EQE appeal
How to File an Appeal Against the Results of the EQE
European Qualification Examination (EQE) 2024 results were published on 1st of July 2024. As a result, some of you might be really happy, some of you might feel quite frustrated. While LinkedIn is full of celebratory posts, some of might be carefully checking the Examiners’ Reports to see how your marks ended up just below the necessary 45 or 50 threshold.
As a patent attorney trainee, the EQE is a crucial milestone in your career. Passing the EQE is a prerequisite to becoming a fully qualified European Patent Attorney. However, as most candidates know, failure rates of up to 70% are unfortunately not uncommon in the EQE.
If you believe that your exam results do not reflect your true performance, you have the right to file an appeal if one of the following applies:
you got below 45 marks (fail) in a paper;
you got above 45 and below 50 marks (compensable fail); or
you got above 50 and below 55 marks (pass) but need at least 55 marks to compensate a paper marked as compensable fail.
Filing an appeal against the results of the EQE can be a daunting process, but with careful preparation and attention to detail, it is possible to overturn an unjust decision. This blog post attempts to provide guidance through the process of appealing against the results of the EQE.
Overview
In the following, when referring to an appeal, this includes the notice of appeal and the statement of grounds. Please further note that the details below about the appeal fee and submission process are based on the situation in 2023. Before submitting your appeal, make sure that they are still valid. The Examination Secretariat is very helpful and willing to answer any questions you may have, so do not hesitate to contact them.
The following are important references for your appeal. Make sure you are familiar with the terms and conditions:
Regulation on the European qualifying examination for professional representatives (REE)
Implementing provisions to the Regulation on the European qualifying examination (IPREE)
Case Law of the Boards of Appeal (V.C.2)
Time limit (Article 24(2) REE):
As set out in the REE, the appeal must be filed within 1 month of the date of notification of the decision.
Appeal fee (Rule 9 IPREE):
The appeal fee is 600% of the basic exam fee and must be paid within the period of 1 month specified above. In numbers, the appeal fee is currently EUR 1,200.
It is important to note that this single fee allows you to appeal the result of one paper up to and including all four papers!
It is also good to know that you can request a full refund of the appeal fee not only in the case that your appeal is considered justified (i.e., getting at least 1 more mark is enough) but also if you withdraw your appeal. This can be done up to in reaction to the preliminary opinion issued by the Disciplinary Board of Appeals (DBA), acting as second instance.
Next thing worth to mention is that you can request a reimbursement of the EQE enrolment and examination fees you will pay for those papers of next years EQE in case your appeal is not successful.
Steps to File an Appeal
Progress
When you receive the results and realize that not all the papers you wrote were accepted, it can be devastating at first. Although common sense tells you that this is not unlikely and that it has happened to other patent attorneys who are now very successful. Theoretically, you know that you should be celebrating the fact that you dared to take the exam, knowing that the failure rate was high, and that you might have passed at least some of the papers.
So, the first step is to take some time for yourself. Give yourself the first week to progress. Do something you've wanted to do for a while, and let the results sink in. Gather your strength for step two.
Review your Examination Paper(s) and Reports
Even if it's hard, don't put off step 2 for too long. On the second week, carefully review your examination paper(s) and the examiner’s report. Identify specific areas where you believe errors were made.
This is the hardest and most crucial part. In essence, you have to show that the decision is based on serious and obvious mistakes, which are so obvious that they can be established without a re-evaluation of the whole examination paper.
Obvious mistakes are the most promising grounds for an appeal. These include translation errors, deviations between the wording of the EN/DE/FR papers (I noticed this for example in Papers A and B of this year but do not know if it has been taken into account in the examiner reports) or the famous double penalization (i.e. getting marks deducted for something you have already been penalized for). You will find examples of successful appeals in the Case Law of the Boards of Appeal and by looking into other D-decisions of previous years.
However, another possibility that may lead to a successful appeal is that the examiner's report and the amount of marks deducted for part of your answer may make it very clear that there is a misinterpretation of your answer.
Please note that you can only rely on technical problems that occurred during your exam if you submitted a complaint on the day of the exam. You should have received feedback from the Examination Board by now. If you disagree with the Board's response to your complaint, your appeal must also demonstrate why this response is based on a serious and obvious error.
Define your Grounds of Appeal
Once you have identified possible attack points, define your grounds.
Pay Appeal Fee
If not paid via direct payment, keep in mind that it may take a while until the appeal fee arrives at the bank account of the EPO. However, failure to pay the fee on time will result in the appeal being deemed not filed. You may therefore wish to pay the fee prior as soon as you came to the conclusion that you have at least one ground of appeal.
Develop Statement of Grounds
The Statement of Grounds should comprehensively argue your case, including:
Identification of specific procedural or substantive errors.
References to specific parts of your examination paper.
Legal arguments and, if applicable, references to case law or guidelines.
File Appeal
The original signed appeal must send to the Examination Secretariat (European Patent Office, Examination Secretariat, 80298 Munich, Germany). However, in order to meet the 1-month time limit, it is usually acceptable to send the appeal by fax (+49 (0)89 2399-5140) if the original is received within a 2-week time limit.
I have heard of people going to the EPO in person to hand in their appeal at the mail room, but I would not recommend this as your appeal may get lost internally. Talking to the Secretary and announcing that you will be sending the original after the fax will let them know that you have sent something. And as mentioned before, the people from the Secretary are very kind and will send you a confirmation of your filing via fax and when the original is received.
Await Decision of Examination Board
Once submitted, the Board must consider your appeal within a further period of 1 month, i.e. by the end of the summer. The Board may uphold the original decision, amend it, or order a re-evaluation of your paper.
If the original decision is upheld, the appeal will be sent to the Disciplinary Board of Appeal (DBA). Usually, the Examination Board will not give reasons why your arguments were not followed. If reasons are given, do not be discouraged. The DBA will assess the case independently. You may also making a further submission in case the Examination Board provided reasons with which you not agree.
Await Decision of Disciplinary Board of Appeal (DBA)
As the members of the DBA are usually also members of the Enlarged Board of Appeal, it may take until the next year before you hear from them. In very rare cases, the appealed decision can be overturned by a direct decision of the DBA. Usually, the DBA issues a preliminary opinion together with the summons to oral proceedings.
The DBA's preliminary opinion may give you an idea of the grounds on which to focus your case at the oral proceedings. Alternatively, you may decide to withdraw your appeal and receive a refund of the appeal fee.
Final Tips
Be Specific and Detailed:
Clearly identify and explain each error you believe occurred. General complaints without specific evidence are unlikely to succeed.
Seek Professional Guidance:
Consider seeking the advice of a qualified European Patent Attorney experienced in EQE appeals to help you formulate your arguments and, in particular, to keep a cool head during the oral proceedings. While you certainly are very good at pleading your clients' cases, it is a different matter when you are personally involved.
Include Supporting Documentation:
Where possible, include references to examination guidelines, marking schemes, and relevant legal precedents.
Template
Sometimes it is difficult to find a starting point. The following template may thus be helpful:
European Patent Office
Examination Secretariat
80298 Munich
EEPReg: 123456
Notice of Appeal against the Decision of the Examination Board dated xx/yy/zz
Pursuant to Art. 24 REE, an Appeal is filed herewith against the Decision of the Examination Board dated xx/yy/zzz, according to which NAME (the Appellant) has not passed Paper X of the European Qualifying Examination (EQE) 2024 and has thus not passed the EQE 2024.
The appeal fee of EUR 1,200.00 pursuant to Rule 9 IPREE has already been paid by bank transfer on xx/yy/zz (purpose of payment: EQE Appeal, NAME, EEPReg: 123456). A copy of the payment receipt is attached hereto (Annex 1).
Requests
It is requested, as the Main Request, that the Examination Board rectifies its decision pursuant to Art. 24(3), first sentence REE, and awards Appellant’s Paper X at least the grade COMPENSABLE FAIL, thereby ideally awarding an overall PASS of the EQE 2024 to the Appellant.
In the event that the Main Request is found to be neither fully nor partially allowable, it is requested, as the 1st Auxiliary Request, that the appeal or the part not found allowable be remitted to the Disciplinary Board of Appeal (DBA) pursuant to Art. 24(3), second sentence REE, the impugned decision be set aside, and Appellant’s Paper X, be awarded at least the grade COMPENSABLE FAIL in a direct decision by the Board.
In the event that the 1st Auxiliary Request is found to be neither fully nor partially allowable, it is requested, as the 2nd Auxiliary Request, that the decision impugned be set aside and Appellant’s Paper X be remitted to the Examination Board for re-examination and that at least the grade COMPENSABLE FAIL be awarded to Appellant’s Paper X.
In the event that any of the Main Request, 1st Auxiliary Request and 2nd Auxiliary Request is found to be neither fully nor partially allowable, the arrangement of Oral Proceedings is requested, preferably in good time prior to March X, 2025 (i.e., the scheduled date of the EQE 2025).
Accelerated processing is requested irrespective of the outcome of the appeal proceedings.
In the event that any of the Main Request, 1st Auxiliary Request or 2nd Auxiliary Request is considered allowable, reimbursement of the appeal fee is requested pursuant to Art. 24(3) and 24(4) REE.
In the event that Appellant’s solution to Paper X is awarded at least the grade COMPENSABLE FAIL, reimbursement of the EQE enrolment and examination fees already paid by Appellant for Paper X of the EQE 2025 is requested due to lack of legal ground for the payment (D 2/17, item 4.2).
Grounds of Appeal
The impugned decision of the Examination Board is based on serious mistakes that are so obvious that they can be established without re-opening the marking procedure, since the evaluation is based on legally incorrect premises and/or obvious mistakes, which can be identified without a re-evaluation of the whole examination paper (D 1/92; D 13/02; D 7/05; D 6/07; D 7/07; D 2/14, D14/17; Case Law of the Boards of Appeal 2022, V-C, 2.6.3).
[Outline the grounds on which appeal is based, e.g. double penalisation, translation error in the EN/DE/FR version of the exam, technical issues etc.]
Statements of Grounds of Appeal
Provide detailed arguments on, e.g. double penalisation, translation error in the EN/DE/FR version of the exam, technical issues, cite specific errors and provide justifications for why your answers should be re-evaluated.
Examples for Enclosures:
Annex 1: Payment confirmation
Annex 2: Decision of the Examination Board dated xx/yy/zz
Annex 3: Transcript of the Appellant’s answer Paper X
This post was written by a lovely patent attorney who went through this fight after EQE 2023 (successfully) but prefers to stay anonymous. She wanted to support and help others by writing this detailed summary about the EQE appeal process.
Thank you for your contribution to the EQE Blog!