D 0002/82 (Activities at the national patent level) 22-04-1982
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Summary of Facts and Submissions
I. In its decision dated 10 March 1982, the Examination Board for the European Qualifying Examination of the European Patent Office rejected the enrolment of the appellant for the European Qualifying Examination. It based this decision on the fact that the candidate did not fulfil the condition of enrolment of four years of training, under the terms of Article 7(1)(b) of the "Regulation on the European Qualifying Examination for professional representatives before the European Patent Office" (OJ EPO 1978, 101; hereinafter: the Regulation). In the candidate's case, the required training period was reduced by ten months to three years and two months, since he was able to show that he had completed a training period of one calendar year with the German Patent Office/Federal Patent Court (hereinafter: training period with the German patent authorities), leading to admission to the Qualifying Examination for Patentanwälte (Communication of the Examination Board in OJ EPO 1980, 218, 221-5.4.3). The candidate was only able to show, however, that he had been professionally active, within the meaning of Article 7(1)(b) of the Regulation, for a total period of two years and eight months. The candidate's view, that his training period with the German patent authorities led not only to a reduction, under Article 8(2) of the Regulation, in the period of professional activity required under Article 7(1) of the Regulation, but also represented a period of professional activity within the meaning of Article 7(1) of the Regulation, did not correspond with the facts.
II. By letter of 22 March 1982, the appellant filed an appeal against this decision. He submitted that his training period with the German patent authorities could be taken into account under the terms of both Article 7(1)(b)(ii) and Article 8(2) of the Regulation. The mentioned training period could, first of all, be equated with a period of professional activity within the meaning of Article 7(1)(b)(ii) of the Regulation. Furthermore, it led to a reduction in the four-year period of professional activity required under Article 7. The wording of Article 7(1)(b)(ii) of the Regulation did not rule this out. The taking into account of the training period with the German patent authorities was, he claimed, also justified by the underlying intent of that provision, since intensive and high-quality training was involved.
III. In the oral proceedings of 22 April 1982, the appellant pointed out that in principle it was possible to take into account specialised training courses under both Article 7(1)(b)(ii) and Article 8(2) of the Regulation. A particular activity could both be a training period within the meaning of Article 7(1)(b) of the Regulation, and also, as an advanced specialised training course, have the effect of reducing the required period of professional activity as a whole. Crediting of a specialised training course, within the meaning of Article 8(2) of the Regulation, as a training period within the meaning of Article 7(1)(b) of the Regulation could, in any event, be justified where the nature of the specialised training course is such that it can be regarded as at least the equivalent by way of preparation for the European Qualifying Examination as the training periods under Article 7(1)(b) of the Regulation. Such crediting was necessary, at least in part, where the specialised training course is a compulsory precondition for a national patent agent examination or leads to a qualification at the national level, like the one attainable with CEIPI in Strasbourg.
Otherwise, a candidate for the European Qualifying Examination who had already qualified at the national level, either compulsorily or voluntarily, would be at a disadvantage. Furthermore, having been admitted to the profession of professional representative at the national level, the candidate would find it difficult to make up the missing periods of professional activity within the meaning of Article 7(1)(b) of the Regulation.
IV. As regards the summary of facts, attention is also drawn to the files, particularly with respect to the facts which substantiate the admissibility of the appeal and with respect to the subsequent presentation of the appellant.
V. At the end of the oral proceedings, the appellant submitted the main request that the challenged decision be set aside and that he be admitted to the next European Qualifying Examination, and the alternative request that his activity with the German patent authorities be recognised, at least in part, as an activity under the terms of Article 7(1)(b)(ii) or (iii) of the Regulation, even if this did not in itself lead to his enrolment for the next examination.
Reasons for the Decision
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. The Disciplinary Board of Appeal is responsible, under the terms of Article 23(1) and (3) of the Regulation, for examining whether, as a result of decisions by the Examination Board, the Regulation on the European Qualifying Examination for professional representatives before the EPO has been infringed. The sole matter to be decided on in this case is whether the period of training with the German patent authorities - apart from being taken into account under the terms of Article 8(2) of the Regulation - can also be considered as a period of professional activity within the meaning of Article 7(1)(b)(ii) of the Regulation.
3. By its wording, Article 7(1)(b) of the Regulation takes as a basis that the employee acts "before the Patent Office" in "activities pertaining to ... patent applications and patents". By means of this wording and the reference to Articles 134(1) and 133(3) EPC, the point is made that this activity is intended to be in the capacity of petitioning agent before the Patent Office, particularly in the capacity of applicant or opponent. The wording does not, therefore, address activities internal to patent offices or patent courts. Thus, activities in the capacity of adjudicating agent cannot readily be considered as activities within the meaning of Article 7(1)(b)(ii) of the Regulation.
4. Even the underlying intent of Article 7(1)(b)(ii) of the Regulation cannot be interpreted in such a way that the training period with the German patent authorities can be considered as an activity within the meaning of this provision. Article 7(1)(b) of the Regulation contains a definitive list of activities which correspond to those of assistants to professional representatives (Article 134 EPC - Case i), those of authorised employees (Article 133(3) EPC - Case ii), or those of assistants to the latter (Case iii). These are the activities which the appellant aspires to as a profession and for which the European Qualifying Examination is a qualification and, in the case of freelance activity, even a prerequisite. The activities mentioned differ significantly from the activities within the patent offices and patent courts; they are the activities of petitioning agent, not those of an adjudicating agent. However necessary training and experience in offices and courts may be for the future representatives of the petitioners, it cannot be a substitute for training and experience in the capacity of petitioning agent, in particular that of patent applicant and opponent. This applies all the more since offices and courts are quite unable to provide much of the information and experience required in these professions. An interpretation of the underlying intent of Article 7(1)(b) of the Regulation, therefore, leaves no doubt that only activities in the capacity of petitioning agent are here addressed.
5. For these reasons, consideration of the training period with the German patent authorities as an activity within the meaning of Article 7(1)(b)(ii) or (iii) of the Regulation appears to be excluded. It is not therefore a question of assessing the quality of the training period with the German patent authorities.
6. Since a training period within patent offices or patent courts cannot, by its very nature, be acknowledged as activity within the meaning of Article 7(1)(b)(ii) or (iii) of the Regulation, partial recognition within the meaning of the alternative request is also not possible. It may be true that candidates for the European Qualifying Examination who do not require the national qualifications are in a more favourable position than those who spend, or have to spend, time, money and effort on specialised studies or specialised training courses within the meaning of Article 8(2) of the Regulation. If such a situation does exist, it becomes a matter of legislative policy to consider the situation thoroughly and, if necessary. to bring the Regulation more into line with it.
ORDER
For these reasons it is decided that:
The appeal against the decision of the Examination Board for the European Qualifying Examination of the European Patent Office dated 10 March 1982 is rejected.