While it is my impression that the IP profession, on the whole, has not had to suffer much under the current COVID-19 pandemic, the same is unfortunately not true for our patent attorney trainees. It all started in early 2020. By then about 1800 trainees had been busy for months learning and getting ready for the European Qualifying Examination, only to be informed – only a few weeks ahead of the exam – that the EQE 2020 has been cancelled due to COVID-19.

Going forward, German trainees entering their Amtsjahr (the year they have to spend at the German Patent and Trademark Office and Federal Patent Court) were confronted with the double intricacies of remote learning and completely insufficient digital infrastructure on the side of their instructors. This culminated in them being told that they had to acquire a Webex license at their own expense; otherwise the Federal Patent Court would be unable to hold online lectures. And while you may be still scratching your head about whether it is a trainee’s duty to buy a Webex license for his or her employer (trainees are formally employed at the GPTO during this time period and are obliged to attend the lectures, although they do not receive a salary – another unique oddity in Germany), you better go and collect the money. It’s only 180 EUR for a moderately sized group of about 40-50. So the trainees obliged, collected and paid the license fee, and the online lessons started. Well, at least 3 or 4 of them. Then some worryguts at the Federal Patent Court discovered that Webex operates through two web servers, one in Frankfurt and one in London. The latter, however, might possibly not be in conformity with the infamous EU General Data Protection Regulation, since it is not (no longer) located in the EU. Again, no time to scratch your head about whether this is correct on the law and, if so, whether it means that no EU citizen is allowed any longer to hold their online TCs or lectures via Webex (comments welcome, I am not a GDPR expert). In any case, online lectures via Webex were ceased; instead a purely German application was used. I prefer to cover the comments I heard about the *quality* of this application with a gracious cloak of silence.

But the worst was still to come. Once the German trainees had overcome all of these obstacles, organized themselves and studied for months for their German Patent Attorney exams, they were just now informed by a dry notification on the GPTO’s website that

In view of the ongoing COVID 19 pandemic and current developments, the German Patent and Trade Mark Office (DPMA) has decided that the patent attorney examination I/2021 will not take place on the dates previously scheduled in February 2021 (written part) and April 2021 (oral part). A make-up date has not yet been fixed.

Whow. To my mind, this raises a couple of serious questions and one personal comment. My questions are these:

Firstly, why exactly is a written exam for about 50 participants not possible even under the current circumstances? I note that the written state exams for certainly more than 1000 attorneys at law during the same time period are still on schedule. And I would guess that the GPTO should easily have more than 50 empty single office rooms in these days…

Secondly, even if holding a written exam as usual were not possible in COVID-19 times, why has apparently nobody spent a thought on holding such an exam digitally? Don’t tell me that a Patent Office is incapable of doing this – the EPO has managed to build up the necessary digital infrastructure to hold the 2021 EQE via a remote server, and the UK Patent Attorney exams have already been held via remote connection in 2020. I cannot imagine that these patent offices would not have cooperated and assisted the GPTO, had they been asked.

Thirdly, even if holding both a written exam in person and a written exam via remote connection were indeed impossible or incommensurate due to the present exceptional circumstances, why is it not possible to dispense the trainees from a written exam altogether and/or just hold an oral exam by videoconference (perhaps over 2 days rather than one as before?). The trainees are graded numerous times throughout their professional training, both by their firms, by Fernuniversität Hagen and not the least by many written exams they have to write during their Amtsjahr and the test votes they are preparing for the FPC. Thus, the GPTO should already have an excellent score of the progress and legal knowledge of each trainee anyway, which raises the question whether a written exam is really necessary in circumstances where the GPTO seems to be unable to carry it out. I am of course aware that there is a Patentanwalts-Ausbildungs- und Prüfungsverordnung (PatAnwAPrV) issued by the German Ministry of Justice and Consumer Protection (BMJV) which the GPTO has to observe and which prescribes a written exam. However, I wonder whether anyone has ever thought of asking the ministry whether the PatAnwAPrV could perhaps be modified taking the present extraordinary circumstances into due account? The BMJV has done a great job in drafting a very voluminous and complex set of emergency laws and rules for a pandemic situation within only a couple of weeks in February/March 2020. With this in mind I don’t think they would have found it overly difficult to adapt one or two sections in the PatAnwAPrV so as to do justice to these trainees, taking due account of the GPTO’s apparent difficulties to hold these written exams in Corona times.

Overall, and this is my (personal) comment on the above, the GPTO has really not covered itself in glory by cancelling these exams without even indicating a new date. Just put yourselves in the shoes of a trainee who is confronted with such a message about one month before their final exams for which they have been preparing themselves for months. This is not funny.


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9 comments

  1. Thank you, Thorsten.

    It has become quite clear to candidates that at both national (German) and European levels, there is really no representation for us, let alone a lobby. It is therefore much appreciated that you speak out on our behalf. Although, I have to admit, it would be good if candidates had their own way of raising such issues. Qualified representative’s and candidate’s views don’t always necessarily align.

    The current cancellation by the GPTO was not foreseen. The most recent exams were held in December – already long into COVID-‘high’ times. There was distancing, masks, and of course single desks that were separated by many meters, including plastic covers. We can only wonder what has changed in the GPTO’s assessment that these measures are no longer being considered adequate – when in December they were deemed fine.

    I disagree however that the written exam can be dispensed with in exchange for an extended oral exam. A 4-day written exam on multiple separate legal fields cannot be compared to an oral examination.

    However, it would easily have been possible to arrange for an online version of the exam! How hard can that be. Have people turn on their webcam, have them write their exam in Word, and have them submit it at the end of the exam – if you really cannot be bothered to research a more professional solution – this would still work. If you believe that candidates will take any opportunity to cheat, you may as well not even admit them then from the get-go, as being truthful is a codified requirement for a German patent attorney.

    1. You have too high a view of human nature I fear. Judging from what I hear from the students around me, there has been a tremendous amount of cheating in COVID-triggered online exams in Germany (and I see no reason why there should have been less cheating elsewhere). Based on my daily experience I would add that patent attorneys are not morally superior to the rest of mankind. Having said that, I am sorry for those who prepared the exam and had to learn that it was cancelled without good reason.

  2. Bravo, Thorsten. Thanks (also to Kluwer) for raising a subject which the mainstream press is not in a position to campaign about. Some might think that patent trainees are hardly the most disadvantaged members of society, but that’s not the point. To my mind, there are two other points (at least) here. First, openness and accountability, when COVID gives executives and decision makers a blanket of invisibility. Second, failings in the “Duty of Care” generally owed by the Strong to the Weak, a duty owed by the privileged members of society to those not yet enjoying that privilege. A systematic and ongoing failure of that Duty of Care will generate, sooner or later, angry, frustrated and disillusioned Trumpist-minded voters, millions of them, with dire consequences for us all.

    Come on Germany. First Wirecard, now this. It doesn’t have to be such a shambles, does it?

    .

  3. Having taken this exam and the EQE, I understand that it is very annoying to have it cancelled, maybe even more so than the cancellation of the EQE. Most people are still in a transitional phase of their life at this stage and hope to finally get settled with a proper job after the unpaid 9 months at the Patent Court in Germany’s most expensive city. Most people’s bank accounts and patience is strained to the limit and people from other parts want to get back to their home towns and close this chapter. On the other hand I can also understand the GPTO. In Bavaria, you are not allowed to leave your home after 9pm (not even for a walk). How can one justify to conduct potentially virus spreading and not strictily necessary examinations under these circumstances?

  4. Firstly, I am a member of the examining comission, but speak here only for myself. Also, I had no part in (or even knowledge) regarding the postponement of the exams.

    Some thoughts to the article and the responses:
    AFAIK, the exam is postponed, not cancelled (same as the oral exam in spring 2020, which was postponed 1…2 months due to the first lockdown).
    The written exam would have started on Feb. 1st – the day after the current lockdown. Possibly the idea behind postponing the exam now was to avoid having to do this on really short notice (after all, the decision about a continuation of the lockdown will probably be taken in the last week of January). Also, there is the question of travel an hotel arrangements for candidates from outside Munich…

    In my opinion the written exam is more important than the oral exam, as it can better show understanding of the issues. I can not imagine how to hold it online or with the candidates in single rooms. Online has problems regarding fairness (who can supervise what the candidates are actually doing? is it really feasible to write this using a word processor in the time given?), in single rooms can probably not be organized (e.g ensuring the correct timing of the exam and so on, which would easily lead to cries of unfairness).
    Lastly (@Krull and @Shapiro), while this may be astonishing, there are regularly candidates who use “inadmissibly altered” legal texts (maybe they try to cheat, but probably work just so sloppy, that they can not follow the guidelines on what is admissible), which of course leads to 0 points in that particular exam. There are also some who try to continue writing after the end of the exam, hoping that a minute or so will make a difference. The majority of course would not even think about doing this.

    1. As another member of the Examining Committee who has participated in the rescheduled oral exam last June, I have to agree. IMHO, the staff of the GPTO and the members of the Patent Court are trying to do their best to cope with the uncertainties of the situation.

      While exams are presently possible, our Bavarian Prime Minister has repeatedly stated that the Covid-19 measure may become even stricter. That is, he might decide to suspend exams anytime he chooses.

      Having studied for the exam for more than 8 months, it seems unlikely that postponing the exam until e.g. April will require candidates to start their preparations from scratch. This was of course different when the EQE was postponed for one full year.

      1. To Anonymous JANUARY 12, 2021 AT 11:53 AM and JANUARY 13, 2021 AT 2:57 PM:
        Your wrote that “the written exam would have started on Feb. 1st – the day after the current lockdown. Possibly the idea behind postponing the exam now was to avoid having to do this on really short notice (after all, the decision about a continuation of the lockdown will probably be taken in the last week of January).”

        What I do not understand is that right now the oral exam for the juristic state examination takes place. And after I talked with the Landesjustizprüfungsamt there is according to the Landesjustizprüfungsamt no reason to postbone or cancel that exam, even if it would have been the written examen. Further the written juristic state examination shall take place in March 21 as scheduled. And the written exame in December 20 took also place as scheduled.

        So why is it possible to arrange a Examn for a few hundred examinees at on side and on the other side it is not possible to arrange a Examn for about 55 examinees. For sure with a corresponding hygiene concept!

        By the way: That is the link for the dates of the juristic state exam:
        https://www.justiz.bayern.de/pruefungsamt/ljpa/mdl.htm

  5. Dear Thorsten,

    You might think that the candidates for the German Qualification Exam have been taken for a ride, but I would say that this is also the case of cand9idates for the EQE.

    The EQE 20 has been postponed due to COVID but the new EQE is to be held in electronic form. It is a disgrace that the candidates were only informed two months ahead of the exam of the new system which will be used for the exam. This is actually a disgrace.

    I do not want to say what is worse and I would rather consider that the both the EPO and the GPTO are on a par when it comes to respect of candidates to their respective exams.

    At the EPO it may even be a bit worse in that it corresponds to frenzy of the president wanting to have everything in electronic form, starting with OP. That the BA even encourage this move is also a very disturbing, but after G 3/19 one cannot expect anything better.

    I have strong doubts that the president of the EPO and the BOAC have the power to modify the understanding of the EPC in such a drastic way. But since the AC of the EPO is gullible to anything produced on the 10th floor, one should not be surprised.

    But I still would like to know what the hidden agenda of the two last presidents of the EPO is.

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