D 0001/92 (Powers of the Disciplinary Board) of 30.7.1992

Summary of Facts and Submissions

I. The appellant sat the European Qualifying Examination held from 19 to 21 April 1991 and received the following marks for his four papers:

A: 5, B: 4, C: 6, D: 3.

II. On 11 December 1991 the appellant filed an appeal against the decision dated 11 October 1991 of the European Patent Office's Examination Board for the European Qualifying Examination that he had failed the examination.

III. The appellant's essential argument in support of his appeal was that the two examiners had not marked his paper A correctly. Detailed analysis of his answer to that paper had confirmed that the mark should have been well over 23 points, with the result that a grade 5 did not do justice to the appellant's work, which should have been awarded at least a 4. A corresponding analysis of his answer to paper C had shown that the award of only 8 points by one of the examiners did not do justice to the appellant's "use of information supplied" and that instead at least 10 points should have been awarded. The same applied to "argumentation", where the maximum number of points was 30 and, if marked correctly, at least 10 points should have been awarded, with the result that the total mark would have been somewhere between 36 and 49 points and paper C should have been awarded a5.

IV. The appellant requested accordingly that:

(a) the decision of the Examination Board of 11 October 1991 be set aside subject to the proviso that paper A be awarded a 4, paper C a 5 and the whole examination be deemed to have been passed;

or, in the alternative, that

(b) paper A be awarded a 4, with the result that Article 12(3) REE in conjunction with IX(b) of the Implementing provisions under Article 12 REE applied,

(c) paper C be awarded a 5, with the result that Article 12(3) REE in conjunction with IX(b) of the Implementing provisions under Article 12 REE applied.

V. The Examination Board considered the appeal in accordance with Article 23(3) REE but decided at its meeting on 11 February 1992 not to rectify its decision.

VI. In accordance with Article 23(4) REE in conjunction with Article 12, second sentence, of the Regulation on discipline for professional representatives, the Disciplinary Board consulted both the President of the European Patent Office and the President of the Council of the Institute of Professional Representatives before the EPO, but neither presented any comments as to the merits of the appeal.

Reasons for the Decision

1. The appeal complies with Article 23(1) and (2) REE and is therefore admissible.

2. The decision is based on the Regulation on the European Qualifying Examination for professional representatives before the European Patent Office as amended by decision of the Administrative Council of 7 December 1990 (OJ EPO 1991, 15). The additions to Article 12(2) to (4) REE in Article 2 of the amending regulations are of particular importance. These amendments in conjunction with the Implementing provisions under Article 12 REE revised by the Examination Board with effect from 7 December 1990 (OJ EPO 1991, 88) introduce a system for the overall assessment of candidates' papers which diverges from the previous legal situation. Under the new provisions a candidate is successful, when assessed overall in accordance with Article 12(2) REE, if he

(a) has failed only one paper, which has been awarded a grade 5, and that grade is offset by a grade 3 or better in at least one other paper;

(b) has failed only one paper, which has been awarded a grade 6, and

(i) if that grade is in paper A or B, it is offset by a grade 3 or better in paper B or A and in at least one other paper;

(ii) if this grade is in paper C or D, it is offset by a grade 3 or better in paper D or C and in at least one other paper;

(c) has failed two papers, each of which has been awarded a grade 5, those grades being in only one of A and B and only one of C and D, and offset by a grade 3 or better in both of the remaining two papers.

3. As far as the reviewing of decisions of the Examination Board by the Disciplinary Board of Appeal of the European Patent Office is concerned, even after the above-mentioned amendments, the principle expounded in the Disciplinary Board's decision of 15 September 1988 (D 4/88, not published) applies. 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. At no point in the appellant's submission is there any evidence that the Examination Board, in marking his papers, has infringed any of the provisions governing the examination procedure, in particular under the above-mentioned new law, or even any general principle of law.

4. The appellant does, however, assert that the examiners responsible marked his papers A and C incorrectly, giving a false overall result. It follows from the above-mentioned principle expounded in the Disciplinary Board's decision of 15 September 1988 (D 4/88) that it is not the task of the Disciplinary Board of Appeal to reconsider the examination procedure o n i t s m e r i t s. Only serious and obvious mistakes, allegedly made by an examiner when marking a candidate's paper and on which the contested decision is based, can be considered. Furthermore, the alleged mistake must be so obvious that it can be established without re-opening the entire marking procedure. All other claims to the effect that the papers have been marked incorrectly are not the responsibility of the Disciplinary Board of Appeal. Value judgments are not, in principle, subject to judicial review.

5. In the case in question the appellant's entire submission is directed essentially at the fact that the examiners awarded both his papers A and C an incorrect, and insufficient, number of points. The appellant believes that an objective evaluation of his answers should have led to his being awarded higher grades and thus being successful in the examination. What is being contested therefore are value judgments specific to the examination, which in accordance with the above principles are not subject to review by the Disciplinary Board. What is involved are differences of opinion between the appellant and the examiners over the "correct" marking of the appellant's papers. There is no evidence that, in marking the appellant's papers, the examiners have made a serious mistake that could be regarded as an abuse of their powers.

6. In view of the existing provisions, in particular the aforementioned Implementing provisions under Article 12 REE, it therefore has to be concluded that the Examination Board's decision does not infringe the system of rules in force.

ORDER

For these reasons it is decided that:

The appeal is dismissed.