View source for Representation before the European Patent Office

[[File:Badge of a European Patent Attorney, issued by the European Patent Office.jpeg|thumb|Badge of a European patent attorney with the fingerprint logo of the EPO. It serves for identifying the carrier at entry to the EPO premises and as an authorization for attending any legal proceedings in patent matters at the EPO.]]
The [[European Patent Convention]] (EPC), the multilateral [[treaty]] providing the legal system according to which European patents are granted, contains provisions regarding whether a [[natural person|natural]] or [[juristic person]] (i.e., a party to the proceedings) needs to be represented in proceedings before the [[European Patent Office]] (EPO).

== General rule and exceptions ==
There is no general obligation for a party to be represented by a professional representative to act in proceedings before the EPO. However, a person not having either their residence or place of business within the territory of one of the EPC Contracting States (a "non-European party") "must be represented by a professional representative and act through him in all proceedings", except for filing a European patent application.<ref>{{EPC Article|133|2}}</ref><ref name="G4/95-pt.5">[https://new.epo.org/en/boards-of-appeal/decisions/g950004ep1.html G 4/95], point 5</ref> Proceedings include [[grant procedure before the European Patent Office|grant proceedings]] (as [[patent application|applicant]]), [[opposition procedure before the European Patent Office|opposition proceedings]] (as patentee, opponent or intervener pursuant to {{EPC Article|105}}), [[limitation and revocation procedures before the European Patent Office|limitation and revocation proceedings]] (as patentee), and [[appeal procedure before the European Patent Office|appeal proceedings]] (as appellant or respondent).<ref>{{EPC Article|133|1}}</ref>

Representation of persons who must be represented and persons who need not be represented but want to be represented must be by a professional representative, or, if the party is a "European party", the representation may be by an authorised employee<ref name="G4/95-pt.5"/><ref>{{EPC Article|133|3}}</ref> or by a [[legal practitioner]].<ref name="134(8)">{{EPC Article|134|8}}.</ref> A legal practitioner representing a party before the EPO must be qualified in an EPC Contracting State, must have his place of business in that State, and must be entitled in that State to act as a professional representative in patent matters.<ref name="134(8)"/> Both authorised employees and legal practitioners "must file a signed authorisation or a reference to a general authorisation already on file".<ref>[http://archive.epo.org/epo/pubs/oj007/08_07/special_edition_3_epc_2000_decisions.pdf Special edition No. 3, OJ EPO 2007], p.128: Decision of the President of the European Patent Office dated 12 July 2007 on the filing of authorisations, Articles 2 and 3.</ref> Subject to these rules, a party has the right to be represented in the manner he chose.<ref>See for instance [http://www.epo.org/law-practice/case-law-appeals/pdf/t081687eu1.pdf Decision T 1687/08 of the Technical Board of Appeal 3.5.02 of 9 November 2011], Reasons for the Decision 2.3, penultimate sentence.</ref>

== Professional representatives ==
Professional representatives bear the title of ''European [[patent attorney]]''. In order to be a European patent attorney, one must:<ref>{{EPC Article|134|2}}</ref>
* be a national of one of the EPC Contracting States (the President of the EPO may grant exemptions "in special circumstances"<ref name="134(7)">{{EPC Article|134|7}}</ref>); and
* have a place of business in one of the EPC Contracting States; and
* have passed the European qualifying examination (EQE); or
Formerly being a qualified or experienced patent attorney at the entry into force of the EPC in their state provided exemption from passing the EQEs (known as the "grandfather clause"<ref>{{EPC Article|163}}</ref>). In December 1998, the ratio of registrations under the grandfather clause to those having passed the EQE was two to one.<ref>D. Visser, The Annotated European Patent Convention 2000, 15th Edition, (Veldhoven, The Netherlands, 2007), p. 321.</ref>  On 29 November 2000, this clause was removed from the EPC.<ref>[http://www.epo.org/law-practice/legal-texts/html/epc/2010/e/apxi.html ''EPC Transitional Provisions'']</ref>

In order to sit the EQE, candidates should notably show that "they possess a university-level scientific or technical qualification."<ref>{{cite web|url=http://www.epo.org/law-practice/legal-texts/official-journal/2014/etc/se2/p2.html|title=Regulation on the European qualifying examination for professional representatives|date=19 February 2014|work=Official Journal Supplementary publication 2, 2014|publisher=EPO|accessdate=26 December 2015}} (Article 11(1)(a) REE)</ref> An equivalent level of scientific or technical knowledge obtained through at least ten years' experience is also considered sufficient.<ref>[http://www.epo.org/law-practice/legal-texts/official-journal/2014/etc/se2/p2.html Article 11(1)(a) REE] and [http://www.epo.org/law-practice/legal-texts/official-journal/2014/etc/se2/p18.html Rule 14 IPREE]</ref>

=== Pre-examination ===
Starting 2012, after 2 years of related work experience, candidates can sit the pre-examination, which is a 4-hour multiple choice exam held once a year.  The pre-examination assesses candidates' ability to answer legal questions and questions relating to the drafting of claims (IPREE, Rule 10). A passing grade of 70 marks out of 100 must be achieved to be permitted to write the main exam (EQE) one year later (IPREE, Rule 6).

=== European qualifying examination ===
The main European qualifying examination (EQE) is a multi-day examination, comprising four papers, for each of which there is at least one exam.  Due to the introduction of the pre-examination in 2012, starting 2013, three papers of the main exam are shorter than their previous formats so that the EQE now consists of the following papers:

* Paper A (4 hours<ref name="Decision-17.11.2016">{{cite web|url=https://www.epo.org/law-practice/legal-texts/official-journal/2017/etc/se2/p43.html|title=Regulation on the European qualifying examination for professional representatives - Decision of the Supervisory Board of 17 November 2016|last=Mercer|first=Chris|date=22 February 2017|work=Supplementary publication 2 – OJ EPO 2017|publisher=EPO|accessdate=3 March 2017}}</ref>) consists in drafting [[claim (patent)|claim]]s and the introduction (field of the invention, prior art, problem to be solved and its solution) of a European patent application, on the basis of the fictitious letter by a client describing an [[invention]] and the related [[prior art]].<ref name="guide-p13">[http://www.eqe-online.org/forum/attachment.php?attachmentid=501&d=1379416135 European qualifying examination, Guide for preparation, 3rd edition] (September 2013), p. 13.</ref>
* Paper B (3½ hours<ref name="Decision-17.11.2016"/>) consists in preparing a reply to an official communication of an Examining Division raising substantive objections to a patent application, such [[novelty (patent)|novelty]] and [[inventive step under the European Patent Convention|inventive step]] objections. The reply is to be prepared based on fictitious instructions from a client. The [[problem-and-solution approach]] must typically be used.<ref name="guide-p13-14">European qualifying examination, Guide for preparation, 3rd edition (September 2013), p. 13-14.</ref>
* Paper C (5½ hours<ref name="Decision-17.11.2016"/>) consists in drafting a notice of opposition to a European patent. The exercise is based on a fictitious letter from a client, a European patent to be opposed, several documents and an EPO opposition form. For paper C also, the problem-and-solution approach must typically be used for the inventive step assessment(s).<ref name="guide-p14">European qualifying examination, Guide for preparation, 3rd edition (September 2013), p. 14.</ref>
* Paper D (5½ hours<ref name="Decision-17.11.2016"/>) consists in a series of legal questions on the EPC and the [[Patent Cooperation Treaty]] (PCT); and a legal case usually requiring analyzing the legal situation of a client and proposing actions to be undertaken to cope with the situation.<ref name="guide-p15">European qualifying examination, Guide for preparation, 3rd edition (September 2013), p. 15.</ref>

The European qualifying examination is held once a year, usually at the end of February or beginning of March,<ref>European qualifying examination, Guide for preparation, 3rd edition (September 2013), p. 10.</ref> simultaneously in various cities throughout Europe.<ref name="guide-p11">European qualifying examination, Guide for preparation, 3rd edition (September 2013), p. 11.</ref> In 2013 for instance, it was held in [[Berlin]], [[Bern]], [[Bristol]], [[Helsinki]], [[Madrid]], [[Munich]], [[Paris]], [[Rome]], [[Stockholm]], [[Taastrup]] and [[The Hague]].<ref name="guide-p11"/> Dictionaries and reference material can be used during the examination "as long as they are in paper form".<ref name="guide-p11"/> The use of electronic devices is however not permitted.<ref name="guide-p11"/>

The marking of the Paper C of the EQE 2007, including awarding no point when candidates failed to select the "right" starting document{{#tag:ref|When assessing the inventive step of claim (defining an invention in a patent or patent application), the practice at the EPO is to use the so-called "[[problem-solution approach]]", which includes a step of selecting of one piece of [[prior art]] as the closest prior art, i.e. the starting point for the inventive step assessment.|group=notes}} (for assessing the inventive step of some claims) and the blanket addition of 10 points to the grade of all C papers, was strongly criticized.<ref>S. Roberts, [http://www.patentepi.com/uploads/media/epi_04_2007.pdf ''Comments on Paper C of the 2007 European Qualifying Examination''], [[epi Information]] 4/2007, pp. 153-155.</ref><ref>Decisions [http://www.epo.org/law-practice/case-law-appeals/recent/d070006eu1.html D 6/07], [http://www.epo.org/law-practice/case-law-appeals/recent/d070012eu1.html D 12/07], [http://www.epo.org/law-practice/case-law-appeals/recent/d070017eu1.html D 17/07], [http://www.epo.org/law-practice/case-law-appeals/recent/d070043eu1.html D 43/07] of the Disciplinary Board of Appeal of 28 August 2008.</ref><ref>{{in lang|fr}} Laurent Teyssedre, [http://europeanpatentcaselaw.blogspot.com/2008/09/notation-c-2007-premire-dcision-de.html ''Notation C 2007 : première décision de recours''], Le blog du droit européen des brevets, September 17, 2008. Consulted on September 17, 2008.</ref>

In 2021, the EQE was held online for the first time. A proposal to change the format of the EQE exams into a modular system, held online with some exams being available more than once a year, was discussed at a conference of the European Patent Institute on 21 June, 2021.<ref>{{cite web |url=https://www.epi-learning.org/course/view.php?id=26 |title = Course: e:EQE Discussion paper}}</ref>

=== Statistics ===
As of November 2010, there were a little more than 10,000 persons on the list of professional representatives, "just less than 1500" "legal practitioners entitled to represent before the EPO", and "about 300 patent law firms, which are registered as „associations of representatives“ within the meaning of {{EPC Rule|152|11}}".<ref>K. Finnilä, T. Johnson, [http://www.patentepi.com/uploads/media/2011_01_epi_info.pdf "Interview with Hans-Christian Haugg Director, Legal Division, EPO, Munich, 22 November 2010"], epi Information 1/2011</ref> As of January 2013, there were precisely 10,427 professional representatives.<ref>{{cite journal |title=List of Professional Representatives as at 19.01.2013 by their place of business or employment in the Contracting States |journal=Epi Information |issue=1/2013 |page=16 |publisher=Carl Heymanns Verlag |url=http://www.patentepi.com/flipbooks/epi-Info_2013-01/epi-info_01-2013.html |accessdate=November 8, 2013}}</ref>

===Association of representatives===
Under {{EPC Rule|152|11}}, an association of professional representatives may be formed to collectively represent a party or parties before the EPO. In such a case, the authorisation of an association of representatives is deemed to apply to any representative who practises within the association.<ref>{{EPC Rule|152|11}}</ref> The Legal Division of the EPO is in charge of the registration of associations.<ref name="notice 28 August 2013">[http://internet-i.epo.org/law-practice/legal-texts/official-journal/information-epo/archive/20131104.html Notice from the European Patent Office dated 28 August 2013 on matters concerning representation before the EPO], Official Journal EPO 11/2013, p. 535</ref> The registration is free of charge.<ref name="notice 28 August 2013"/>

== Change of representation  ==
The "procedure to be followed [with respect to a change of representation] is governed by {{EPC Rule|152}} in combination with the Decision of the President of the European Patent Office dated 12 July 2007 on the filing of authorisations."<ref name="T 0267/08"> [http://www.epo.org/law-practice/case-law-appeals/recent/t080267eu1.html Board of decision T 0267/08 of 29 November 2010], Reasons for the Decision 2.2.</ref><ref name="decision-L.1">[http://archive.epo.org/epo/pubs/oj007/08_07/special_edition_3_epc_2000_decisions.pdf Special edition No. 3, OJ EPO 2007], p.128: Decision of the President of the European Patent Office dated 12 July 2007 on the filing of authorisations.</ref> "Rule 152(1) sets out that the President shall determine the cases in which an authorisation shall be filed,"<ref name="T 0267/08"/> whereas "Rule 152(2) sets out that where a representative fails to file such an authorisation, the EPO shall invite him to do so within a period to be specified."<ref name="T 0267/08"/> "The Decision of the President ... states that in cases of a change of representation, and where the EPO has not been notified of the termination of the previous representative's authorisation, "the new representative must file, together with the notification of his appointment, an individual authorisation (original and one copy) or a reference to a general authorisation already on file. If he does not, he shall be requested to do so within a period to be specified by the European Patent Office.""<ref name="T 0267/08"/> The legal consequence of not filing an authorisation when requested to do so is that the procedural steps taken by the new representative are deemed not to have been taken.<ref>{{EPC Rule|152|6}}; see also [http://www.epo.org/law-practice/case-law-appeals/recent/t080267eu1.html Board of decision T 0267/08 of 29 November 2010], Reasons for the Decision 8.</ref> Authorisations, like [[priority document]]s, cannot be validly filed by facsimile.<ref>[http://archive.epo.org/epo/pubs/oj007/08_07/special_edition_3_epc_2000_decisions.pdf Special edition No. 3, OJ EPO 2007], p.7: Decision of the President of the European Patent Office dated 12 July 2007 concerning the filing of patent applications and other documents by facsimile, Article 3; and {{EPO Guidelines|a|viii|2|5}}: "Filing of subsequent documents".</ref> An original version of the authorisation has to be filed.<ref name="decision-L.1"/>

== See also ==
* [[G 4/95]], a decision of the Enlarged Board of Appeal of the EPO, which deals with submissions by accompanying persons in addition to the submissions made by the professional representative appointed by the party
* [[Centre for International Intellectual Property Studies]] (CEIPI)
* [[USPTO registration examination]]

==Notes==
{{reflist|group=notes}}

== References ==
{{reflist|30em}}

== External links ==
* [http://www.epo.org/patents/Grant-procedure/representatives.html Database of professional representatives] on the European Patent Office (EPO) web site
* {{EPO Guidelines|a|viii|1}}: "Representation"
* {{EPO Case law book 2019|iii|v}}: "Representation"
* [https://www.wipo.int/pct/en/guide/ PCT Applicant’s Guide] 

{{European Patent Organisation}}

[[Category:European Patent Organisation]]