European qualifying examination for professional representatives before the European Patent Office (hereinafter "the REE"), and
(c) a certificate or certificates issued by a professional representative, or by the candidate's employer, attesting to the completion of the period of training or employment in accordance with Article 11(2)(a) and (b)(i) or (ii) REE, indicating the nature and duration of the duties performed by the candidate, or
(d) a certificate issued by the European Patent Office (hereinafter "the EPO") attesting that the candidate has performed the duties of an examiner at the EPO in accordance with Article 11(2)(a) and (b)(iii) REE,
(e) evidence of circumstances which may give grounds for remission (Article 11(5) REE).
(3) Copies of the documents required under paragraph 2 above can be certified by a competent national authority in a contracting state to the European Patent Convention (hereinafter "contracting state") or by a professional representative before the EPO.
(4) Where appropriate, applications for enrolment must also state the language in which candidates wish to submit their answers in accordance with Rule 5(1).
(5) The Secretariat may request additional information.
Rule 2
Examination syllabus
(1) The examination syllabus referred to in Article 13 REE covers only those legal texts referred to in Article 13(1)(a) to (c) REE which are in force on 31 October of the year prior to the examination. The EPO case law referred to in Article 13(1)(d) REE is that covered in the latest edition of "Case Law of the Boards of Appeal of the European Patent Office" (hereinafter "the Case Law Book"), the case law referred to in any case law special edition of the Official Journal published after the latest edition of the Case Law Book, and any case law published in the Official Journal on or before 31 October of the year prior to the examination.
(2) The IP offices referred to in Article 13(2)(b) REE are those of Japan, the Republic of Korea, the People's Republic of China and the United States of America.
Rule 3
Marking
When marking answer papers, the members of the Examination Committees must bear in mind that candidates may have written their answers in a language other than their first language. Errors of grammar or style are therefore not penalised.
Rule 4
Marking sheets
(1) Pursuant to Article 8(1)(d) REE, details regarding the marking are to be entered on the marking sheets.
(2) The Secretariat will make available to candidates the marking sheets pertaining to their answer papers.
Rule 5
Languages
(1) Pursuant to Article 12(3) REE, candidates may, if they so request when enrolling for the examination, submit their answers in an official language of a contracting state which is not an official language of the EPO. The Secretariat will then arrange for a translation into one of the EPO official languages and submit it to the appropriate Examination Committee in addition to the original answer.
(2) The translation referred to in paragraph 1 does not entail any additional fee and may be prepared by the Institute of Professional Representatives before the EPO (hereinafter "the Institute").
Rule 6
Grades/passing the examination
(1) Each answer paper or part of an answer paper is marked by the relevant Examination Committee and/or by autoscoring on a scale determined by the Examination Board.
(2) With regard to
(a) foundation paper F as defined in Rule 22, each answer paper is marked by autoscoring.
(b) main examination papers M1 and M2 as defined in Rules 23 and 24 respectively, each answer paper is marked by two committee members separately and/or by autoscoring, with any free-text answer being marked by the committee members.
(c) main examination papers M3 and M4 as defined in Rules 25 and 26 respectively, each answer paper or part of an answer paper is marked by two committee members separately.
(3) Where, on the merits of an answer paper or part of an answer paper, and having regard to the applicable grade threshold for passing referred to in paragraph 6,
(a) the same or more marks than the threshold are awarded, a PASS grade is awarded for that paper or part, or
(b) fewer marks than the threshold are awarded, a FAIL grade is awarded for that paper or part.
(4) Candidates obtain a PASS grade in an examination paper if they have been awarded a PASS grade in all parts of this examination paper in one sitting.
(5) Subject to Article 14(2) REE and without prejudice to Rule 10(2) and (3) candidates are declared to have passed the examination once they have been awarded a PASS grade in all papers.
(6) Without prejudice to Articles 3(3) and 6(5) REE, the Examination Board determines the grade threshold for passing an examination paper or part of a paper.
(a) The Examination Board can determine the grade threshold for passing an examination paper or part of a paper within a range of:
(i) between 50% and 75% of the total achievable marks for papers F and M1, and
(ii) between 30% and 60% of the total achievable marks for papers M2, M3 and M4;
by considering the marks proposed by the Examination Committee for the paper or part in question.
(b) The criteria for determining the threshold take into account that the European qualifying examination is designed to establish whether candidates are qualified to practise as professional representatives before the EPO (Article 1(1) REE).
The criteria applied are published in the report referred to in Article 6(6) REE.
(c) Once three sessions of all examination papers have been completed, the Supervisory Board will review subparagraph (a) above.
Rule 7
Registration and enrolment fees
Pursuant to Articles 11(6) and 17 REE, the fee for each application for registration and enrolment is the basic fee.
Rule 8
Examination fees
Pursuant to Articles 16 and 17 REE, the fee for sitting each of the examination papers is the basic fee.
(a) The fee for re-sitting a paper for the first time is the basic fee.
(b) The fee for re-sitting a paper for the second time amounts to 150% of the basic fee.
(c) The fee for re-sitting a paper for the third time amounts to 200% of the basic fee.
(d) The fee for re-sitting a paper for the fourth and subsequent times amounts to 400% of the basic fee for each such re-sit.
Rule 9
Appeal fee
Pursuant to Article 24(2) REE, the appeal fee amounts to 600% of the basic fee.
Rule 10
Examination papers
(1) The examination consists of foundation paper F as defined in Article 1(5) REE and further specified in Rule 22, and the four main examination papers M1, M2, M3 and M4 as defined in Article 1(5) REE and further specified in Rules 23 to 26 respectively.
(2) Without prejudice to Rule 10(3), candidates who wish to be enrolled for any one or more of papers M1, M2, M3 and M4 must have obtained a PASS grade in, or be exempted from, paper F.
(3) After completing a three-year period of professional activity within the meaning of Article 11(2) REE, candidates enrolling for all of papers M1, M2, M3 and M4 in one sitting will be exempt from paper F. Unless a PASS grade is obtained in at least papers M1 and M2, or M2 and M3, they can re-sit any failed paper or papers only together with sitting paper F or after having sat paper F. If paper F has to be sat under the provisions of this paragraph, the re-sat main examination paper or papers will be marked only if a PASS grade in paper F has been obtained.
Rule 11
Qualification required
(1) Candidates are considered to have the necessary qualification required under Article 11(1)(a) REE if they possess at least a university-level scientific or technical bachelor's degree, or any equivalent academic degree, in one of the subjects defined in Rule 13 or any subjects equivalent to these, from a university, technical university, technical high school, vocational college, higher technical college or institute, school of engineering, or any similar establishment having at least the academic level of the aforementioned establishments, in one of the contracting states.
(2) The academic degree referred to in paragraph 1 must have been awarded at the end of a full-time course of a minimum duration of three years. At least 80% of the course hours taken to obtain this degree must have been devoted to scientific and/or technical subjects.
(3) If a candidate's qualification does not fulfil the requirements of paragraphs 1 and 2, Rule 14 applies.
Rule 12
Qualification from a non-contracting state
(1) Candidates possessing a degree, diploma or certificate from an educational establishment in a non-contracting state must satisfy the Secretariat that it is equivalent to a degree as mentioned in Rule 11.
(2) In the case referred to in paragraph 1, the Secretariat may require an official document from a competent authority in one of the contracting states attesting that the degree, diploma or certificate is equivalent to a degree as mentioned in Rule 11.
Rule 13
Qualification subject-matter
The scientific and/or technical subjects referred to in Rule 11 include biology, biochemistry, chemistry, construction technology, electricity, electronics, information technology, mathematics, mechanics, medicine, pharmacology and physics.
Rule 14
Equivalent knowledge
If candidates are not able to prove that they meet the conditions referred to in Rules 11, 12 and 13, they may nevertheless be considered to possess an equivalent level of scientific and/or technical knowledge if they can establish that they have at least ten years' experience in the professional activities defined in Article 11(2)(b)(i) or (ii) REE.
Rule 15
Professional activities
(1) The professional activities referred to in Article 11(2)(b)(i) or (ii) REE must be completed in one or more of the contracting states.
(2) Only professional activities amounting to a minimum period of three months with at least 50% part-time involvement will be considered for the purposes of Article 11(3) REE.
Rule 16
Remission
(1)(a) An academic institution located in one of the contracting states may request that candidates who have successfully completed specialised studies in the field of industrial property at that institution be granted a reduction of six months in the duration of the period of professional activity defined in Article 11(2) REE. Such requests must be submitted to the Secretariat before completion of the academic year in question and decided upon by the Examination Board on the basis of the following criteria:
(i) the duration of the studies is at least one full-time academic year,
(ii) the curriculum and a description of the content of the studies are available to the public; these documents must be submitted to the Secretariat,
(iii) the number of hours devoted to each subject can be derived from the curriculum,
(iv) the curriculum indicates which subjects are mandatory and lists the criteria for selecting other subjects,
(v) on request, all the course material must be submitted to the Secretariat,
(vi) at least 600 course hours are devoted to intellectual property,
(vii) of the 600 course hours mentioned under (vi), at least 350 are devoted to patent matters,
(viii) of the 350 course hours mentioned under (vii), at least 130 are devoted to European patent law as laid down in the EPC and to the Patent Cooperation Treaty (hereinafter "the PCT"),
(ix) of the 600 course hours mentioned under (vi), at least 175 are given by professional representatives before the EPO.
(b) If the Examination Board grants a request under (a), that decision will be valid only for the academic year in respect of which the request was made and will apply only to candidates who request a reduction on the basis of that decision and are able to show that they successfully completed their studies in that academic year at the academic institution in question.
(2) The Secretariat may grant a reduction of up to one year in the periods of professional activity defined in Article 11(2)(a) in conjunction with (b)(i) or (ii) REE to candidates who have been patent examiners with the EPO or one of the national patent offices of the contracting states. Only periods amounting to a minimum of one year with at least 50% part-time involvement will be considered. The reduction must not exceed 25% of the recognised period of activity as a patent examiner.
(3) Candidates who have completed the eight months' training with the German patent authorities and have been admitted to sit the qualifying examination for German patent attorneys will be granted a reduction of six months. This eight months' training with the German patent authorities does not constitute a period of professional activity as defined in Article 11(2) REE.
(4) The period of professional activity under Article 11(2) REE and the periods under paragraphs 1, 2 and 3 of this rule must not overlap.
Rule 17
Disabled candidates
(1) Disabled candidates are those who can prove that they have a disability severely affecting their capacity to participate in the examination as set up for all other candidates.
(2) Any such candidate must provide appropriate evidence issued by the competent national health service.
(3) Depending on the severity and degree of the disability, the Secretariat may allow the candidates to participate in the examination under conditions which compensate as far as possible for the consequences of their disability in respect of those examinations. Additional time for writing the papers, personal assistance or other logistical or technical support may be accorded as appropriate depending on the circumstances of a particular case.
Rule 18
Invigilation
(1) Subject to paragraph 3 below, invigilators are normally members of the Examination Board or the Examination Committees.
(2) For the conduct of the examination, the Secretariat appoints a chief invigilator and a deputy invigilator from among the members of the Examination Board, the Examination Committees or the Secretariat.
(3) The Secretariat may nominate other invigilators.
Rule 19
Conduct of the examination
(1) If a candidate fails to comply with the instructions to candidates concerning the conduct of the examination or with instructions given by the invigilators on that basis, the following measures may be taken by the Examination Board in respect of that candidate:
(a) deduction of marks
(b) instructions to the competent Examination Committee to mark the answer paper concerned only in part
(c) instructions to the competent Examination Committee not to mark the answer paper concerned and not to award any marks, and/or
(d) disqualification from the examination for a given year.
The Examination Board will take a decision on the matter as soon as possible after the examination.
(2) If a candidate acts detrimentally to the integrity of the examination, the chief invigilator may suspend that candidate at once from the paper during which this occurs. The chief invigilator will then send the Examination Board a comprehensive report including any evidence. The Examination Board will take a decision on the matter as soon as possible.
(3) Complaints made by a candidate concerning the conduct of the examination are not entertained by the Examination Board unless a written statement of the facts is submitted in accordance with the instructions to candidates at the latest on the day after the examination paper in question.
(4) Any decision taken by the Examination Board pursuant to this rule must be based upon all the available evidence, reasoned and issued in writing.
Rule 20
Fraudulent behaviour
(1) Fraudulent behaviour is any behaviour by a candidate with the aim of obtaining an undue advantage during registration/enrolment or during/after the examination. Such behaviour may consist, inter alia, in presenting false documents, making false or incomplete statements and/or using unauthorised equipment during the examination.
(2) The following measures may be taken by the Examination Board if fraudulent behaviour has been discovered:
(a) refusal of registration and/or enrolment for the forthcoming and subsequent examinations
(b) deduction of marks
(c) instructions to the competent Examination Committee to mark the answer paper concerned only in part
(d) instructions to the competent Examination Committee not to mark the answer paper concerned and not to award any marks, and/or
(e) disqualification from the examination for a given year.
(3) The Examination Board will take a decision on the matter as soon as possible after the fraudulent behaviour has been discovered.
(4) Any decision taken by the Examination Board pursuant to this rule must be based upon all the available evidence, reasoned and issued in writing.
Rule 21
General instructions for answering the papers
(1) Unless otherwise provided, candidates are expected to be familiar with at least the following documents in the versions valid as at 31 October of the year prior to the examination:
(a) the EPC
(b) the Implementing Regulations to the EPC
(c) the Protocol on the Centralisation of the European Patent System and on its Introduction (Protocol on Centralisation)
(d) the Protocol on Jurisdiction and the Recognition of Decisions in respect of the Right to the Grant of a European Patent (Protocol on Recognition)
(e) the Rules relating to Fees
(f) the notice of the President of the EPO concerning the arrangements for deposit accounts
(g) the PCT
(h) the Regulations under the PCT
(i) the PCT Applicant's Guide
(j) the Paris Convention for the Protection of Industrial Property
(k) the lists of EPC contracting states, extension states and validation states, of contracting states to the PCT and of states which have ratified the Agreement on a Unified Patent Court
(l) National law relating to the EPC, as published by the EPO
(m) the Guidelines for Examination in the EPO
(n) the content of the Official Journal of the EPO
(o) the Guidelines for Search and Examination at the EPO as PCT Authority
(p) National measures relating to the Unitary Patent, as published by the EPO
(q) the following regulations relating to the Unified Patent Court:
- Articles 1 to 4, 24 to 34, 47, 48, 66, 83 and 89 of the Agreement on a Unified Patent Court;
- Rules 5, 5A and 85 to 98 of the Rules of Procedure of the Unified Patent Court
(r) the Case Law Book, as defined in Rule 2
(s) Code of Conduct of the Institute of Professional Representatives before the European Patent Office
(t) Regulation on discipline for professional representatives.
(2) It will be assumed that candidates have read the examination paper in the language in which they give their answer. Candidates who give their answer in a language other than one of the EPO official languages in accordance with Rule 5(1) must indicate in their answer paper which language version of the examination paper they read.
(3) Candidates must accept the facts given in the examination paper and limit themselves to those facts. Whether and to what extent those facts are used is the responsibility of each candidate. Candidates must not use any special knowledge they may have of the technical field of the invention.
Rule 22
Foundation paper (Paper F)
(1) The competences tested in paper F concern declarative knowledge. Paper F is defined in Article 1(5)(a) REE.
(2) Part 1 assesses whether candidates can understand the procedural requirements and steps in EPC proceedings and PCT proceedings. Part 1 lasts two hours.
(3) Part 2 assesses whether candidates can interpret the claims and assess the compliance of the claims and of the invention to which they pertain with the provisions of the EPC, and whether they can assess the compliance of proposed amendments with the provisions of the EPC. Part 2 lasts two hours.
(4) Paper F may comprise different types of questions, such as multiple-choice questions, multi-select questions, true or false questions, drag and drop questions, questions requiring a fill-in answer and/or questions requiring highlighting of relevant text passages.
(5) Candidates are expected to be familiar with at least the documents listed in Rule 21(1)(a), (b), (e), (g), (h), (i), (j), (m) and (o).
Rule 23
Content of the examination – Assessment of information and client instructions (Paper M1)
(1) Paper M1 is defined in Article 1(5)(b) REE.
(2) Paper M1 lasts three hours in total and consists of two parts, each lasting 90 minutes. Each part may contain one or more tasks.
(3) Paper M1 may comprise different types of questions, such as multiple-choice questions, multi-select questions, tabular questions, questions requiring a fill-in answer, dropdown menu questions, rating choice/rank order questions, multi-point scale matrix questions and/or drag and drop questions, as well as open questions requiring a free-text answer.
(4) Candidates are expected to be familiar with at least the documents listed in Rule 21(1)(a), (b), (e), (g), (h), (i), (j), (k), (m), (o), (s) and (t).
Rule 24
Content of the examination – Mastering procedural patent law (Paper M2)
(1) Paper M2 is defined in Article 1(5)(c) REE.
(2) The procedures and procedural law established by the EPC and the PCT as defined in Article (1)(5)(c) REE include the procedural laws of the EPC contracting states, extension states and validation states and those applied by the IP offices referred to in Article 13(2) REE and Rule 2(2). Candidates are expected to be able to identify and apply all procedural options available in a certain situation and to provide the client with suitable recommendations and the legal bases for them.
(3) Paper M2 lasts between 2.5 hours and 3 hours in total and consists of two parts. Part 1 of paper M2 lasts no more than 90 minutes and comprises various types of questions, such as multiple-choice questions, multi-select questions, tabular questions, questions requiring a fill-in answer, dropdown menu questions, rating choice/rank order questions, multi-point scale matrix questions, and/or drag and drop questions. Part 2 of paper M2 lasts no more than 90 minutes and comprises open questions requiring a free-text answer.
(4) Candidates are expected to be familiar with at least the documents listed in Rule 21(1).
Rule 25
Content of the examination – Drafting patent documentation and reasoning points of law and technique (Paper M3)
(1) Paper M3 is defined in Article 1(5)(d) REE.
(2) Part 1 of paper M3 requires candidates to draft claims, based on documentation provided to them; they are expected to draft an independent and dependent claim or claims which offer the applicant the broadest possible protection under the EPC. Candidates are also expected to draft the introductory part of a patent application, including at least defining the subject-matter, the technical problem and the solution.
(3) Part 2 of paper M3 requires candidates to develop and present arguments showing why the invention and the application or patent comply with the requirements of the EPC or the PCT, and to amend claims if necessary. Candidates are expected to put forward suitable arguments and, where appropriate, propose any amendments, with a view to ensuring the broadest possible protection under the EPC or the PCT, taking account of the relevant stage of proceedings.
(4) Part 3 of paper M3 requires candidates to develop and present arguments showing why the invention and the application or patent does not comply with the requirements of the EPC or PCT. They are expected to challenge a European patent, European patent application or an international application.
(5) Paper M3 lasts 7.5 hours in total and consists of three parts, each lasting between two and three hours.
All three parts require candidates to give free-text answers based on relevant documentation and to draft or amend patent documents and/or a submission to be filed with the EPO or WIPO.
(6) Candidates are expected to be familiar with at least the documents listed in Rule 21(1).
Rule 26
Content of the examination – Advising the client (Paper M4)
(1) Paper M4 is defined in Article 1(5)(e) REE. Candidates are expected to reason, present and manage advanced procedural and substantive aspects of patent law.
(2) Paper M4 further assesses whether candidates can apply the EPC, the PCT, the Paris Convention, legislation relating to the European patent with unitary effect and the procedural laws of the EPC contracting states, extension states and validation states and those applied by the IP offices referred to in Article 13(2) REE and Rule 2(2) in complex situations, while handling a patent portfolio, analysing the situation and providing the client with strategic advice. Candidates are expected to use the opinion they draft to explain the legal consequences of the situation described. They are also expected to demonstrate their ability to deal with a complex industrial-property law case involving fundamental issues of patentability, rights of inventors, inventions as property and third-party rights.
(3) Paper M4 lasts between 2 and 2.5 hours in total and consists of one or more tasks.
(4) Candidates are expected to be familiar with at least the documents listed in Rule 21(1).
Rule 27
Composition and number of Examination Committees
(1) The proportion of Examination Committee members from the EPO and from the Institute as specified in Article 7(3) REE may vary, but at least 50% of the members of any Examination Committee must be from the Institute.
(2) Pursuant to Articles 3(1) and 8 REE, five Examination Committees are established for the examination:
(a) Examination Committee I is in charge of paper M3;
(b) Examination Committee II is in charge of paper M1;
(c) Examination Committee III is in charge of papers M2 and M4;
(d) Examination Committee IV is in charge of paper F.
(e) Examination Committee V is responsible for the quality management of the papers and advises the other Examination Committees in this respect.
(3) A member of an Examination Committee can be a member of more than one Examination Committee.
Rule 28
Registration
(1) In accordance with Article 11(1) REE, candidates intending to enrol for the European qualifying examination for the first time must register once they have started a professional activity within the meaning of Article 11(2) REE.
(2) The fee for registration becomes applicable as from a date to be determined by the Supervisory Board.
Rule 29
Entry into force and application date
These Implementing Provisions
(1) enter into force on 1 January 2025,
(2) replace, unless otherwise provided, the Implementing Provisions as adopted on 13 December 2018 and apply to European qualifying examinations as set out in Article 27(2) REE. Papers that remain governed by the Regulation of 2009 under Article 27(2) REE remain governed by the IPREE of 2018.
Done at Munich, 26 January 2024
For the Supervisory Board
The Chairman
Michael LIEBETANZ