UK trainee patent attorneys are due to receive the results of their PEB Qualifying Examinations on Monday (4 March 2019). Candidates who took the FD4 (P6, Infringement and Validity) today received notification that the pass mark of this year's paper has been reduced to 47% (from 50%) in view of a significant drop in candidates achieving a pass mark.
The full letter is as follows:
FD4 (P6) is notoriously difficult. Many patent attorneys fail the examination multiple times, even after becoming fully qualified European Patent Attorneys. The five hour exam requires candidates to read and understand a patent specification, construe all of the claims and produce an infringement and validity opinion in view of ~3 prior art documents and a description of a potentially infringing product. One of the primary difficulties is finishing the paper. Many candidates employ their own language of symbols to save valuable seconds when writing their answer scripts.
From anecdotal reports, it seems that this year, time was particularly constrained. There were 2 independent claims to different products and multiple embodiment of the potentially infringing product. The invention was also not a simple one to understand. This year's paper was arguably made even more challenging by the introduction on the syllabus for the first time of the principles of the doctrine of equivalents as established by Lord Neuberger in Actavis v Eli Lilly (which even UK judges are still working out how to apply...). The PEB did not side-step this issue but included an infringing embodiment that clearly required a consideration of equivalents.
The letter from the PEB mentions that this year's pass rate is statistically lower that the mean of the past 4 years (41%). Given that this average includes the low pass rate of 2015 ("Insect Trap") of 38%, this begs the question of how low the original pass rate was this year, lower than the 36% of 2012 ("Clothes Dryer Cover")? At least this year, it seems that the PEB appear are making some attempt at redress.
Issues with P6 have been previously recognized. In 2015 ("Insect Trap"), the Quality Assurance Agency (QAA) of the Patent Examination Board (PEB), recommended to the PEB that they investigate the poor candidate success rate over a number of years in the P6 examination. This resulted in an investigation by Middlesex University, published here. The report took the form of a questionnaire of candidates and tutors. There were "mixed views" about the fairness of the FD4/P6 exam in terms of the technical content (i.e. whether it is biased towards those with a mechanical training), the adequacy of tutor support, and "whether the FD4/P6 exam appropriately tests knowledge and skills in infringement and validity".
Following today's letter, P6 candidates have a nervous weekend ahead of them. The letter also comes at the unfortunate time of the first day of the European Qualifying Examinations (EQEs).
The IPKat wishes everyone the best of luck!
Update (4 March 2019): According to the Examiner's Report, the pass rate this year , even once the pass mark was reduced to 47%, was 33.8%. The Report does not explore the reasons why the pass rate was so low this year. However, this Kat speculates that the low pass rate was due to the unusually high number of marks allocated to Inventive Step (25 marks) compared to the relatively low number of marks allocated to Infringement (14 marks).
The full letter is as follows:
"Dear Candidate
You will shortly receive the results for the PEB Final examination(s) that you took in October 2018.
At the Awarding meeting for Final Diploma examinations, analysis of marks showed that there was a statistically significant fall in the pass rate for the FD4 examination compared to the mean pass rate for the years 2014-2017 (41%). This fall may be a result of the technical content of the examination paper.
It was therefore decided to determine the pass mark for the FD4 exam by ‘borderlining’. Starting with a scripts with a mark of 49 and working down, scripts are reviewed to determine whether these scripts meet the ‘minimum pass descriptor’(1). The process stops at the mark where there is secure evidence that scripts do not meet the ‘minimum pass descriptor’. As a result of this process, the pass mark was judged to be 47 by contrast to the normal pass mark of 50.
PEB applies thorough and detailed quality assurance processes when question papers are produced, including review by experienced patent attorneys and pre-testing. Unfortunately, on this occasion, the FD4 issue was not identified. We would like to reassure you that PEB is fully reviewing its procedures with a view to minimising the likelihood of this happening again.
Please accept our apologies that this has occurred and for any distress that might have been caused to you.
(1) The Marking of Qualifying Examinations (Appendix 1) (http://www.cipa.org.uk/patent-examination-board/communications/general-communications/)"
 |
| Awaiting P6 results |
From anecdotal reports, it seems that this year, time was particularly constrained. There were 2 independent claims to different products and multiple embodiment of the potentially infringing product. The invention was also not a simple one to understand. This year's paper was arguably made even more challenging by the introduction on the syllabus for the first time of the principles of the doctrine of equivalents as established by Lord Neuberger in Actavis v Eli Lilly (which even UK judges are still working out how to apply...). The PEB did not side-step this issue but included an infringing embodiment that clearly required a consideration of equivalents.
The letter from the PEB mentions that this year's pass rate is statistically lower that the mean of the past 4 years (41%). Given that this average includes the low pass rate of 2015 ("Insect Trap") of 38%, this begs the question of how low the original pass rate was this year, lower than the 36% of 2012 ("Clothes Dryer Cover")? At least this year, it seems that the PEB appear are making some attempt at redress.
Issues with P6 have been previously recognized. In 2015 ("Insect Trap"), the Quality Assurance Agency (QAA) of the Patent Examination Board (PEB), recommended to the PEB that they investigate the poor candidate success rate over a number of years in the P6 examination. This resulted in an investigation by Middlesex University, published here. The report took the form of a questionnaire of candidates and tutors. There were "mixed views" about the fairness of the FD4/P6 exam in terms of the technical content (i.e. whether it is biased towards those with a mechanical training), the adequacy of tutor support, and "whether the FD4/P6 exam appropriately tests knowledge and skills in infringement and validity".
Following today's letter, P6 candidates have a nervous weekend ahead of them. The letter also comes at the unfortunate time of the first day of the European Qualifying Examinations (EQEs).
The IPKat wishes everyone the best of luck!
Update (4 March 2019): According to the Examiner's Report, the pass rate this year , even once the pass mark was reduced to 47%, was 33.8%. The Report does not explore the reasons why the pass rate was so low this year. However, this Kat speculates that the low pass rate was due to the unusually high number of marks allocated to Inventive Step (25 marks) compared to the relatively low number of marks allocated to Infringement (14 marks).
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