Monday, 7 April 2014

Discussion of answers in Examiner's Report for Pre-Exam 2014 - 10.4, 18.4 and 20.2?

The comments to our Pre-Exam blog threads show an active discussion on, in particular, two statements of Pre-Exam 2014 where many candidates -and we- do not agree with the answer indicated in the Examiner's report published on the EQE website.

In the legal part, the answer to statement 10.4 is debated - see the comments to the thread "Preliminary answers to the Legal Part of Pre-Exam 2014".

In the legal part, the answer to statements 18.4 and 20.2 are debated - see the comments to the thread "Preliminary answers to the Claims Analysis Part of Pre-Exam 2014".

We would appreciate if you can share with us your scores on these two statements -either as comment to this blog, or by email to us-, together with your overall score (irrespective whether you passed or failed), so we can prepare some statistics on both answers:
- your (nick)name or EQE registration number;
- your answer to 10.4:  True/False;
- your answer to 18.4:  True/False;
- your answer to 20.2:  True/False;
- your total score



  1. If the Exam Committee considers the answer to 10.4 to be TRUE, the Exam Committee fails to recognize the existence and the substance of R. 137(2)...

    I would advice the people that failed with 68 or 69 marks and answered FALSE to 10.4 to file an appeal within the period to file it (donot forget to pay the EUR 1200 appeal fee). If interlocutory revision by the Exam Board is granted, they get their fee back, and have a result in 2 months. If they file it with a conditional "withdrawal in case the Exam Board remits the appeal to the Discipl. Board" and a request for a full refund of the fee in that case.


    M (tutor)

    1. Note that the conditions for full or partial fee refund upon withdrawal are not in an OJ - we assume it is full if the withdrawal is conditional upon remittance to the Displ. Board , as adviced by the above tutor M.

      Also note that it is a general principle that a decision cannot be overturned by the division that issued it at own motion. So, if a failed candidate does not file an appeal, he will not get a pass - also not if the decision is favourable for all others who did file an appeal.

      So, I agree with the advice of M.

      However, neither I not DeltaPatents accepts any liability in respect of the advices and suggestions given here. FIling an appeal or not is your personal choice. You can use all arguments given in this blog and in the legal blog.

  2. My name is Gus :)
    10.4. True
    18.4. True
    20.2. True
    (I'm a very positive person... :P)
    total marks 82

    thank you very much for all you effort!!!


  3. EQE 240023

    Overall 92

    10.4 F
    18.4 T
    20.2 T

    (Other incorrect answer was 4.2)

  4. EQEReg: 239017
    My total marks 68 and my answers to the problematic questions are:
    10.4 F
    18.4 T
    20.2 T

    I think I can file an appeal for the question 10.4 but could you please inform me about the content of the notice of appeal? Should I give justifications?

  5. 10.4 F
    20.2 T

    total marks 68

    Could you please inform me about how can I file an appeal. Can I pay appeal fee by deposit accout? Should I justify my notice of appeal?

    1. Art.24(2) REE:
      Notice of appeal including the statement setting out the grounds for appeal must be filed in writing with the Secretariat within one month of the date of notification of the decision appealed against. Notice of appeal shall not be deemed to have been filed until the fee for appeal specified pursuant to Article 17 [6 x Basic Fee, so, currently, 6 x EUR 200 = EUR 1.200] has been paid within the period of one month specified above.

      - within 1 m:
      - notice and grounds, i.e., full argumentation, and
      - pay appeal fee

      The Examinatio Board has two months for interlocatory revision - if the Examination Board grants your appeal in this interlocatory revision, you will get your fee back; if not, the case is remitted to the Disciplinary Board and will most likely not be decided upon before the next EQE - consider to withdraw the appeal if interlocatory revision is not succesful, so you save energy and time to prepare for the next EQE (if remitted, chances to get it granted are probably smaller...)

      See the discussion and information in the threat "".

  6. Let me also add a couple of comments about how I think you should approach an appeal based upon my understanding of the system. I am not in the examination committee or boards, but I have had some contacts with them over the years. I have also had contact with a number of candidates who filed appeals.

    1) the chance of winning an appeal is very small. The marking system and evaluation that has been applied is already quite thorough.

    2) filing an appeal can have a negative effect on your own mental attitude. By focussing on the negative and how unfair the system appears, you cannot get in the right frame of mind to study. You can end up very bitter and frustrated.

    3) An appeal is intended to allow a candidate to correct a mistake. By scoring less than 70, there is a conclusion that you do not have the potential to pass the Main Exam next year. The goal of the EQE system is to establish whether you are "qualified to practise" - this used to be called "fit to practise" - See REE A.1(1).

    4) So you have the best chance of wining an appeal by showing that you are at a sufficient level to pass the Pre-Exam. I recommend not base your appeal solely on a single answer which could be interpreted in different ways.

    One way to do this is to look at all the questions you got wrong - if these are "fundamental questions" for which there is no excuse for getting them wrong, then your mark under 70 correctly reflects your level. If the questions that you got wrong are more "advanced questions", then you may have a valid argument. Imagine the person looking at it saying 'but how come you missed the other 30 points?"

    This may seem unfair, but by basing your appeal on only 1 statement, you are trying to show that "you would have answered it correctly if the question had been written differently". This is also impossible to prove.

    Another thing to realise is that many candidates may have correctly answered 10.4. This can seem strange, but realise that the questions are not intended to be answered by someone with many years experience who has seen a lot of grey areas in interpretation. They are intended to test someone with a limited knowledge who is studying. Sometimes we tutors interpret the questions in a very complicated way or we read it with years of experience.

    So in short, if you feel strongly, consider filing an appeal to let off some steam. But start your preparation anyway, and be prepared to redo the Pre-Exam by registering in-time.

    Do not rely on winning the appeal - assume that you have already failed, and that there is a tiny chance that you may still pass. Direct some of that energy into preparing for next years exam.

    If you file the appeal, you increase your chance of success by addressing more than 1 incorrect answer.

    As I mentioned, this is based on my own perception and experience of how the system works.

    1. hi Pete, I do not agree that there is a grey area in interpretation for statement 10.4. Not in any possible way!!! It is very unambiguous, and the answer cannot be different than FALSE. Many brief and extensive argumentations are given on this blog and the other blogs on the Deltapatents site by many different candidates, which were mostly correct when concluding FALSE. However, there is not a single argumentation that concludes TRUE that is correct for the statement and question as it was in the Pre-.Examination paper. I only saw correct argumentation in support of a different statement than the one given, i.e. an essentially different question/ statement which includes that the applicant does not want the deleted embodiment to show up in the publication. This is however NOWHERE stated in the question 'introduction' nor in the statement. If this is what the Exam Committee wanted to test, the question ns/or statement should have been different !!! How can they consider an answer to a non-asked question correct, and the correct answer (FALSE) to the actual question/ statement wrong??? I think the Examination Committee should be fair to admit they were wrong and take appropriate action - even the Enlarged Board sometimes overturns their earlier decisions, so the Examination Committee (or Examination Board, or than at least the Supervisory Board) should not feel ashamed of having made an error... They should however for not taking appropriate corrective action!!! J

  7. 90
    10.4 F
    18.4 T
    20.2 T

  8. Hi,

    First I put 10.4 down as false, but changed it to true because I thought maybe they wanted to check if we knew that the description can’t be changed for publication. I still doubted afterward though because that is not what the statement or the question said.
    For 18.4 I put False as the claim only says that that the base is in contact with part of the tube – it doesn’t say which part of the tube, it may be a middle part of the tube.

    Best regards, K

    1. We were always told to (see many Examiner's Reports in the Compendium), and the REE / IPREE also explicitly says we have to, stick to the facts of the case and just answer the question asked. So, rather dumm to change your answer from F to T if you recognize that T is not the answer to the question, but the answer to what you thought they wanted to test, but did not ask!!! You were lucky however this time that the Exam Committee did not stick to their own comments and themselves did not stick to the explicit and implicit/ direct & umambiguously derivable facts of the question. So that the Exam Committee violated the REE/ IPREE in this respect! (Is this a substantial procedural violation?) J

  9. I made the following answers in the exam:

    - 10.4: False [No amendments before receipt of Search Report R137(1), R70a]

    - 18.4: True [D1 has a gap between tube and base so doesn’t achieve this technical effect, technical effect of the base in contact with a part of the tube is a reduction in amount of remaining product]

    My total score was 86.


  10. My answers were:

    10.4: False (as the questions only said "is it possible to amend" and did not refer to whether the amendments would be published - also under EPC it is possible to amend the description after receipt of the search report, whereas under PCT Art.19 only the claims can be amended but not the description)

    18.4: True (because the application has clearly istiguished this effect compared to the prior art D1: [003] A drawback of the liquid soap dispenser of D1 is that too much liquid soap is left at the base of the bottle that cannot be removed from the bottle, because the end of the tube does not contact the base of the bottle.)

    I for a total score of 79 from the Exam Comittee.

    Best regards, Mike

  11. Hi Mike,

    I also though that 10.4 was testing whether we weer aware of the differences between EPC and PCT... and thus answered FALSE as it is allowed under the EPC to amend the description already after the search report and not only when entering examination (Art.123(1) EPC allows amending the description & R.137(1) only set a starting moment as of which amendments can be filed without imposing any limit to the type of amendment; GL A-V 2.1 makes excplit that amendments to the description are allowed at own volition -- PCT Art.19(1) only allows to amend the claims after having received the ISR and PCT Art.34(2)(b) allows to amend the claims, the description and the drawings during the Ch.II proceedings before the IPER is established.
    So, for an EP appllication, the answer is FALSE, whereas it would gave been TRUE if it were a PCT application.

    Regards, Johanna

    1. Dear Johanna andMike,

      Interesting new viewpoint, completely correct legal conclusions, and I agree that such reading is valid and gets you to FALSE (as the question relates to a direct EP application).
      Maybe it also played a role that you started wondering where the PCT-related questions were when you were at the very last statement of the legal part ;-)?

      Kind regards, Roel

  12. Hi all,

    These were my answers in the Pre-Exam:

    10.4. T
    18.4. T
    20.2. T

    Total score: 89



  13. For statement 10.4 and 18.4, I also asked the question above to the candidates that were in one of our pre-exam courses last year. Not all of them responded, but together with the responses given above, it shows the following statistics:

    Total candidates responded: 26
    Average score: 85,3 marks
    Scores ranging from 68 - 92.
    So, I counted the answers given by all these candidates as well as the candidates scoring above average (85 or more marks).

    Response to statement 10.4: 26 candidates
    10.4 - All candidates: T: 11 vs F: 15
    10.4 - Candidates with a total score 85-100: T: 5 vs F: 12
    So, for good, average and poor candidates together, it was about 50/50, with a preference to F; whereas for the really good candidates, the clear majority answered F to 10.4.

    Response to statement 18.4: 26 candidates
    18.4 - All candidates: T: 24 vs F: 2
    18.4 - Candidates with a total score 85-100: T: 15 vs F: 2
    Thus, the vast majority answered T to 18.4.

    Response to statement 20.2: 7 candidates (I forgot to ask in my mail survey...)
    20.2 - All candidates: T: 7 vs F: 0
    20.2 - Candidates with a total score 85-100: T: 4 vs F: 0
    Although based on only 7 candidates, it seems safe to conclude that the vast majority of all candidates answered T, as well as of the high-scoring candidates.

    It would be interesting to have statistics like these for all statements for all candidates of Pre-Exam 2014!

    Further, one candidate scoring 92 marks answered F, T, and T for 10.4, 18.4 and 20.2 thereby loosing 6 marks,and lost another 2 marks by incorrectly answering 4.2.

    One candidate, with a total score of 79, commented:
    "10.4: False (as the questions only said ""is it possible to amend"" and did not refer to whether the amendments would be published)
    18.4: True (because the application has clearly distiguished this effect compared to the prior art D1: [003] A drawback of the liquid soap dispenser of D1 is that too much liquid soap is left at the base of the bottle that cannot be removed from the bottle, because the end of the tube does not contact the base of the bottle.)"

    Another candidate scoring 92 and answering T to 10.4 and F to 18.4 remarked:
    "First I put 10.4 down as false, but changed it to true because I thought maybe they wanted to check if we knew that the description can’t be changed for publication.
    For 18.4 I put False as the claim only says that that the base is in contact with part of the tube – it doesn’t say which part of the tube, it may be a middle part of the tube."
    (See also the above post by K on April 16)

  14. Note: answers according to Examiner's Report were:

    10.4 - True
    18.4 – False
    20.2 – True

  15. Hi,

    I only now realized that the APPEAL PERIOD for an EQE appeal is ONLY ONE MONTH and not the standard two months!

    I obtained 66 marks. I could not understand the explanations given in the examiner report for all of the questions that I answered wrong according to the official answers. Last week, a colleague told me about your blogs, I have read this blog and your other blogs about the last pre-exam: I see you and many other candidates also do not agree with some answers from the exam committee. As I failed among others 10.4, 18.4 and 20.2 (as well as e.g. 20.4 which I also think is wrong in the official answer),

    I concluded last Froday that I am gonna file an appeal. But your blogs said that the appeal has tp be filed within one month. I first though that that was a typing error, but it did give me two sleepness nights, as time would be short if it is ONLY ONE MONTH...! I looked it up this early morning in the exam regulations, and saw that Article 24 of the REE does indeed specify one month, and NOT the two month of Article 108 of the EPC itself!!! And it is also needed to IMMEDIATELY file the complete statement of grounds for an exam appeal and NOT only within 4 months of Art.108!!!

    My letter with the FAIL decision has a date of 28 March 2014 on it. So, notification is plus 10 days is 7 April. So the time limit for filing the notice of appeal against my FAIL expires on 7 May 2014, including the grounds and all my arguments. I must also pay the appeal fee before or on 7 May 2014.

    Luckily, the appeal fee for EQE appeal is 1200 euro as was indicated somewhere on your blogs and not the 1860 euro of the amended Rules Fees. And although you clearly indicate that you do not know whether I will get it reimbursed when I withdraw the appear if interlocutory revision does not get me a PASS, the examination rules at least allow a full reimbursement at the discretion of the Discipl Board without such a strong requirement for as being equitable to a substantial procedural violation by the first instance to be allowed a reimbursement as required by the EPC rule 103(1). So, I hope that interlocutory revision is succesful - I will know by 2 months from notification of decision, so 2 months after 7 April, so 10 June (7 June is a Saturday and on Monday 9 June the EPO is closed too) if that is the case, and then get the complete appeal fee back if it was successful. I will put a conditional withdrawal of my appeal in the notice with the condition that the Discipl Board will reimburse me the full appeal fee and did not decide to give me a PASS before 1 September. So, if they decide quickly in my favour, I know I can prepare for the main exam and get my fee back. If they need more time to decide, I cannot afford to wait and have to prepare for resitting the pre-exam - I can then start in September to prepare again for that (and will then do your Basic Legal Block course that you announced for this autumn to make 100% sure that I will pass) and may get the full reimbursement if they allow my condition for the withdrawal. And if they donot decide so quickly, I have to accept that I will loose or not have the result in time to prepare, and play better safe-than-sorry and also prepare for the pre-exam again, even though it is not fair (I do congratulate the candidates that just passed with a score in the 70-75 mark range with the "correct" answers for 10.4&18.4&20.2 but that should have failed if the committee used the real correct answers for marking...)

    Thank you for all the information! I will now make my notice and grounds and file it before 7 May. One week to do it, should be enough with the info you gave in all the blogs! I will tell you the result of the appeal ( but that will be too late for other candidates to appeal!!).
    I assume it will increase my chances as well as that of other candidates if more candidates file an appeal, based on the same statements. Please all do!

    1. Hi Anonymous of April 27,

      Gee, you were early for a Sunday morning!'As you didnot give your name, I will call you Early Bird Winking smile emoticon Was it the sleepness nights?I can understand, you were unlucky, as failing is alsways unlucky, but if that is because some statements are not unambiguous, or are unambiguous for every valid interpretation of the question and statement, but allow different valid interpratations leading to opposite conclusions.

      It is a difficulty of the True-False format± making such questions unambiguous is really difficult, and the Exam Commitee did a very good job in my view this year as there seem to be ONLY three statements for which there is a really strong debate as to the validity or the unambiguity of the answers.
      I expect there will always be a few ambiguous statements, also when even more attention is given to designing the question. It is simply too difficult to have them all perfect (unless giving away the answers, but that is not the purpose of the exam...).
      I, as well as other tutors, will certainly discuss what could be ways to deal with this fact when we meet the Exam Committees on 10 October in Munich. I think the solution is not in more and more effort in making the questions and the statements, but that the solutiuon should be found in the marking scheme, especially by consider both anwers, TRUE and FALSE, correct for such statements.
      I think a good indication as to which statements may validly be answered differently that expected, can be obtainable already from a pure statistical analysis of each statement along the lines as we did it among our candidates by email and on the blog: where a large fraction of all candidates have an opposite answer than the answer expected, this seems a hint for a valid other reasoning leading to a valid other answer. And when also making the statistics for all candidates that passed with a high score (we used the average, 85), the conclusion may be further confirmed. Further, althought the exam is tested with a group of guinea pigs prior to the exam, it could be considered to let qualified European patent attorneys and tutors sit the actual pre-exam together with the candidates to provide a control group that did the exam in the same time pressure and environment and without any consultancy to other colleagues: the answers they give can also give some guidance I would expect. (Pete and I volunteer for the Pre-Exam and for Paper D Winking smile emoticon)
      Whether the Examination Committees, Examination Board or Supersory Board can decide to take this approach retroactively for all candidates that are in the 64-69 range (i.e., whether they have the discretionary power to overturn decisions already taken even for candidates that did not filed an appeal, is not clear to me - I would say that general principles do not allow that, but on the otherhand, Art. 3(3), Art.3(5), Art.6(5) and Art.10 ("only bound by") REE may be interpreted to allow this...)

      Good luck with your appeal! But do not akready think that it will be successful - also be prepared for a possible negative result!


    2. Hi again Early Bird,

      Thx for your warning as to the time limits, so that all who consider to appeal are mad aware (again) that the time limit is indeed shorter than for a normal appeal, and that only ONE time limit applies for all of the notice, grounds, facts, arguments and evidence, and fee.

      However, I would like to emphasize that it is NOT AT ALL a guarantee that your appeal will be successful, even though I as well as others would consider that fully just.
      Also, reimbursement in full is only guaranteed of interlocitory revision is successful - if it is not, it is at the discretion of the Board of Appeal to decide whether a full or partial reimbursement "is equitable in the circumstances of the case" (no general guidance is availabke in public sources), and is upon the condition that the "the BoA allows the appeal" (so, if you win, I would conclude that you get it back in full or in part, as one can assume that it is then equitable) or "the appeal is withdrawn" (where the reimbursement level is more uncertain).
      Whether and to what extent a reimbursement is awarded after a withdrawal, I and other tutors really do not know what can be expected. I asked the Exam Secretariat [Art.19(1) REE], but they could not answer it either, as it is not in their competence but in the competence and discretion of the Board.


    3. Dear Early Bird,

      If you have further questions as to the procedure: the Examination Secreariat is very good in providing help. When I asked them to confirk the time limits for appealing and for the interlocutory revision, the answered in a very complete manner. For your information, they gave me the following information:

      "Article 24 REE specifies the appeal procedure before the Disciplinary Board of Appeal (DBA) in cases relating to the EQE. Please also refer to Rule 9 IPREE (appeal fees EUR 1200) and it could be of use to have a look at the case law of the DBA relating to the EQE.
      Here is the information specific to your questions.

      The result letters are dated 28.03.2014. Notice of appeal with grounds as well as appeal fees must be received at the Examination Secretariat within one month of the date of notification; by 7 May at the latest.

      The Examination Board has one month to decide whether the appeal is well-founded or not. Therefore a decision on interlocutory revision will be taken by 10 June at the latest (7 June being a Saturday and Monday 9 June the EPO is closed).
      If the appeal is well-founded candidates will be informed accordingly. As you mentioned, the candidates will know by the second week of June for which examination (pre or main) to prepare.
      Appeal fees will then be reimbursed. However the reimbursement process might take some time (depends on how the candidate paid and capacity of the finance department). Although every effort is made to reimburse as swiftly as possible, it could take more than 3 months.

      If the appeal is remitted to the DBA, the Examination Board and the Examination Secretariat are no longer competent.
      The procedure can take anything from a couple of months to over a year. If I am not mistaken, candidates may request an “accelerated procedure” before the DBA.
      We usually advise candidates not to wait for the result of the appeal procedure but to enrol for the next EQE (deadline 2 June 2014 for pre-examination)."

      I also asked whether a conditional withdrawal similar to what you proposed would be possible, i.e., a withdrawal when remittal to the Disciplinary Board takes place (i.e., where interlocutory revision is not successul) with the aim to get a full reimbursement and be out of the uncertainty if interlocutory revision would not be succesful, to which they answered:

      "This is quite unusual. I have never seen such conditional withdrawal upon remittance to the DBA.
      If the interlocutory revision is not “successful”, the Examination Board has to forward the appeal to the DBA.
      Then again it is up to the DBA to decide whether this conditional withdrawal included in the notice of appeal is valid or not. I cannot comment on that.
      Decision by the DBA on withdrawals of appeal are usually decided upon quickly."

      And, lastly, the Examination Secreatiat ( or phone: see EQE website) is very very easy to reach and very cooperative in giving information. They concluded their email to me with an invitation that I believe is addressable to everybody:

      "I hope that this information has clarified the matter. Should you have further question, please do not hesitate and contact me directly."

      Best regards, Roel

    4. Hallo,
      Today I got the letter of the EPO that they opened a proceeding at the Disciplinary Board of Appeal. Is this only a confirmation that the EPO duly received my appeal or does the Examination board didn't change their oppionion and remitted the appeal to the Board of Appeal?
      Do you think there is no longer a chance of winning my appeal and I should withdraw it to get back the appeal fees? Or should I wait some weeks longer?
      Best regrats, Marcel

    5. Hi Marcel,

      It means the Examination Board did not grant interlocutory revision, but remitted it to the Disciplinary Board.

      I know that at least one other appeal was filed and got the same faith. It would be reasonable to assume that that increases the chances of both of you to get to a positive outcome, but the cases are formally independent.

      Did you ask for accelerate proceedings? If not done yet, I suggest to do so in a response to the letter that you just received.

      Another tutor told me that the usual procedure is that -provided you requested oral proceedings- the Disciplinary Board sends you their preliminary opinion prior to oral proceedings, i.e. prior to taking as decision. Although not documented, it appears to be likely that you will get your appeal fee refunded in fully or at least to a large extent if you withdrawn your appeal after you have received this preliminary opinion and well before the oral proceedings.
      The Disciplinary Board will probably not easily look at the substance of the statements -i.e., whether the answer is indeed T or F (more the competence of the Examination Committees, the Examination Board and the Supervisory Board)-, but rather at procedural aspects and appropriate use of power / competence by the Examination Board. So, if you submit further arguments, consider to raise things in that area (for example, that your consider it not fair that the Examination Board accepts only a single answer correct for a specific statement, even where there is a lot of debate as to whether indeed only that single answer is correct and not both answers or -only- the other answer based on fair and reasonable argumentation that differs from the argumentation given by the Exam Committee in the Examiner's report, whereas a candidate has no possibility in the pre-exam to give any argumentation as to why he came to his answer, and where the Examination Board could see from statistics over all candidates that a specific statement was likely/obviously not unambiguous to answer)

      On what reasoning and as to which statements did you appeal?

      Kind regards, Roel

      NB: if you send me your email address (see the DeltaPatents website under "Our tutors" for my email address), you can discuss without sharing all doubts etc with the whole world ;-)

  16. If you file an appeal, do not forget to include a request for oral proceedings in case the decision will not be changed info a PASS. You can expect that the summons to oral proc will be accompanied by a preliminary opinion; if that is not favourable and seems difficult to challenge, you can withdraw the appeal then, and will probably get your appeal fee refund in whole or at least in part.

    1. Also, request accelerated proceedings. You can submit that you have a legitimate interest in having a quick decision, as you will need to know which paper(s) to prepare for: resitting the Pre-Exam, or continuing with one or more main exam papers.

  17. I think that I can contribute with my results so you can come to the point you (and I believe quite a number of us) would like to make!
    After I checked my answers using your results I had 76 points – and finally ended with 70 (the heart attack result).
    I surely think it is not accidental.

    your (nick)name or EQE registration number; M

    - my answer to 10.4: False
    - my answer to 18.4: True
    - my answer to 20.2: False

    - my total score – 70 points

    1. I am glad you passed: congratulations!

      I am sorry to have been part of the reasons for your heart attack...
      We are aware that posting our answers has a risk that our answers may deviate from the official answers, and that may have an effect like this (or even worse... concluding 74 from our answers and ending up with 68 as official result).
      However, in view of the large number of candidates requesting us to post our answers quickly after the exam, we feel we have to accept the risk. We also consider it useful to have a discussion soon after the exam as to what the answers are, if/where other answers could be correct as well, ..., wherein candidates, tutors and all others interested can participate to share his/her thoughts.

      Kind regards, Roel

  18. See D 2/14 (German), D4/14, D5/14, D6/14, D4/14 (no one in English); incredible but the appeals based on question 10.4 were successful! Congratulations to the candidates that have still passed the pre exam.

    1. Dear PJ,

      Thx for your comment. For those interested, the decisions (with very similar reasons) can be found here - and are worthwhile reading:,,,

      These four decisions were all taken on 22 July, and put online on 11 Aug (you were quick to spot that). As of today, no other decisions as to Pre-Exam 2014 have been put online - I do not know whether more are pending.

      Note that the Board emphasizes that their competence to review the exam answer/ marking substantively is very limited. See e.g. D 2/14, r.1. "Gemäß Artikel 24(1) VEP und nach ständiger Rechtsprechung der Beschwerdekammer (im Anschluss an D 1/92, ABl. EPA 1993, 357) sind Entscheidungen der Prüfungskommission grundsätzlich nur dahin zu überprüfen, ob nicht die VEP oder die bei ihrer Durchführung anzuwendenden Bestimmungen oder höherrangiges Recht verletzt sind. Es ist nicht die Aufgabe der Beschwerdekammer, das Prüfungsverfahren sachlich zu überprüfen. Den Prüfungsausschüssen und der Prüfungskommission steht nämlich im Grundsatz ein Beurteilungsspielraum zu, der nur sehr begrenzt der gerichtlichen Überprüfung zugänglich ist. Nur wenn der Beschwerdeführer geltend machen kann, dass die angegriffene Entscheidung auf schweren und eindeutigen Fehlern beruht, kann dies von der Kammer berücksichtigt werden. Der behauptete Fehler muss so offensichtlich sein, dass er ohne Wiedereröffnung des gesamten Bewertungsverfahrens und ohne wertende Neubetrachtung der Prüfungsarbeit festgestellt werden kann. Das ist etwa dann der Fall, wenn Prüfer bei ihrer Beurteilung von einer technisch oder rechtlich falschen Beurteilungsgrundlage ausgehen, so dass die angefochtene Entscheidung auf dieser beruht."
      In the current case, this leads to: "2. Laut dem Prüferbericht zur Vorprüfung 2014, der den Prüfern des Prüfungsausschusses IV als Beurteilungsgrundlage diente, liegt der Aussage 10.4 die Problemstellung zugrunde, ob eine Änderung der Beschreibung einer europäischen Patentanmeldung, die vor Veröffentlichung der Anmeldung eingereicht wird, in der Veröffentlichung berücksichtigt wird oder nicht (siehe Punkt V oben). In der Aussage 10.4, die von den Bewerbern mit "wahr" oder "falsch" zu bewerten war, fehlt indes eine Bezugnahme auf den Inhalt der Veröffentlichung. [...] Der Beschwerdeführer moniert zu Recht, dass in der Aufgabe jeglicher Hinweis fehlt, dass beabsichtigt ist, die Veröffentlichung der Ausführungsform X1 zu verhindern. Die Aussage 10.4 hätte anders formuliert werden müssen, um diese Zielsetzung zum Ausdruck zu bringen. Es konnte von den Bewerbern nicht erwartet werden, diese Zielsetzung als Annahme zu treffen, da die Regel 22(3) ABVEP den Bewerbern vorschreibt, sich auf die in der Prüfungsaufgabe genannten Tatsachen zu beschränken. Folglich liegt der Aussage 10.4 nach objektiven Maßstäben nicht die Fragestellung zugrunde, die die Beurteilungsgrundlage der Prüfer bildete."
      r.2.1: "[...] Als Folge dieses Verständnisses war die Aussage 10.4 gerade anders zu bewerten, als der Prüferbericht zur Vorprüfung 2014 vorgab. Die Diskrepanz zwischen der Aufgabenstellung und der Beurteilungsgrundlage wirkte sich somit zu Ungunsten des Beschwerdeführers aus."

    2. Roel van Woudenberg20 August 2014 15:06
      The Board further reasons (D 2/14, r.9) that "die Prüfer des bewertenden Prüfungsausschusses IV über keinen Ermessensspielraum bei der Bewertung der Aufgaben", "die Vergabe der Punktezahl erfolgte schematisch und ohne Ermessen auf Seiten des Prüfungsausschusses", " Regel 6(2) ABVEP auch verbindlich fest, bei welcher Gesamtpunktezahl einer Arbeit die Noten "bestanden" oder "nicht bestanden" vergeben werden. Daher bestand auch für die Prüfungskommission kein echtes Entscheidungsermessen."
      "10. Der schwerwiegende Fehler bei der Aussage 10.4, den die Beschwerdekammer im Rahmen ihrer gerichtliche Kontrolle auf eindeutige ermessensmissbräuchliche Verfahrens¬verstöße bei der Bewertung der Prüfungsarbeiten fest¬gestellt hat, führt bei dieser Sachlage unmittelbar zu einer Korrektur der Wertung der Prüfungsarbeit des Beschwerdeführers, die auf der Grundlage des der Beschwerdekammer vorliegenden Antwortblatts des Beschwerdeführers ohne Eingriff in einen Ermessensspielraum des zuständigen Prüfungsausschusses bzw. der zuständigen Prüfungskommission nachvollzogen werden kann.
      11. Hinzu kommt, dass die Bewertung der Vorprüfung der Europäischen Eignungsprüfung 2014 mit der Note "bestanden" eine Bedingung für die Anmeldung zur Europäischen Eignungsprüfung ist (Artikel 11(7), letzter Satz, VEP). Die vollständigen Anmeldeunterlagen der Bewerber, die sich zur Hauptprüfung 2015 anmelden möchten, müssen bis spätestens 8. September 2014 beim Prüfungssekretariat eingegangen sein. Daher besteht Dringlichkeit. Eine Zurückverweisung an die Prüfungskommission würde die zur Verfügung stehende Zeit weiter verkürzen.
      12. Schließlich ist nach Auffassung der Beschwerdekammer auch dem Umstand Rechnung zu tragen, dass die Prüfungskommission ungeachtet der wohl begründeten und objektiv nachvollziehbaren Rüge einer Diskrepanz bei der Bewertung der Aussage 10.4 der Vorprüfung 2014 die fehlerhafte Entscheidung nicht auf dem Weg der Abhilfe beseitigt und damit auch nicht den Zeitaufwand eines Verfahrens vor der Beschwerdekammer erspart hat.
      13. Diese Umstände stellen nach Auffassung der Beschwerdekammer besondere Gründe dar, die rechtfertigen, dass die Beschwerdekammer anstelle des zuständigen Prüfungsausschusses bzw. der zuständigen Prüfungskommission eine individuelle Bewertung der einzelnen Arbeiten unter Vergabe von Einzelpunkten und darauf basierend eine Vergabe der Noten "bestanden" oder "nicht bestanden" vornimmt.
      14. Vorliegend hat der Beschwerdeführer die drei Aussagen 10.1, 10.2 und 10.3 der Vorprüfung 2014 korrekt beantwortet. Die Neubewertung der Aussage 10.4 führt nunmehr dazu, dass der Beschwerdeführer für die Aufgabe 10 fünf statt drei Punkte erhält. Damit erhöht sich die Gesamtpunktzahl seiner Arbeit von 69 auf 71 Punkte. Nach Regel 6(2)a) ABVEP ist für die Vorprüfung 2014 des Beschwerdeführers die Noten "bestanden" zu vergeben.
      15. Bei diesem Ausgang des Verfahrens bedarf es keiner mündlichen Verhandlung, die lediglich hilfsweise beantragt war, und auch keiner Stellungnahme zum Antrag, bei Gutheißung der Beschwerde eine angemessene Frist zur Anmeldung zur Prüfung 2015 festzusetzen, falls die Anmeldefrist abgelaufen ist."
      and decides:
      Aus diesen Gründen wird entschieden:
      1. Die angefochtene Entscheidung wird aufgehoben.
      2. Die Prüfungsarbeit des Beschwerdeführers im Rahmen der Vorprüfung zur Europäischen Eignungsprüfung 2014 wird mit 71 Punkten bewertet. Nach Regel 6(2)a) ABVEP wird die Note "bestanden" vergeben.
      3. Die Beschwerdegebühr wird zurückerstattet."

  19. There is now also a decision in English, D 3/14. Also with extra fun about a conditional withdrawal of an appeal before the DBA. And a withdrawal of a withdrawal of an appeal. However, the decisive paragraph regarding Q10.4 is:
    "6. According to the Examiner's Report for the pre-examination 2014 on which the examiners of Examination Committee IV based their evaluation of the examination papers, statement 10.4 posed the question whether the description of a European patent application which is amended before its publication is published in amended form or as filed (see point V above). There is however no reference in statement 10.4, that had to be answered "true" or "false", to the contents of the publication. The introductory words of the statement "Before the publication of EP-T ..." clearly refer to the publication as a relevant point in time and not to the contents of the publication. The purpose indicated by the words "... in order to delete embodiment X1" does not determine how the amendment should be made. This phrase is not grammatically linked to the publication (and even less to the publication's contents). Nor does the general context of the stem (preamble) suggest that embodiment X1 should be deleted from the text that is to be published. The appeal board thus agrees with the appellant that there is no indication in question 10 that it is intended to prevent the embodiment X1 from appearing in the publication of the patent application. Statement 10.4 should have been formulated differently in order to express this aim. Candidates could not be expected to make an assumption in this respect, since Rule 22(3) of the implementing provisions to the Regulation on the European qualifying examination for professional representatives (IPREE, Supplement 2/2014 to OJ EPO, 18) provides that candidates must limit themselves to the facts given in the examination paper. Consequently, the examiner's evaluation of the examination papers rests upon a question that cannot, upon an objective reading, be derived from statement 10.4 of the pre-examination 2014."