D 0054/21 25-04-2022

Reasons for the Decision

1. The appeal is admissible.

2. The decision can be taken in written proceedings. The appellant requested oral proceedings on an auxiliary basis, i.e. in the event that the Disciplinary Board of appeal intended to dismiss the appeal. As the appeal is not dismissed for the reasons given below, it was not necessary to hold oral proceedings.

3. In accordance with Article 24(1) REE and the established jurisprudence of the Disciplinary Board of Appeal (following D 1/92, OJ EPO 1993, 357), 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. It is not the function of the Board to reconsider the entire examination procedure on the merits. Only if the appellant can show that the contested decision is based on serious and obvious mistakes can the Board take this into account. The alleged mistake must be so obvious that it can be established without re-opening the entire marking procedure.

Unrewarded solution elements

4. As far as the appellant contends in his various letters filed during the appeal proceedings that his answers were either almost identical or even more detailed when compared to the model solution or would at least be equivalent to the solutions provided in the Examiners' Report the appeal is without success. With regard to each individual contention the Board would not only have to perform a detailed technical analysis of the facts and features in the opposed patent and their relevance in respect of the respective documents representing the relevant state of the art according to the appellant, as well as of the communication pursuant to Article 94(3) EPC, the client's letter and the third party observation. The Board would also have to evaluate whether the appellant's arguments and proposals deviating from those in the Examiners' Report could be regarded as equivalent technical and reasonable solution and equally valid for the assessment of the aforementioned requirements under the EPC which had then to be awarded a certain amount of marks as requested by the appellant. However, it is not the function of the DBA to reconsider the entire examination procedure on the merits, what would be necessary in order to evaluate and conclude whether a sufficient amount of marks were to be awarded for a "PASS" grade or whether a definite amount of marks could be awarded in view of Rule 6(4)c) IPREE. Thus, examining these arguments put forward by the appellant would clearly be an exercise which could not be done without making a value judgement, which is not a function of the DBA.

5. In this context the Board notes that candidates cannot expect that they will be awarded the full marks for certain partial solutions under any circumstances, even if these are doubtless correct on their own. According to Rule 24 IPREE, in the Paper B part of the EQE candidates are expected to respond to all points raised in the official communication and to provide amended claims that meet the requirements of the EPC, i.e. all requirements of the EPC. Thus answering Paper B cannot be reduced to the simple exercise of collecting marks for certain solution elements that are derivable from the Examiners' Report. It is also required that the totality of the claims and the corresponding arguments constitute a complete and in itself consistent solution.

Paper B in previous examinations

6. A comparison of Paper B 2021 with Papers B in previous EQE cannot be regarded as a suitable and reasonable basis for the evaluation of the allowability of an appeal filed against the awarding of marks regarding Paper B 2021. In this respect it is irrelevant for the present appeal whether Paper B 2021 did have "the same syllabus and character as before" or whether in Paper B examinations of 2014 to 2019 the candidates were much less penalized by reduction of marks. Rather, each annual examination, e.g. Paper B, has to be regarded and assessed separately and on its own, since the technical and legal facts as well as the factual circumstances and conditions underlying the EQE vary each year and hence do not allow a valid and reasonable comparison. However, what is decisive in this regard is, that the conditions were equal for all candidates taking part in the EQE 2021, so that no candidate was disadvantaged in comparison to other candidates in the examination 2021 by the scope, conditions underlying the EQE and the marking system applied for Paper B 2021. The difficulty, the extent of documents and the technical conditions underlying the examination as well as the marking scheme in the EQE in previous years do not affect or influence the assessment, in particular the awarding of marks of Paper B 2021, even if assuming that the previous Paper B examinations actually did not have "the same syllabus and character" compared to Paper B 2021 as alleged by the appellant.

Potential effects of the "housefly eggs" amendment

7. In Paper B 2021, candidates were expected to prepare a claim set comprising three independent claims, namely a device claim directed to a waste composting container, a method claim directed to a method of producing a fertilizer from composted waste with the help of a composting container, and a further method claim in the form of a computer-implemented calculation method for use in a composting process. The client's letter (Rule 24(2) IPREE) expressed the wish of the client to replace the term worms/earthworms with "earthworms (8) and/or housefly eggs (8a)".

8. According to the Examiners' Report, accepting these suggested amendments of the client – in the following the "housefly eggs" amendment - was an error. If a candidate kept these amendments, various deductions resulted. The potential deductions caused by the amendment could affect the marks for the claims and the amendment arguments as well (points 3 and 5.2 of the Examiners' report). All claims, except claim 1 could lose all marks, and all marks for amendment arguments could also be lost. In this manner claim 1 could lose 4 marks on the "housefly eggs" amendment while claim 5 could lose 9 marks.

Double penalty was not excluded by the marking scheme

9. The Examiners' Report does not draw the attention of the Examiners to the problem of double penalty (unlike the Examiners' Report for Paper B 2019), and even less is there any explicit instruction to avoid it. The fact that all marks (9) are lost for the "housefly eggs" amendment in claim 5, as opposed to only 4 marks in claim 1 does not seem to lead to the conclusion that the mentioning of the "housefly eggs" deduction in claim 5 is in fact a mere reminder of the previous deduction for this feature as specified for claim 1. On the contrary, it suggests that both of these deductions must be made, independent from the other. The same conclusion seems to hold when comparing the potential deductions for the amendment arguments for claims 1 and 5. Thus the Board recognises that double penalty was not excluded by the marking scheme. At least the same error in claim 1 and claim 5 could be penalised, although the error – the inadmissible "housefly eggs" amendment under Article 123(2) EPC – was effectively the same. This error was also made by the appellant both in claim 1 and claim 5, so that the double penalty also affected his answer paper. The Board holds that the paper B deserves a re-marking in view of this double penalty.

10. The Board can establish directly from the appealed decision that the appellant obtained 5/5 marks for his independent claims, 0/0 marks for the dependent claims and 2/2 marks for his amendments arguments by the respective markers. A cursory review of his claims confirm that the argued correct solution elements are present in his answer paper. In view of these details the Board finds it plausible that the total marks awarded were decisively influenced by the marking of the "housefly eggs" amendment, without directly accepting the argued amount of the marks possibly lost due to the "housefly eggs" amendment. Given that a possible unfair marking could not be excluded by the Board, the Board finds, giving the appellant the benefit of the doubt, that the appeal is well founded and allowable so that the contested decision is to be set aside according to Article 24(4), second sentence, REE. The Board holds that a new evaluation of the appellant's answer paper B is justified.

Erroneous paper and unequal treatment

11. It is settled case law of the DBA that equal treatment of candidates is an issue which may be the subject of appeals under Article 24(1) REE (see the recent decision D 0008/21, point 10.2 of the Reasons and the cases cited). The principle of equal treatment requires that candidates should take part in the examination under equal conditions. Thus it follows from this principle of equal treatment that unequal conditions which may cause unjustified disadvantages for candidates should be compensated, to the extent feasible. It is an undisputed fact that there had been a mark-up error in the examination paper. This is apparent when comparing the English and French versions of the Paper B 2021, page 24. The amended claim 5 as suggested by the client contains an amendment as compared with the originally filed claims. The client inserted the feature "by spraying water on said refuse", among other amendments made. All amendments made by the client were highlighted with bold, except this amendment. The error meant that an instruction of the client was easily overlooked, namely the addition of the feature "by spraying water on said refuse". While it may not be quite clear from the Examiners' Report how the leaving out this feature may have been penalised exactly by the marking scheme, it is clear that the feature was an expected feature (point 3.2 of the Examiners' Report), so it is safe to assume that marks were deducted if the feature was missing.

12. The Board finds the appellant's arguments plausible that this error was difficult to discover under the circumstances of the online examination, and even if discovered, the candidates were faced with a confusing set of facts. On this basis, the Board accepts that this difference between the French and the English version may have had a significant impact on the answer paper of a candidate, and in this manner candidates writing the French and English versions had to write the Paper B 2021 under different conditions. The Board considers that these different conditions amount to an unequal treatment of the candidates. Such unequal treatment deserves some form of compensation, but such is not apparent from the Examiners' Report or the marking of the candidate. In this regard the Board refers to decision D 0008/21, points 10.1 to 10.3 and point 12.1 of the Reasons. The Board explicitly endorses these reasons of D 0008/21 and agrees with the conclusion stated in point 12.1 that the unequal treatment must be compensated.

Request for re-marking and award of grade

13. The appellant further requests that his answer paper be awarded a PASS with at least 56 marks. With the award of 56 marks for Paper B the appellant would have satisfied all of the conditions for passing the examination according to Rule 6(4)a), b) and c) IPREE. The Board follows the case law of the DBA (see e.g. decisions D 0024/17, point 15 of the Reasons, D 0013/17 and D 0016/17, point 4 of the Reasons) and considers that the Board itself in principle cannot perform the re-marking requested. An assessment of the appellant's answer paper for determining the marks to be awarded would be equivalent to a review of the marking on the merits and thus would require value judgments which, according to the established jurisprudence (following D 1/92, OJ EPO 1993, 357), falls outside the competence of the Board, as already stated above in points 3. And 4. Therefore, the Board decides to remit the case to the Examination Board with the order to instruct the competent Examination Committee to undertake a new marking of the appellant's Paper B of the European qualifying examination 2021 under its powers pursuant to Article 6(5), last sentence, REE and to award a grade to the appellant on the basis of the re-marking. The re-evaluation should be based on a marking scheme which is fairly proportional and avoids multiple penalties, according to the principles as set out in decision D 0022/21, point 16 of the Reasons. These principles are also supported by the present Board.

Reimbursement of the appeal fee

14. The appellant requested reimbursement of the appeal fee. If the Board of Appeal allows the appeal, it orders reimbursement in full or in part of the appeal fee if this is equitable in the circumstances of the case (Article 24(4), third sentence, REE). Given that the present appeal is successful, a full reimbursement of the appeal fee is equitable. Therefore, the appeal fee is to be reimbursed in full.