(originally published in the CIPA Journal, January 2006)

Last year was a good one for British candidates sitting the European Qualifying Examination. A total of 68 British candidates passed the EQE on their first attempt. Never before had the number of first-time British passes exceeded that of the Germans. This success was all the more remarkable given the notable contrast between the 227 first-time German candidates sitting the exam, and the comparatively skimpy 147 from the U.K.[1]

Despite last year’s noteworthy achievement, however, British success in the EQE is nothing new. As can be seen from Graph 1 below, in 10 of the last 11 years the British first-time pass rate has regularly exceeded that of the Germans and other nationalities, the sole exception being 2001 when 39% of first-time German candidates passed, in contrast to only 38% of first-time British candidates.

Why, though, should the British first-time pass rate be consistently higher than that of other countries? If the answer is that the British profession enjoys conditions especially conducive to EQE success, then why has the British pass rate declined from a high of 69% in 1995 to a low of 38% in 2001? And what has driven the increases in more recent years? The answers may be of more than academic interest to national professions, including the British, who seek to strengthen their showings in the EQE and ultimately in their share of European patent work.

The Secret of British Success

In 2002 the Patent Qualifying Committee (“PQC”) working group on statistics published the results of its analysis of EQE first-time pass rates.[2] In doing so, the working group noted that between 1996 and 2001 there was a significant difference between the 41% first-time pass rate of candidates from Germany, France and Great Britain and the 27% first-time pass rate of candidates from other countries. The working group also noted differences between countries sharing an official language with the EPO (41%) and those that did not (24%). There was, moreover, a higher pass rate for countries holding their own national examinations (39%) in contrast with countries where entry into the national profession did not depend on passing an exam (22%).

Although size of a national profession, an official EPO language and national examinations may well be factors in determining success in the EQE, such an analysis does not fully explain the consistent differences between the pass rates of different countries where all these criteria are met. After all, the German profession is significantly larger than that of the U.K., both countries have an EPO language as a mother tongue and both require candidates to pass national examinations. Nevertheless, the U.K. first-time pass rate in the period covered by the working party’s analysis was 48%, whereas Germany’s first-time pass rate for the same period was only 38%. Similarly, size and language fail to explain why the average Dutch pass rate (41%) exceeded that of both Germany (38%) and France (34%).

The PQC also analysed the national pass rates for individual papers where the total number of candidates from a country between 1997 and 2001 was at least 35. The pass rates for the six countries providing the largest numbers of candidates are shown in Graph 2 below, together with national first-time pass rates for the same period.

Graph 2 shows that the pass rates for the individual papers vary considerably from 68% in the case of Paper B to 35% in the case of paper C. However national variations are to a large extent consistent over all the papers as well as the first-time pass rate. Thus for example the pass rates show that British candidates do consistently better than average across all papers with pass rates of 66% and 69% for the Drafting and Amendment papers and 50% and 67% for the Opposition and Law papers. In the period covered by the graph, the U.K.’s performance for each paper was better than that of the Dutch or the Germans. The Dutch and Germans in turn were better than the French, who were better than the Swedes and Italians. As the ordering of national pass rates across the papers varies so little, this suggests that the factors dictating success are the same across all papers and higher first-time pass rates are merely a reflection of better performance across all the papers.

More detailed analysis of the PQC’s findings provides strong support for the common-sense view that experience of European patent work plays a large role in the disparity between first-time pass rates. The link between first-time pass rates and specifically European experience can be explored by plotting a graph of the national extent of European patent experience against pass rate as illustrated in Graph 3.

In Graph 3, the first-time pass rates are for the years 1995 - 1999. The number of applications per attorney, per year is the average number of European patent applications prosecuted by attorneys of the identified nationality in the period from August 1992 to May 2000.[3]  Unsurprisingly, pass rates appear to increase where candidates are exposed to more European work. Graph 3 suggests that it is this factor more than profession size or language which most fully explains the variation in and ordering of national pass rates.

Such a theory also seems to explain the greater variation in pass rates for the Opposition and Law papers as compared with the Drafting and Amendment papers shown in Graph 2. It is undoubtedly the case that Opposition and Law papers are more specifically “European” than the Drafting and Amendment papers. Whereas Drafting and Amendment papers exist in the British national exams, there are no direct equivalents for the Opposition and Law papers. National patent work as opposed to prosecution of applications before the EPO would therefore be expected to assist in developing the skills tested by the Drafting and Amendment papers, and such skills could therefore be expected to be acquired even if most work experienced by a trainee was national as opposed to European. In contrast, given that the Opposition and Law papers test more exclusively “European” skills, experience of EPO prosecution will be more important in preparing for those papers.

Decline and Fall?

Given that the U.K. continues to enjoy a large share of European patent work, why, then, have British pass rates been falling?

The following table details the changes in national first-time pass rates for all countries fielding more than 75 candidates in total in the period between 1995 and 2005.

As can be seen, pass rates have been falling primarily in countries with higher pass rates and rising in countries with lower pass rates. Of the countries having pass rates in excess of 35% between 1995 and 2000, only the Netherlands has increased its pass rate. Conversely, of the countries having pass rates less than 35%, pass rates have risen everywhere except for Italy.

The pattern of changing pass rates strongly suggests that the EQE has been getting harder. First-time candidates are most likely to assess how hard they need to study from the experiences of the candidates taking the exam before them. If the pass rate in a country is lower, the message from preceding candidates will be that greater effort is required in order to pass. If at the same time the difficulty of the exam is increasing, such an approach will stabilise or increase the pass rate. However, where national pass rates are higher, candidates are more likely to be caught out by a more difficult exam which requires more effort than that put in by their previously successful peers.

Certainly, back in the early 1990s when the British first-time pass rate was around 70%, the perceived wisdom was that the effort required to pass the EQE was considerably less than that required to pass the U.K. exams. It would appear that, as pass rates have fallen and more candidates see their colleagues having to re-sit the EQE, the perception of the EQE as an “easy” exam has begun to change. Consequently, increased efforts on the part of candidates have resulted in the levelling-off and subsequent upward drift of the U.K. pass rate in more recent years.

Conclusion

The results of this analysis are generally reassuring. The correlation between experience and EQE pass rates strongly suggests that the EQE is a practical test of the skills actually required by a European patent attorney rather than a merely academic examination. The fact that the British first-time pass rate is improving suggests that whatever complacency may have existed in the past has begun to dissolve, and that the profession has been able to adapt to tougher European exams.

Ultimately, first-time pass rates in examinations are of limited relevance as pass rates only regulate the speed at which individuals qualify. Over 90% of candidates who were previously unsuccessful attempt the exam again the following year, and more candidates pass at second or subsequent sittings than on their first attempt.[4] Since almost all candidates keep taking the exams until they pass the numbers of attorneys qualifying in each country is determined primarily by the numbers of candidates entered rather than the pass rate.

At the individual level, of course, it is passing the exam that really counts. Best of luck to everyone sitting in 2006.

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