Gantry-Gate: Have your say in the Mercer Review

The UK patent attorney exam P6/FD4 (Infringement and validity) has a notoriously low pass rate. The problem with P6/FD4 is not merely that it is a difficult exam. P6/FD4 causes controversy because, despite the protestations of the Patent Examination Board (PEB), some believe that P6/FD4 fails to assess a candidate's fitness to practice. P6/FD4 has been accused by commentators (for example, here on IPKat) of holding back many in the profession whose competencies are clearly demonstrated by their day-to-day professional work. Many highly-experienced European Qualified attorneys fail FD4/P6 year after year. Can P6/FD4 really therefore be said to be fit for purpose?

In an effort to respond to the criticism levelled at P6/FD4, CIPA recently launched a review of patent attorney education and training in general, "The Mercer Review". The review is chaired by retired patent attorney and former EPI president, Chris Mercer. The Mercer Review is currently seeking comments from CIPA members, with a deadline of Valentine's Day 2020 (details of how to submit your comments are provided below). 

Gantry-Gate and the launch of the Mercer Review

Last year was a new low point for P6/FD4. The PEB was forced to reduce the pass mark of P6/FD4 2018 in view of an usually low pass rate, a process the PEB termed "borderlining". Even with the lowered pass mark, only 33.8% of candidates passed the paper.
Gantries, 2018

The lowering of the pass mark, and the less than sensitive way in which the "borderlining process" was announced (during EQE week), prompted considerable criticism (IPKat: BREAKING: 2018 FD4 (P6 - Infringement and Validity) Pass Mark Reduced). The strength of feeling against P6/FD4 was revealed by the hundreds of comments received here on IPKat. What was clear from these comments was not just the dissatisfaction with the way "Gantry-Gate" was handled, but the widespread frustration with P6/FD4 as an examination in general. In response to the backlash, the CIPA President announced that CIPA would be conducting a review of education and training (IPKat: Gantry-gate: CIPA releases statement on FD4/P6 (Infringement and Validity).

The review, christened the "Mercer Review of Training, Education and Assessment", was launched in December. CIPA members have been requested to submit their opinions to the Mercer Review by the 14 February 2020. The address for submitting responses is MercerReview@cipa.org.uk. The review is being chaired by Chris Mercer (Carpmaels and Ransford LLP). Details of the motivation behind the review can be read in January's edition of the CIPA journal. CIPA asks some very general questions, e.g. "Do you have any comments about the current knowledge, understanding and practice covered by the Final Diploma examination". Respondents are also encouraged to raised their own questions.

When beginning his review, Chris Mercer could do worse than taking a look at the IPKat comments (here and here). Readers who commented in March are encouraged to now submit their observations to the Mercer Review. As a starting point, here is a reminder of some of the main issues that were raised in the aftermath of Gantry-Gate.

The Middlesex Report

Many are frustrated that the previous review of patent attorney education, The Middlesex Report, was largely ignored by CIPA and the PEB. This previous and more narrow review identified serious failings in the examination system. Middlesex University was asked to look into the reasons for the low pass rate in the Final Diploma examinations (including P6/FD4). The report produced was damning. The papers were criticised for too much reliance on memorising obscure content, lack of relevance to professional work and inconsistent marking schemes.  However, little was done in the wake of the Middlesex Report to address these concerns.

Inadequate training and high fees

The training materials offered by PEB and CIPA are considered by many to be inadequate. The amount of training available to a candidates will be highly dependent on their employer, and whether the employer is prepared to pay for the expensive training courses. The provision of training is complicated by the fact that many patent attorneys who have scraped a pass in P6/FD4 consider themselves an expert in how to pass the exam. This leads to a Chinese whisper effect with respect to the correct exam technique. To this day, there are multiple (and contradictory) schools of thought with regards the "correct" way to approach P6/FD4 (do you construe every word? do you write an inventive step argument for every single claim? should you start writing after half an hour or two hours? how much time should you devote to DoE? do you get penalised for assessing inventive step by the problem-solution as opposed to Windsurfer/Pozzoli approach?).

Connected to the issue of training are the complaints about the ever increasing exam fees. Many firms will not pay for candidates to resit exams multiple times, forcing candidates to pay for resits out of their own pocket.

Fit for purpose?

Many commentators argue that P6/FD4 is not fit for purpose. The exam is criticised for not assessing whether a candidate is a competent attorney because of the form of the exam and the subject-matter of the inventions. Furthermore, a large number of European Qualified attorneys with many years of experience are none-the-less persistently incapable of passing P6/FD4.

Chris Mercer
The subject matter of P6/FD4 is always a mechanical invention. The examination has therefore often been criticised for favouring candidates who work in the mechanical field. Data provided by CIPA (from the Middlesex Report), purportedly showing that pass rates between technical fields was equivalent, were criticised. Quite simply, the sample sizes for these data was too small to draw any meaningful conclusions. In any case, one of the issues with the 2018 Gantries paper was undoubtedly the difficulty many candidates had in understanding the subject matter [Merpel is still not clear that she properly understands what a gantry is...]. One suggestion for preventing such an issue happening again in the future is for the papers to be stress-tested by recently qualified candidates from different technical backgrounds.

With regards to the relevance of the exam, there can be no doubt that an attorney who spends their entire professional life dealing with, for example, pharmaceutical or software inventions will find P6/FD4 largely irrelevant to their daily practice. This, in combination with the low pass rate, means that P6/FD4 isolates swathes of the profession. The risk of the CIPA qualification increasing in irrelevant is heightened by the fact that many attorneys in the pharma and biotech field primarily (if not exclusively) interact with the EPO as opposed to the UK IPO. Many European Qualified candidates in these technical fields who repeatedly fail the UK exams probably begin to ask themselves why they even need the UK qualification.

Switch to a university style exam ?

Some have suggested that the Final Diploma could be replaced with a university course. However, others argue that a university style examination would not necessarily solve the problem that the exams are not fit for purpose. The PEB papers are at least drafted by patent attorneys. A university professor of IP would have limited, if any, experience of drafting, prosecuting or of carrying out a infringement and validity opinion. A university, it is argued, would therefore not be in the best position to judge fitness for practice. On the other hand, a university could of course employ patent attorneys to run the course and set the exam. The difference from the Diploma would be that training would be consistent. Another alternative to the 5 hour closed-book P6/FD4 exam would be for the assessment of infringement and validity to take the form of coursework.

An inadequate appeal process

Should a candidate be unsatisfied with their mark in an examination, PEB offers an appeal process: the "Enquiry about results (EaR) policy". However, this process is expensive and appears to require Examiners to take only a cursory review of candidates paper. There are three stages to the review process. Crucially, at no point in this process does the candidate receive a copy of their marked exam script. (It is none-the-less possible to obtain a copy of your exam paper using a Freedom of Information (FOI) request. Such requests can be revealing, particularly with regards to the different marks awarded by different examiners for the same paper.)

At Stage One of the EoR, a candidate may pay ~£120 to have PEB check that they have counted up the candidates marks correctly. In other words, £120 for the Examiner to check that the number of ticks on the paper correspond to the final mark. Crucially, candidates are only informed if there is a change in their mark if that change makes the difference between a pass and fail.

At Stage Two, a candidate may pay a further ~£400 for a PEB examiner who was not involved in the original marking of the candidate's paper to review their paper. The outcome from this review is often far from satisfactory. From a number of anonymous sources, this Kat has seen Stage Two reviews that consist of no more than a short paragraph containing typos and general statements such as "Marking scheme ultimately applied fairly by examiners".

At Stage Three, a candidate may pay a further £500 to check whether the procedure in marking and the EoR has been followed correctly. In other words, Stage Three does not involve any further assessment of the candidate's answer.

The appeal process for the UK exams can be compared to that which is available to EQE candidates. A dissatisfied candidate can file (an admittedly expensive) appeal to the Disciplinary Appeal Board. They can then argue their case at oral proceedings, and receive a fully reasoned and written decision by a body independent from the Examination Board (see for example: IPKat: EQEs - don't speculate beyond the content of the paper (D 11/18)).

Have your say

IPKat understands that the problems with P6/FD4 is an emotive issue. The Mercer Review is hopefully an attempt by CIPA to acknowledge that there is a problem. The Review also attempts to address the issue of patent attorney education more broadly. Let's take this opportunity to provide constructive feedback and suggestions to CIPA, in the hope that CIPA are prepared to consider meaningful reform. Send your comments to MercerReview@cipa.org.uk. Those who wish to submit comments anonymously may also contact the CIPA Informals: informalsyellowsheet@gmail.com. The Informals have offered to collate submissions.

Update (7 Feb 2020): Many thanks to a Katfriend for providing a copy of the Middlesex Report! The full report can be read here. [If the link doesn't work, try a different browser]

Finally, here is one of this Kat's favourite comments from last year, provided by IPKat reader "Ron". Ron takes us on a tour of "P6 through the ages", reminding us that the problems with P6/FD4 go back a long way. Over to Ron:

"Since retiring, examinations are now only of academic interest: however, I have some sympathy with P6 candidates, having passed on my 11th attempt! I sat the very first P6 exam (the one where candidates were supplied with actual examples of the prior art paper clips etc.) and got 47%. I found that my paper clip exhibited no barbing action whatsoever, and noted the fact in my script; however I later heard through the grapevine that anyone not considering that the paper clip exhibited barbing action, would not pass. On testing various paper clips in the office, while some did exhibit a definite barbing action, others did not. Ironically, it is possible that, had I had a "barbing" paper clip (as the examiner presumably did), I might well have passed on my first attempt.

In subsequent years my P6 marks exhibited an almost perfect negative correlation between my increasing experience in real-life infringement and validity issues and my P6 marks. Part of my problem lay with the fact that my trainers taught the techniques they had successfully used when they had qualified, and fashions had changed.

One always used the "Table" method, where the answer could consist mainly of a table. Another used the method of breaking long claims into lettered sub-paragraphs for easier referencing of features. The year I tried this, examiners' comments said that this approach was calculated to annoy the examiner. Another year a fellow I was working with who had set and marked several of the pre-JEB I&V papers corresponding to P6, gave me a tutorial. His approach, which was indeed used by our Inns Of Court counsel, was to identify 5 or 6 key features and concentrate on them, only briefly addressing the minor points. I think I got 19% that year.

Then there was the oil seal question with its physically-impossible Escher-like drawings, one side of one figure showing upstanding ridges, the other side showing recessed valleys, with the lines depicting the peaks of the ridges of one side mysteriously turning into the valleys of the other side. I don't think the examiners liked my comment that the omnibus claim (covering the invention as shown in that figure of the drawings) couldn't possibly be infringed as it related to something that it was impossible to construct. That year my supervising attorney did complain to the JEB, but it transpired that the exam scripts had been destroyed by a secretary who needed the space. At least it did prompt them to institute an appeal procedure, having belatedly realised that none actually existed. The JEB could see nothing wrong with the drawings, which from my viewpoint as a professional engineer well versed in the production and reading of mechanical engineering drawings, was somewhat alarming. I did knock up from Plasticene in 10 minutes the two different configurations and two sets of drawings, one of which depicted what the JEB said was impossible to create using engineering drawing conventions. Quis custodiet ipsos custodes?

Then there was the brick question. The set of drawings in the copy of the question with examiner's comments that appeared in CIPA, differed from the drawings supplied to candidates, giving rise to doubt as to which set the examiners had based their marking on.

In the mid-1990's I attended the CIPA panel meeting to discuss P6 with students. The report in CIPA did not mention the disagreement between the panel as to the appropriate form of answer. One said that brief notes were all that was required, whereas another said that such notes should only be the basis for a more fully written-out answer. Attendees were left none the wiser as to what was required.

I passed when tutorials were organised, hosted by those actually doing the marking, so you could find out what style of answer was in fashion that year and give them what they wanted.

Back numbers of CIPA show that there was much criticism of the pre-JEB exams in the 1970's. Plus ça change, plus c'est la même chose."
Gantry-Gate: Have your say in the Mercer Review Gantry-Gate: Have your say in the Mercer Review Reviewed by Rose Hughes on Tuesday, February 04, 2020 Rating: 5

225 comments:

  1. Dear Rose and IPKAT.

    Please can you continue to post these sort of articles relating to exams as this is really a good platform for trainees, associates and experienced attorneys to share their thoughts on the exams. The formal response required by PEB may not always be appropriate.

    As for the topic, I think its a good thing that there is a review. However, we've had several reviews in the past before. Past performance by PEB/CIPA does not fill me with optimism that changes will indeed occur. Only time will tell if PEB/CIPA will do anything. My opinion is that the whole PEB examination needs an overhaul - not just FD4/P6 but FD1/P2 too.

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    1. I agree that the exams needs changing. I truly hope that CIPA/PEB will make changes quickly and Chris can implement changes.

      My firm is definitely not happy with how the exams are currently. We barely do any UK work and so many of us feel that these exams are a barrier to qualification. Unfortunately, it does affect our career progression and wages. We do very little UK work, about a few times a year so the hurdle on these PEB exams seem very disproportionate to me.

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    2. Devil's advocate::
      The less UK work you do the less likely you are to pass the exams (because of lack of experience of UK practice). If you did more UK work then you might be more likely to pass the exams. I would also suggest that if your firm does barely any UK work then it isn't necessary that every patent attorney is qualified as a UK attorney. Only a few UK attorneys would be required and everybody else could qualify solely as European attorneys.

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    3. I have to say that I agree its better for PEB to throw their training and effort at EQEs. This is where it is most needed as most attorneys do European work.

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    4. Logically I would agree with Devil's advocate comments. However, I do a decent amount of UK work and taken FD4 plenty of times. Each time, the marks get worse. Its becoming a handwriting test and i have no time to actually think in the exam. I wonder if it really is a test about fitness to practice.

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  2. "many patent attorneys who have scraped a pass in P6/FD4 consider themselves an expert in how to pass the exam" -I take exception to this. I never passed a back-paper before I took the exam. When I took it, I passed with 51%. This was surprising!

    The lack of decent training materials contributes to the feeling of a "lottery" when taking the exams. Why was my answer on the day good enough to pass when in training for the exam I never approached 50%?

    Decent training materials also help those who do pass to be confident that they are fit to practice and have not merely drawn this year's luck numbers!

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    1. From context the quote clearly means that those who have scraped a pass believe that they understand the exam well enough to pass on their views to trainees. So unless you've been tutoring P6/FD4, there's no need to take exception ;-)

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  3. This is a key comment from the above: "Part of my problem lay with the fact that my trainers taught the techniques they had successfully used when they had qualified, and fashions had changed".

    Many supervisors, and courses such as JDD, teach tactics such as construing claim features as "clear in context". Great technique for the real world. But a cursory glance at the mark scheme since PEB took over shows that they assign marks for construing every feature, and you cannot pass without attempting this. P6 is not about knowledge, it is about understanding the mark scheme and playing the game (although the skills required to do that probably are analogous to reading the Guidelines and playing the game - so maybe it does test real world skills after all?)

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    1. UK courses are extremely limited. I believe only JDD do FD4 but they are expensive and the pass rate for FD4 is still very low? Is their an annual review between tutors and examiners every year like they do at the EPO.

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  4. "This leads to a Chinese whisper effect with respect to the correct exam technique."

    Doesn't everyone use the Phil Barnes/Nigel Frankland technique? That's how I passed. And its pretty well know that every feature should be construed (though I agree this is irrational).

    "The risk of the CIPA qualification increasing in irrelevant is heightened by the fact that many attorneys in the pharma and biotech field primarily (if not exclusively) interact with the EPO as opposed to the UK IPO. Many European Qualified candidates in these technical fields who repeatedly fail the UK exams probably begin to ask themselves why they even need the UK qualification."

    If all you ever do is pure patent prosecution work in the role of an overseas associate of the firm that acts for the applicant, then yes, you will very rarely find yourself having to deal from first principles with questions of validity and infringement ("can I design around?", "can I amend to cover this product?", "can I invalidate these claims - and which claims do I need to invalidate?"). However, these are key questions in practice and P6/FD4 is the only exam - UK or European - that tests them.

    This is why P6/FD4 is essential, and it is also a likely reason why there are people who practice for a long time but cannot pass it.

    "On the other hand, a university could of course employ patent attorneys to run the course and set the exam. The difference from the Diploma would be that training would be consistent. Another alternative to the 5 hour closed-book P6/FD4 exam would be for the assessment of infringement and validity to take the form of coursework."

    A few points here:
    1) The idea that university courses ensure consistency flies in the face of the experience of any graduate.

    2) I did the masters at QM. The patent attorneys who taught that course - and I graduated long ago enough that none are now working - were abysmal teachers. One even repeated a (tedious) lecture they had already given a few weeks before and did not stop when this was pointed out to them: clearly he was just punching the clock and had nothing else to say, so we walked out in disgust. Then there was the very prominent (but now no longer with us) attorney who baldly told us that he did not value the MSc at all and we would be at the same level as any other candidate interviewing at their firm.

    There were also some very good lecturers who were not patent attorneys, but none of my class mates who made it into the profession who I have talked to about this felt that what they had been taught was of much use in practice.

    3) There is a very clear diversity issue with requiring everyone who wishes to qualify to attend the same course - a course that is unlikely to be taught at more than a handful of universities.

    "At Stage One of the EoR, a candidate may pay ~£120 to have PEB check that they have counted up the candidates marks correctly. In other words, £120 for the Examiner to check that the number of ticks on the paper correspond to the final mark. Crucially, candidates are only informed if there is a change in their mark if that change makes the difference between a pass and fail."

    This is probably a recent change, since when I appealed after narrowly failing the amendments paper on my first attempt I was told that my mark had changed (from 47% to 48%). It is indeed galling to have to pay £120 simply for them to add up the marks again - and then be told that they had got it wrong but it didn't matter!

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    1. "And its pretty well know that every feature should be construed (though I agree this is irrational)."

      You will be disappointed to discover that some of the expensive JDDs courses actively encourage candidates to not construe all of the claimed features. Even for claim 1. Fortunately candidates talk to each other, and this misinformation does not affect pass rates as much as you would expect. Nevertheless, there are many capable candidates who adopt this approach because they trust the advice that they have received, and fail as a result.

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    2. I think I'd add one more rider to this: requiring the candidate to construe ever feature is unrealistic, but in the context of an exam where construction has a knock-on effect on everything else, it is defensible to have some hard points of construction for which getting the "wrong" answer does not double-punish the examinee later on when they get to novelty/inventive step.

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  5. Even the supposedly "new low" pass rate of 33.3% is still much higher than was the norm back in my day.

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    1. It would be interesting to see how pass rates have varied. We have easy access back to 2005, but I haven't seen earlier results. Mind you, if the examiners are to be believed, the low pass rate back in the day was due to poorly prepared candidates.

      The '97 examiner was particularly damning: "... it would appear that many candidates, particularly those who have been unsuccessful, are of the opinion that the paper sets an unrealistically high standard with the objective of keeping the pass rate low... The reason why so many candidates fail this paper appears to be because they are ill-prepared, particularly on the first attempt, and the quality of some submissions demonstrates this all too clearly".

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    2. Is there a reason why PEB/CIPA feels the need to fail most candidates. I truly believe its to keep people out of the profession. I don't believe 70-75% of candidates who fail are not fit to practice. Doesn't make sense so the problem must be the exams.

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    3. It is pretty simple. PEB aim to achieve a "budget surplus of 200,000 in 5 Years". More resits = more money. I think they are two/three years in so far.

      This information is buried on the CIPA website. Its actually a disgrace.

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    4. I'm no longer shock at Examiner's comments accusing candidate of being ill-prepared or sat the exams too early or stating that it is obvious to do it this way. Please - 75% of candidates cannot be ill-prepared.

      I wish they just listen - the current exams do not reflect modern day practices anymore.

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  6. This email reminds me of the very first CIPA Academic post-exam committee meeting that I attended, many moons ago. Concerns were expressed then about the very high failure rate on one paper. Candidates had failed, almost en masse, a question concerned with patenting in China. One member asked "Why is 'patenting in China' on the examination paper if it is not included in the syllabus?" Answer: "Because it is very important that patent agents (sic) know about patenting in China". EEEK!!! As the innocent (non-patent agent) academic present I reminded the committee of the adage drummed into university academics at exam writing time: Teach what you test, test what you teach.
    The message seemed to fall on listening ears, but that was a while ago. Perhaps it needs to be reinforced in its stark simplicity that the professional body should ensure the syllabus covers what a patent attorney needs to know and is delivered in such a way that future patent exams will reflect CIPA (or its delegates) teaching what it tests, and testing what it teaches.

    Professor Ruth Soetendorp

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  7. There are lots of problems with P6/FD4 but for me the key one is that there is a gulf of (mis)understanding between those who have passed the paper and those who have yet to pass it. From my experience of taking the exam and tutoring people, the people who are involved in setting the paper do not understand why the pass mark is low and what the issues are. CIPA people who I have met who are involved with setting exams seem dismissive of the problems that this paper causes. One key issue is confidence and an ability to cope with all the ambiguity.
    If you are unlucky enough to fail it a couple of times, the likelihood is that you will continue to fail it and with ever decreasing marks.
    Issues with the exam are:
    - the papers are overly complex. Rather than just testing someone's ability to interpret a document and advise on infringement and invalidity, other issues are thrown in too. This makes me think that the people who set the exam do not understand what the main purpose of the exam is. They should endeavour to keep it much simpler.
    - because of these additional issues, it is nigh on impossible to achieve more than 80 marks as the exam papers are unnecessarily complicated. Thus the pass mark is effectively 50 out of a reachable 80 mark and so is over actually 60%. A better approach would be to mark on a bell curve, as is done with the patent administrator exam.
    - candidates generally speaking will have never written an exam answer like this before. It is effectively an essay paper with no right or wrong answer. This is an alien concept to scientists who are used to things being right or wrong;
    - patent attorneys generally are hopeless at helping candidates through this exam. My experience was that in tutorials, I was told what I was doing wrong and what I should do instead. Only in my last tutorial was I told what I was doing right and this gave me the confidence to pass.

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  8. Many years ago, I attended a "Train the Trainers" day-long event in Berlin, organised by the EPO's Patent Academy. During the day, it became evident, what a huge advantage is enjoyed by candidates being trained at the big prosecution firms.

    For the UK exams, how do the trainers acquire the qualification and experience to get candidates through the qualifying exams?

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    1. I've worked in both private practice and industry so I hope to shed a light on the differences in training.

      Most trainees in private practice firm rely on their manager (often only one) which means that most of their learning is from one person. This can be good or bad but I know people have negative experiences with their managers. Some want to teach but billing comes first. Most attorneys frankly do not want to teach. One attorney told me that if they wanted to teach, they would've entered the teaching profession. They have a point - they are not teachers. Some can't be bothered and the trainee is often left to learn on their own. Trainees in private practice generally get one shot at it and possibly one retake and they need to sit it as early as possible to increase their billing hours.

      Industry training is also poor for UK exams but much better for EQEs. The company I worked at are only interested in EQEs. There was no UK work so they didn't want to spend resources into getting trainees UK qualified which is understandable.

      I feel that the training system in the UK is broken and the advanced PEB exams really do not relate to real life work at all. I'm in favour of a open book FD1 exam with weekly in depth lectures on FD1 topics run by attorneys. I think most firms would be open to paying for this. I feel the PEB webinars are too broad and general.

      For FD4, I am in favour of coursework based assessment. We recently had work on infringement and validity and this involved many things such as DD, fund raising which took several weeks and not 5 hours. It would be better to set a coursework type so that candidates can understand in depth the issues whilst making it relate to real life practices. This would be more a appropriate test.

      Many people I know who've passed FD4 are still not confident. Maybe this is reflected in why so many attorneys do not wish to teach FD4 or avoid infringement and validity type work.

      Get rid of FD2/FD3. EQEs exams are adequate. My advice is to focus on EQEs first to all candidates.

      A small number of private practice firms are beginning to recognise EQEs only so career progression is not affected by one's ability to pass UK finals.

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    2. Most trainees in private practice firm rely on their manager (often only one) which means that most of their learning is from one person.

      This may be true in smaller firms but the bigger ones are moving away from a Master & Apprentice model. Training is then delegated to those more recently qualified, many of whom are still not confident with FD4.

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    3. Worth noting here that the pass rate amongst UK candidates for the EQEs is the highest of any substantially-sized national group (i.e., excluding the countries which have so few people taking the exam that a 100% pass rate is possible).

      Whatever the UK profession is doing differently to other countries in Europe, I cannot see that it is worse. Personally, I think the mindset instilled by the UK exams does help - other European countries have much easier national exams.

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    4. FD4 is a real problem that even those who pass - many do not feel like they are confident enough to teach the next generation or to advise their clients. The exams are having the opposite effect which PEB/CIPA need to get to grips with. If you are unsure how you managed to pass FD4 (like me) but just glad you did, there is no way that I feel comfortable advising clients based on a 5 hour exam which I happened to get lucky with.

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  9. The biggest issue for FD4/P6 is time. Why set an exam where 90& of students are so rushed for time. No space for thinking time. Extending time DOES NOT make it better as these exams are already too long. No one can think like that for 5 hours. They need to reduce content and reduce the exam time.

    Also - I can say that I do not feel confident at all giving any advice on infringement and validity to clients after failing multiple times doing this exam. I eventually got it on my 7th attempt but do not feel at ease with it. It actually destroys your confidence.

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  10. It doesn't make sense why the profession is so insistent on rigorously testing "fit for practice" exams when the exams themselves bear no resemblance to the day to day work. For example, CIPA/PEB make you do a litigation course (presumably to generate some income) for a week but no one in their right minds would start ligating without any experience in a firm.

    They make you sit FD4/P6 for 5 hours and with a bit of luck, you've passed. No one in their right minds would start dishing out infringement and validity advice in court. These things are ONLY gained from work experience.

    You sit FD1/P2 and pass (which by the way I think should be open book). No one is going to start opening up an attorney firm the day after they pass as CIPA/PEB always suggest. It is better to have an experience cap even if you do pass exams like after 5 years in the profession before you can register as a sole practioner.

    These PEB exams especially FD4/P6 are based on luck. They are not fit for purpose.

    CIPA/PEB seems to think that if people pass exams they can do whatever they like - Not the case in real life. You still need plenty of practice and in my experience, the only real valuable thing is learning on the job. That is why I am in favour of getting rid of the UK exams altogether and find another way of testing. Its meant to be confirmative exams to check that you know rather than a barrier to people's careers.

    I hope PEB will change but my trust in them is low. We've had so many reviews about exams procedures and progress over the years and nothing has changed.

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  11. Training is very poor in this profession especially for FD4/P6. CIPA/PEB do nothing to help. Please look at EPO where they provide a lot of materials. Some are charged but some are free. CEIPI courses and Delta Patents are brilliant.

    In the UK, we only really have JDD but the amount of students that pass is VERY low. Maybe we need to look at all training courses to see why it has not improved the pass rate.

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  12. The exams themselves needs changing. Examiners are very inconsistent with their marking scheme every year. I also think they are too harsh in their marking. They need to remember that students are under incredible pressure. They don't need to mark "word for word" in what is on the mark scheme. In my mind, as long as the candidate provide sound advice or is writing on the right lines (no need to exactly quote the words of the law for FD1/P2) - they should get the marks. Everyone gives different advice so if the advice is not correct in view of the law, why shouldn't they get marks for it. The examiners are too rigid in sticking to what's on the mark scheme.

    As a side note, I start to note that many firms put clauses in contracts that they are no longer willing to pay for resists or worse, be out of a job for failing. This can only add to stresses and worries to candidates.

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  13. Has anyone questioned the impartiality of the panel collating and presenting these answers? I have reason to believe a number of the board/panel are current PEB examiners.

    Is this another cover up operation?

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    1. It is unclear who is on the panel other than Chris Mercer, who is an ex-PEB Examiner and runs his own private FD4 training courses. If this was a client matter there would be a serious case of conflict.....

      Delete
  14. The impact of P6/FD4 on the mental health of candidates cannot be overstated. The exam is capricious and destroys the confidence of perfectly capable practitioners. It also fails to reflect real life, especially for non-engineers.

    Those in big firms may receive some extra support but they are also under the threat of dismissal for "failure to pass professional examinations in a reasonable timeframe". Many firms will only pay the first time around, both for exams and relevant courses. In general the extra support from the firms themselves is of limited use, since those attorneys who have passed are either unaware of the reasons why they themselves passed or passed so long ago that their techniques are outdated or out of favour with examiners.

    Those in-house or in small firms receive less support and are often left to deal with the exam alone. CIPA tutorials etc are useful but there is often conflicting advice. JDD courses are expensive and may be difficult to justify to employers.

    Similarly P2 is unrealistic since no one in their right mind gives out advice in an entirely closed-book manner. To do so would actually be negligent.

    There is talk of keeping people out of the profession but we lose many good attorneys to other lines of work because of this exam. TO paraphrase Nigel Franklandon his JDD course, is we are not careful the profession will die.

    The review is therefore welcome but sadly I fear nothing will change, especially given who is running it. I have nothing against Chris Mercer but he is one of the most old school of the old school.

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    1. Absolutely agree. I hope CIPA actually looks at mental health of students more closely. The suggestion to make exams longer does not help at all.

      Increasingly, I see firms are cutting back on training and investment. The exam fees are now so high that firms are only paying for 1 retake. As you've suggested above, there appears to be a culture of replacing candidates after only 2/3 attempts. Ridiculous!

      My experience is that JDD course does not help you pass FD4. This is generally reflected in the low pass rate seen for decades.

      As for suggestion to improvements - FD1 should be open book. FD4 should be coursework based.

      Delete
    2. As a senior attorney in a private practice firm, I have seen far too many capable candidates leave the profession as a result of these exams. Many are competent and it saddens me when the exams saps out the confidence in them. Trainees dropping out present a huge problem for firms, not least replacing their knowledge and skills can be difficult. Almost all of them cite the constant, intense and continuation of the exam system as reasons as to why they have left. I have sympathy as I almost left the profession myself. We are over-examining!

      The exams do not work at the moment for the profession. I'm glad there is a review but big changes needs to happen quickly.

      Delete
    3. Completely agree that FD4 should be coursework based.
      5 hours to give a complete infringement and validity opinion is negligent and completely at odds with how long this takes in the real world and what companies are willing to pay for such work.

      On the other hand i do think it is semi-plausible to do a basic response in 3 hours (amendment), draft good claims in 4 hours (drafting), and answer a client question in around 20 minutes (FD1).

      Those people that question whether it is too easy to cheat with coursework need to get a grip.

      1) This is a professional guided by an ethical code, if someone ever found out you were cheating you would likely loose your ability to practice. I think most people would acknowledge this isn't worth the risk and would try to avoid this potential "prisoners dilemma" situation.
      2) You could give different candidates different interpretations that they have to take on certain phrases. This technique was very common when i was at university for topics such as RF filter design (obviously here the desired filter characteristics were changed between candidates), see no reason why it couldn't be done here.
      3) most (prospective) patent attorneys are good boys and girls who wouldn't say boo to a goose and have likely never been told off at any point in their life (school, uni, police etc.). Why would this suddenly change?

      Delete
    4. I think the idea of having a coursework based PEB examination for FD4/P6 is a good shout and needs exploring. I personally suffer far too much with this exam. It held back my career for many years and I'm now suffering as a consequence by progressing much more slowly than my peers despite around 15 years in IP. My firm is happy to let me do everything patent related but I suspect some partners look down on me because I didn't pass FD4 first time or second or third time. It has a long-term effect on one's career that PEB/CIPA are unwilling to mitigate for.

      I agree with other suggestions that FD1 should be open book. I see no point trying to memorise large sections of the law. If FD1 is all about client advice, then why are we still refusing to make it open book.

      Delete
  15. My firm is responding to Mercer review and they are very critical at the current PEB examinations. I think they feel the costs of training trainees to pass FD1 and FD4 is too high and the exams do not reflect real life practices. This may be because we do so little UK work now. They feel the way the exams are at the moment that too many competent and good candidates are not passing. The exam fees are also too high with little help or input from CIPA/PEB for training.

    I had no idea my firm felt this way about UK PEB exams so perhaps firms should respond to the review too.

    ReplyDelete
  16. I think its better that CIPA focus their energy and materials for EQEs candidates. UK based exams are nice to have BUT they are not critical for a patent attorney as evident by the lack of UK work we all do.

    ReplyDelete
  17. As I'm new to the profession (just finished QM) I am yet to do these advanced exams so feel less qualified to state my opinion. However, I do note that when I speak to my colleagues who are further down the track and recently qualified attorneys - they all sigh at FD1 and FD4 and almost all mentioned that there is an element of lucky guessing and it all depends "on the day". I do wonder if these exams are fit to actually test an attorney's skills and ability.

    I personally would welcome the idea to have FD1 open book not because I would like an easy pass as some have suggested in the past but because I feel it reflects modern day practice. I often see attorneys in meeting whipping out the black book, going on the internet to check facts or saying to clients that they want to check the law before coming back with sound advice.

    ReplyDelete
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    1. and that is how it should be.

      Delete
    2. Making the UK exams open-book is a bad idea. One need only look at Paper D of the EQEs to see why.

      Candidates have to bring large suitcases filled with heavily annotated (and very expensive) text books into the exam. Freed of the restrictions of a closed-book exam, the EQE examiners set the most utterly obscure questions in the knowledge that you have the answer to hand somewhere in the thousands of pages of text you've brought with you.

      Last year's Paper D had a question on deposit accounts and automatic debiting, something of absolutely no use to the average attorney, but which failing to answer would instantly drop your mark by 8%. At most in the UK exam remembering something like this might be worth a discretionary half-mark for being clever, but for the EQEs it is considered essential knowledge!

      It turns what should be an exam on your knowledge into an exam on how well you've organised the paper material you've brought with you. Totally unrealistic.

      Delete
    3. How about a halfway house -allowing only a few specific texts in (e.g. just Doug Ealey's guide). I do think some topics covered in P2/FD4 are obscure. I remember a paper B question where the majority of the marks were for working through the test for awarding an interim injunction. After the exam I checked the syllabus. This was not specifically mentioned, but I guess they intended it to fall under general knowledge of UK law!

      Delete
    4. There are plenty of examples of questions in FD1 that doesn't relate to most attorney's practice. There was 5 marks on security question one year. Most attorneys in their life time will never come across this so it is difficult for these candidates to pick up marks on these questions. I think FD1 have their fair share of asking irrelevant or out of sync questions.

      Delete
    5. I would support having an open book FD1 exam.

      Delete
    6. The same could be said about FD1 - you have questions on threats which no ones comes across in real life. You have questions on interim injunctions that most attorneys don't actually do, you are required to cover JP, CN law (albeit a small amount). I agree that fees have no use to an attorney, but the same could be said for some topics on FD1.

      FD1 also doesn't reward marks that are correct but not on the mark scheme e.g. you can say that patent is granted and in force but you won't get a mark for this one year but you will in another year. Inconsistent marking scheme is probably where the problem is in FD1.

      Delete
    7. What about providing calendars like the EPO do in their exams. Shouldn't be any harm in that surely.

      I still think open book FD1 would be good but perhaps limit it to a few books as suggested by others.

      Delete
  18. The worst thing about this whole saga is that trainees actually enjoying learning about and practising infringement and validity analysis.

    The problem is the exams are so poorly constructed that it just becomes a speed reading competition with very little thinking time. Seriously, look at the word count (not the page count!) of P6 Exams over the last few years.

    ReplyDelete
  19. FD4 needs changing. Its clear to most people in the profession. It has been going on for decades. I'm never in favour of coursework but have an exception for FD4. I think FD4 coursework based assessment may work. We should consider this.

    ReplyDelete
  20. No one has mentioned the fact that we lose alot of Design work to law firm/solicitors. Attorneys do not get a look in until they have passed FD1 but generally, until they are considered UK qualified. I believe we are over-testing so much that we are losing business to other professions.

    I see plenty of ex-trainees on the other side of the fence as IP managers, IP consultants etc... They are very capable of doing "attorney type" work themselves but most I spoke to decide not to continue becoming an attorney because of pressures with exams either from firms, lack of training or bad work/family life.

    We need to take into consideration the impact of these exams on individuals and on firms as I believe we are driving the patent attorney profession out of business.

    ReplyDelete
    Replies
    1. Really, design law probably needs to become a separate, complimentary qualification to the patent attorney one. The idea that one question in FD1 is enough to cover it properly just doesn't wash. Better to take the question out (which for some reason most score badly on even though its there every year).

      In terms of stress - the hours attorneys are expected to put it generally in work are far more to blame than any exam.

      Delete
    2. Gilman - I agree that it makes no sense to have 1 design question in FD1. I think foundations should sufficiently cover the design aspect.

      You're right that hours are to blame but these can often be mitigated by attorneys going part-time or reducing workloads or moving jobs. However, exam stress are completely different and trainees are not usually offered the same benefits e.g. reduced working hours plus the additional hours of studying in one's spare time. Candidates are under even more pressure given from what I've been hearing that some firms do not fully support their candidates and are only paying for 1 retake. As I understand, this is from a direct result of exam fees going up 20% every year. This also indicate that firms are not fully satisfied with the PEB examination system and what they offer.

      Delete
  21. Why not make the advanced patent exams the same as the trademark final exams?

    ReplyDelete
  22. Alot of people would not be sad to see FD4 as an exam go. Says it all really.

    I think having a coursework created by attorneys and assess by attorneys have two advantages;
    1) Having a coursework allows in depth understanding and analysis but also provide sufficient time for candidates to truly understand and appreciate these type of problems in the IP world. There can be lectures run by attorneys that explore infringement & validity issues.

    2) it relieve pressures for Examiners to mark papers over a short period of time. Instead, examiners can actually mark someone's work and be given sufficient time to do so. It can be submitted electronically so examiners do not need to read messy writing.

    The courts take weeks to come up with decisions so why is there a need to make it so time pressured in a form of exam.

    ReplyDelete
  23. "The review is therefore welcome but sadly I fear nothing will change, especially given who is running it. I have nothing against Chris Mercer but he is one of the most old school of the old school."

    100% agree with this. The only conclusion that is going to be drawn is that candidates are taking the exam far too early in their career. The quality of the exam is not going to be questioned. Sigh.

    ReplyDelete
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    1. "The only conclusion that is going to be drawn is that candidates are taking the exam far too early in their career.

      There's some pretty good reasons to believe this is true though. At the very least taking P6/FD4 at the same time as all the other finals, as soon as possible after the foundations, seems unwise but very common and indeed is promoted by senior people in a lot of firms.

      Delete
    2. There are also very compelling reasons to think it's nonsense. For example: people who have passed every other exam with flying colours failing. People with extensive experience of giving actual infringement and validity opinions failing. People who have resat the exam multiple times and are 10+ years in to their careers after successfully prosecuting hundreds of applications failing. That strongly suggests a serious failing of the exam rather than candidates.

      Delete
    3. " People who have resat the exam multiple times and are 10+ years in to their careers after successfully prosecuting hundreds of applications failing.

      Need I point out the obvious issue that experience of patent prosecution is not experience of giving opinions on infringement and validity? The people I know who are repeat takers/failers of P6/FD4 are typically very capable at patent prosecution (which is why they're still in the business) but often work in firms with little or no exposure to infringement issues.

      Delete
    4. And to the candidate who does give opinions on infringement and validity, yet fails?

      Are you really suggesting there is no overlap in skills between prosecution and infringement/validity? Opposition work alone stems from infringement issues. Attorneys limit during opposition with a very clear eye on an infringement.

      Aside from this, is setting an exam in an area that a candidate has no opportunity to develop skills in is an acceptable barrier to entry?

      Delete
    5. Gilman, there are many examples of people who are very good at carrying out infringement and validity analyses and indeed do a lot of these in real-life but still fail at P6 because the exam is not about experience, but rather about some mysterious exam technique. I refer you to Ron's comment in the blogpost. How do you explain this?

      Delete
    6. I read that many candidates fail, who do little else in the office all day other than FTO opinions, and that this can't be right.

      Really? Just because you drive motor vehicles all day long, on a country estate, and have done little else for years, doesn't mean that passing the driving test is a foregone conclusion.

      Or, put it another way: you seek a patent attorney, and the job applicant assures you that his (or her) FTO opinions are safe, it's just that he's yet to pass the Paper. Is that enough reassurance?

      Delete
    7. Alternatively, you seek a patent attorney, and the job applicant assures you that his (or her) FTO (or validity/infringement) opinions are safe on the sole basis that they have passed the Paper, but otherwise have no experience in this area. Is that enough reassurance?

      Such passers of the paper do exist!

      The two examples above get to the purported heart of the issue: Is FD4 fit for purpose? Some say yes, some say no!

      Who is right?

      Is there a third way that avoids such reductive conclusions? Hopefully the review will find out.

      Delete
  24. I have 2 comments (which I don't think have been addressed before).

    Firstly, a little bit in defense of the examiners - the exam may be flawed, but it is patent attorneys setting these papers, in their spare time, and not really being paid for it (I mean there is a stipend involved, but honestly it is far less than their professional rate) so please don't think they are doing it for money. If they wanted to make money then they'd be better off at work.

    Secondly, I do appreciate the advantages of a university course, but personally I trained in a small (1/2 person) in house department. If the professional qualification was restricted to attendance at a university course it would not have been an option for me. I know I am not alone in this fact. So we should make sure that any future changes keep the professional qualification route open for all areas of the profession. It may have actually helped me qualify to be honest as being in house means that this type of advice was more in my daily work and I actually passed first time. Which to me speaks to experience and not academic training as being the most important factor (this is based on an n of about 3 though...). So whilst an academic course may help improve the pass rate, I strongly believe that it will then change what is tested. Maybe we want to do this, but it is not just a case of replace.

    ReplyDelete
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    1. I second every single word of this. I also work in-house in a small department, I also have to do way more infringement/validity work which is what made passing the exam easier, I also don't think I'd been able to qualify if I'd had to have taken a university course to do it.

      Delete
    2. I'm with you here. I qualified in the 1970's and I suspect the thinking inside CIPA is still as it was then, that qualifying means more than regurgitating book learning. Rather, the qualification is a licence to practise, that the public can have confidence that, when it consults a CPA it will get sound, business-like and reliable advice, a solid basis for commercial decisions in the real world, advice which focusses on the key points and won't drop the client in a hole.

      Isn't this an utterly different proposition from the EPO qualifying exams? Isn't it really really hard to teach? Isn't it an enquiry into whether each supplicant has aptitude enough for the profession that he or she is "safe to let loose on the public"?

      I guess that in my day there was more time for tutoring, less pressure to bill hours.

      But please, hang on to the best of training in the UK. here in germany, faith is put in the "Amtsjahr" for getting candidates qualified. totoring is delegated to the Patent Office and the Patent Court. No wonder patent attorneys in Germany are inclined to give their clients unhelpful advice.

      The old-fashioned, classic, British training route gives UK patent attorneys an edge over the patent attorneys of every other country in the world. Do not squander that unique USP, that unique advantage to companies who choose a UK patent attorney as their outside counsel.

      Delete
    3. Anonymous - Wednesday, 5 February 2020 at 16:52:00 GMT

      Unless the examiners are equity partners or their billing is tied to their salary, their professional rate is irrelevant.

      Out of interest, is any examiner willing to disclose how much they get paid per marked paper?

      The flip side of your argument is that candidates have to pay thousands of pounds of their own money to the benefit of private tutors and examiners. Equally, hundreds of hours have been spent by candidates preparing for the exam compared to the mere hour some examiners spend marking an individual paper (an examiner told me this is how long they spend marking each paper). Further, career progression and thus earning potential of candidates is stalled.

      There is an underlying implication when referencing how the examiners are giving up their own time that they are somehow the "guardians" of the profession. Yet, we do not know who they are, how they are appointed or what makes them in anyway qualified to decide who is "competent".

      Gilman Grundy - Thursday, 6 February 2020 at 08:03:00 GMT

      Whilst working in-house helped you, that is not a viable option for other members of the profession. As per comments above, there are serious doubts whether FD4 does in fact assess a candidate's ability to do infringement/validity work.

      Delete
    4. "The old-fashioned, classic, British training route gives UK patent attorneys an edge over the patent attorneys of every other country in the world. Do not squander that unique USP, that unique advantage to companies who choose a UK patent attorney as their outside counsel."

      Have you any evidence to back that claim up?

      Delete
    5. It's a credible claim based on:

      1) The much higher pass-rate of UK candidates in the EQEs than any other substantially-sized national grouping. 91% of UK candidates passed Paper A last year, compared to 79% for France and 78% for Germany. A lead of ~5-10% in pass-rate for UK candidates over FR/DE is consistently seen across all the final exam papers. Italy, Spain and other such middle-rank countries normally score around ~50% in terms of average pass-rate in the EQE finals (though unlike GB/FR/DE they have an added linguistic barrier to overcome).

      2) Considering the US doesn't have a real patent attorney exam - the closest is the USPTO patent bar exam for patent agents, which is a single multiple-choice test that no US attorney I've ever spoken to believes credibly tests ability.

      3) With the exception of Japan, no other major jurisdiction outside Europe has a well-established, high-quality examining system for attorneys. The Japanese one is infamously difficult but beyond this it is hard to say much about it.

      Delete
    6. 2 and 3 aren't evidence mate

      Delete
    7. It is not a credible claim based on those reasons.

      Higher UK pass rates for the EQEs does not support the above claim that QUALIFIED UK attorneys have an edge over their peers in other countries THAT APPARENTLY ARISES FROM THE UK QUALIFICATION SYSTEM. I doubt clients consider EQE pass rates (or are even aware of FD4) when selecting outside counsel.

      If I a not mistaken, hasn't it been said ability to pass EQEs is not indicative of ability to pass UKs... can't have it both ways by rolling out EQE pass rates to justify the UK qualification system.

      Certain UK attorneys don't believe FD4 credibly tests ability either, and thus compares well with the US system.

      The above statement remains unsubstantiated.






      Delete
    8. Yes, UK candidates in terms of stats do better but PEB does not see that UK candidates are also the WORSE PAID trainees and attorneys around the world. The simple answer is -PEB is holding back able candidates from earning a better living.

      Delete
    9. PEB always has this arrogance. You can see this in their marking scheme. Candidates need to work harder, why are you thinking like this, this is so obvious... this is basic topic... PEB think 75% of candidates who fail are clearly too stupid to stay in the profession.

      Delete
    10. I can see P2 helping a little bit.
      Unfortunately, P6 is no help whatsoever for EQE exams.

      Many candidates don't sit P3 and P4. I don't think PEB exams actually help that much with EQEs.

      Delete
    11. "If I a not mistaken, hasn't it been said ability to pass EQEs is not indicative of ability to pass UKs... can't have it both ways by rolling out EQE pass rates to justify the UK qualification system."

      This is very simple. If we train to a higher standard in the UK (and by all evidence we do) then our trainees, even those who fail the UK exams, are better placed to pass the EQEs than those from other countries. There is no contradiction here.

      I'm also not sure why anyone would want an exam that tests essentially the same skills, to essentially the same level as the EQEs - what would the point be of testing the same things twice?

      Either we do what they do in e.g., Italy, and have an easy-to-pass national exam that essentially weeds out complete no-hopers, or we have exams that set a higher standard than the EQEs in an effort to encourage better performance. In the UK we have chosen the later. The former is done in many other European countries but is now a bit pointless since the pre-exam for the EQEs was introduced.

      Delete
    12. And the evidence for this higher standard of training due to the UK exams (implied by your comment "even those that have failed") can be found where? EQE pass rates don't tell us how many of those candidates have sat or even prepared for UK exams. Plus if it is true that all UK exam failures are due to candidates taking exams too early as is widely alleged, then we must equally accept that they did not train properly for them and can get no benefit for the EQEs.

      There is still a contradiction - if the exams are different, training for one set will not help the other. Surely the only logical conclusion is that UK candidates have better EQE training than their peers on the continent. Training for UK exams will not help with different EQEs.

      Irrespective of the above, EQE pass rates tell us nothing about the unsubstantiated claim that UK attorneys "have an edge over their peers in other countries".

      I don't think anyone is suggesting we should not have a process which merely "weeds out complete no-hopers", but rather that the current process is far from satisfactory.

      "higher standard than the EQEs in an effort to encourage better performance"..... the evidence that this is what happening is to be found where?

      Delete
    13. Making people attempt poorly formed exams IN THE HOPE that they improve EQE performance is mental.

      Why not just train people better for EQEs and get the pass rate up that way? Same result, less stress. Probably less money as well.

      Delete
    14. "Surely the only logical conclusion is that UK candidates have better EQE training than their peers on the continent."

      This is worth considering but doesn't match what is known (i.e., all the facilities for training that we have in the UK are available on the continent and as far as can be seen the in-firm training is basically the same, some of the best training facilities are based on the continent).

      "EQE pass rates don't tell us how many of those candidates have sat or even prepared for UK exams."

      I'd wager that there's more than a little over-lap between the ~200-odd PEB examinees and the ~200-odd UK EQE examinees trooping to Walsall (of all places!) each year, wouldn't you?

      Delete
    15. "as far as can be seen the in-firm training is basically the same, some of the best training facilities are based on the continent"

      Where can I read about comparisons between all in-firm training schemes?

      "I'd wager...."

      Still not seeing any evidence here.

      Delete
    16. This article's as good a place to start as any:
      https://www.managingip.com/Article/3885597/Managing-Patents-Archive/EPO-exam-results-why-the-UK-tops-the-class.html

      Delete
    17. EQE pass rates tell us nothing about the allegedly superior qualified UK attorney. There has been no attempt to address this point.

      This article is not evidence of your claim made above. The opening line "lawyers offering differing views on why" does not even come close to evidence of the above claim that UK exams lead to better performance in EQEs which leads to UK attorneys having an edge over their peers in other countries to the extent clients chose UK counsel.

      It is crucial that unsubstantiated facts such as UK attorneys having an edge over their peers (seemingly due to FD4) in other countries play no part in the Mercer Review. There might be valid reasons to keep FD4, but exceptionalism is not one of them.

      Delete
    18. Alot of people take EQEs before they take the PEB exams. So it's difficult to correlate between the two exams.

      Delete
  25. Please forgive, if the comment which follows has been made already, in this already long thread.

    I got on the UK Register early enough to be grandfathered on to the EPO Register. Back then, there were pass rates as low as 12.5%. I remember wondering what were my chances of passing. I remember telling people (after I had passed) that these were the first exams in my life (including Oxford University Finals) for which mere hard work was not sufficient for success. Rather, without talent for the profession, one would never pass. I had in mind the drafting Paper but, even more than that, the Paper called back then "Interpretation and Criticism".

    And then came the EPO exams. And then, for me, some years later, came 25 years of practice in Germany. the world of practice today bears little relation to the one of the 1970's, when I qualified.

    Reading the thread, what occurs to me is this: that everybody knows what the syllabus is for the EPO exams and what competences are being tested. But, for the UK exam, there is confusion. The 50 year old notion of competence, tested by the UK qualification exams and presumably the driving force in CIPA circles, is to find out whether the candidate is "safe to let loose on the public".

    That is a much more diffuse objective than merely competence to practise before the EPO. How are candidates and trainers, in today's ever more rapidly changing world, supposed to know what "safe to let loose on the public" means, these days? How do advisers and critics from the world of academia understand that objective? How can trainees, doing nothing other than prep, pros and occasional oppositions at the EPO, even begin to get a feel for it?

    ReplyDelete
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    1. the world of practice today bears little relation to the one of the 1970's, when I qualified.

      The world of practice has changed a lot just in the 15 years I've been in the profession. We live in an ever more complex world and the patent profession needs to change to reflect that.

      I was actually quite surprised when the EQE removed the option of the chemistry paper. Specialization is common in other walks of life, yet all patent attorneys are expected to be mechanical engineers. This does not reflect the reality of the job in the slightest.

      The time has come for a complete rethink.

      Delete
  26. Just change the rules so that every year every patent firm has to send a sacrificial equity partner to sit P6, and if they fail they are deemed not "fit to practice" and removed from the register. P6 would be miraculously fixed overnight.

    I'm being flippant, but we all know it would work. Suddenly the narrative would flip from "in my day P6 was even harder" to "in my day P6 was a proper exam, this is an outrage".

    ReplyDelete
    Replies
    1. Thank you for a most entertaining comment. :-) The only reason this is never going to be implemented is because we'll have equity partners dropping off the register like flies.

      Delete
  27. The discussion above is long overdue.

    For years, I simply accepted that failure of FD4/P6 meant I just was not ready to practise, aka not safe to be let loose on the public, not competent, or a "bit of an idiot" (actual quote).

    Not only that, I ignored all of the evidence to the contrary: 10+ years of experience, drafting infringement/validity/FTO opinions, drafting and prosecuting applications worldwide including extensive UKIPO work; reading and writing practice notes on several UK court decisions, representing clients by myself before the ED, OD, and BoA; positive reviews at work, positive feedback from clients, you get the idea....

    It was only the reaction to 2018's paper on this blog did I begin to question what had been deeply instilled as to the merits of FD4/P6. I have no longer have any confidence in the procedure: changing the pass mark without any acknowledgement of a mistake, PEB's non-apology (expressing regret is not an apology), equating failure to lack of readiness and preparation, ignoring the Middlesex review, etc.

    The sole defence that I see repeatedly aired is that FD4/P6 is a test of readiness to practise. However, that is wholly irreconcilable with failure regularly being attributed with inadequate training for the exam. If it truly is a test for the former, the latter would simply not be required.

    As to changes, simply saying that all potential alternatives are worse for whatever reason does not address the fundamental issue: F44/P6 is not fit for purpose since it in no way ensures a competent candidate passes.

    I wish to thank this blog for enlightening me. If not, I doubt I would still be in the profession.

    ReplyDelete
    Replies
    1. "The sole defence that I see repeatedly aired is that FD4/P6 is a test of readiness to practise. However, that is wholly irreconcilable with failure regularly being attributed with inadequate training for the exam. If it truly is a test for the former, the latter would simply not be required."

      That is something I never thought about but is actually a great point!

      Delete
    2. Likewise, I've never seen this point expressed in this way before. It is interesting.

      I guess what we're working up to here is a requirement for a certain number of years practice before being eligible to sit FD4/P6. Perhaps success in P2 (or P3 & P4, or the EQE!) could be another requirement.

      Delete
    3. But why do we feel the need to add more obstacle to keep delaying ones progression. Yes, the public needs to know that they are dealing with a safe pair of hands but if we keep putting barriers up, no one will get to the end of qualification. No other country does this to their own national profession.

      Delete
  28. In my view the main issue is with P6 is the nature of the paper itself. Marks are allocated in an objective way with little flexibility to something which has an inherently subjective element to it.

    P6 is then basically a kind of tea-leaf-reading-for-patent-attorneys exercise, where you can only pass if the features you’ve assigned the most importance to (in terms of words written in your script) perfectly align with the points the examiners had in mind.

    Some may argue that you just construe every claim word/element and everything follows from a solid construction. However, the subjectivity comes in to play later on in the actual infringement and validity: how do you decide how important one claim element is over another? It’s obvious in some cases but for the key features where the big marks are scored, it is very difficult to know how much depth is required on one point. However, the examiners seem to consider that this is an objective exercise with a clear answer. This results in candidates going down rabbit holes where few marks are available.

    This could easily be resolved in my view but it requires acknowledgement that there is subjectivity and that two different answers can qualitatively both be “good” infringement and validity opinions.

    If you disagree, compare to real life: two experienced attorneys can come to very different views on the finer points in an infringement and validity opinion.

    ReplyDelete
    Replies
    1. To add to your frustration, it has been suggested to me that the mark scheme only exists to appease PEB's desire to increase transparency, and Examiners at best use it as a vague guide. Changing the pass mark last year would suggest there is some truth in this.

      If this is true, the mark scheme has only made matters worse for those who trust it.

      In fairness, this is not PEB's fault but that of the examiners' obstinance. I am old enough to remember the old examiners' comments, 2012 p6 example: "Tried too hard to get to a "set" answer and as a result inf and nov were very poor."

      Of course, always remember all exams are imperfect, except P6.

      Delete
    2. This is exactly what I mean when I say passing P6 is basically tea-leaf reading.

      "Tried to hard to get a set answer" = "fail"

      Write a careful infringement/validity opinion on a claim feature the examiners don't consider to be worthy of merit = "fail"

      Thus the only way to pass is to somehow anticipate where the "salient points" will be in the opinion of the examiner who marks your script. They have an idea in their mind (which they think is right, even when it deviates from the mark scheme) and mark accordingly.




      Delete
    3. hence, its fair to say P6/FD4 has a strong element of luck.

      Delete
  29. My opinion is that we simply need to move away from this examination culture. Make FD4 coursework based. Students would actually enjoy learning it. I would make P2 the same. Patent law is something that should be regularly discussed.

    With the current system, I see attorneys completely ignoring P2 and P6 once they've passed.

    ReplyDelete
  30. I think most people in the profession (trainees, associates, attorneys, senior attorneys, partners) and small firms, industry, large private firms ALL want to see the exam system radically changed.

    How long will PEB/CIPA take over this. We seem to be having many reviews but NO action. I've been asking for changes for years. Some of my colleagues were talking about trying to change things in the early 1990s.

    The world and the profession has moved on.

    Is this another review with no end point?

    ReplyDelete
  31. I hear a lot of comments asking for university style exam for advanced papers. Why not have these exams taught by attorneys, set by attorneys and marked by attorneys. The whole point is that candidates get taught a similar thing. The problem we have is that some are learning on their own with no guidance whatsoever.

    I know some attorneys already go into university to teach foundations.

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  32. After the uproar of FD4, they must surely change it. It would be the most depressing thing and obviously completely ignore many people's view. We want the exams to be robust but not so ridiculous that we are losing talented people and no one is qualifying. Clients are not going to thank CIPA if they have very limited options to select attorneys they want. There are so much more than just qualification - you need to be able to interact, it also depends on specialist topics of the attorney. Having a limited pool of attorneys is no good for the public.

    ReplyDelete
    Replies
    1. "After the uproar of FD4, they must surely change it

      It's worth noting that the post-exam changing of the mark scheme that occurred last year in the PEB exams happens most years in the EQEs. It was not a good thing to happen, but framing it as a catastrophe is a bit over the top.

      Delete
  33. Someone above made a brilliant point about the long-term impact of these exams.

    Its not simply a case of not passing a for a few years. This has a substantial impact on their career progression to partner level when they do pass. I guess in industry, its the same for promotions etc... I would say that there is a lot more to exams. We are losing people who have good leadership but are unable to become leaders (i.e. promoted) because of 1 or 2 exams. We have lost specialists i.e. skills in software knowledge because they can get paid just as much and more without the hassle of exams.

    ReplyDelete
    Replies
    1. Is Mercer going to look at the impact of exams on career, wages, work/life balance etc...

      Delete
  34. Wouldn't it make sense to make FD4 much much clearer. The EPO expect one answers and tries to make sure this is the case. I don't understand why PEB make these exams so open ended. Everyone will interpret things differently.

    Time is a huge problem and they should reduce contents. If they can't, I'm in favour of coursework. I don't agree with extending the exam time limit because it will only give examiners more room to slowly increase the workload during the exam time.

    This is already the case where it went from 4 hours to 5 hours. Candidates are now expected to do more in 5 hours so an extra hour is no longer helpful.

    ReplyDelete
    Replies
    1. It used to be the case that more marks were awarded for construction and infringement/novelty for the 4 hour exam. You can pass just on this even if you don't finish. Ever since they switched to 5 hours, they've moved the marks more to inventive step so candidates are under more pressure to get through everything just to pass.

      So I am strongly against time extension of exam. Move it back to 4 hours and reduce number of claims.

      Delete
  35. My firm pays for a P6 examiner to tutor trainees. I think we should all want to get away from this.

    I dont have any problem with the examiner being a tutor if he is particularly brilliant at infringement and validity analysis but i'm pretty sure that is not why he was selected. He was selected to teach people how to pass the exam. nothing to do with knowledge of case law about interpretation, special insights about infringement, relevant experience etc..

    We should all as a profession want to move away from the type of test where people are being trained to pass the exam. In my mind it would be a lot more interesting, and beneficial for the profession as a whole, if the tutor could equally be an ex-judge, barrister, solicitor etc. After all, they will all likely deal with the issues of infringement and validity more often than patent attorneys. This is simply not possible with P6 at the moment.

    I think it would be better to move to a course work based assessment, of similar length and content to a UKIPO opinion. That way, legal arguments can be considered alot more.
    Inventive step attacks can be properly planned instead of having about 45 mins to do I/S for about 5 claims.

    Maybe this would also give people more confidence to actually use their rights of audience as well?

    As a side note, it would be interesting to know what qualifications a UKIPO examiner needs to give his non-binding opinion on infringement and validity.

    ReplyDelete
    Replies
    1. I'm with you on this. I think a coursework approach would be beneficial. Patent attorney shouldn't be giving out advice with so much time constraint and without thinking through their advice. The nature of the exam is so extreme that most candidates rush their answers. I think it sends out the wrong signal. Yes, we are under pressure in our jobs but we have so much more resources available at our fingertips so I don't buy this argument that attorneys should be put under intense pressure.

      Doctors don't rush their operations, dentists don't do a 2 minute job on an root canal and judges take their time over deciding their full judgement so why are we expected to provide advice on infringement and analysis on a time-scale that is unrealistic.

      Delete
  36. Some years ago, when I was preparing to take P6 (as it was called then), I happened to mention this to an IP barrister friend. His response was an airily dismissive "Oh, yes; that's the paper that we all think is really easy but all of you seem to find really difficult!"

    Now, said friend hasn't taken the UK qualifying exams, and (to my knowledge) there aren't many barristers who have, so this remark seemed to be coming from a position of looking at what's in the papers themselves as though they were to be treated as a real-world exercise, getting straight to the actually-relevant points, rather than applying the artificially formulaic approach which the exam demands. This flags up a glaring inconsistency between the way in which one is supposed to approach the exam and how one would approach a real-world validity/infringement opinion.

    In particular, it seems to be widely-understood (and reflected in the mark schemes for past papers) that candidates are expected to construe every term in the claims, even where it is self-evident that some of these terms will have no bearing on the conclusion. It’s all very well saying that candidates “don’t need to” do this, but on a paper where so many people only narrowly squeak over the boundary is a candidate really going to take the risk of omitting a construction of an irrelevant term which could nevertheless gain them another half-mark or so?

    Then there’s the shifting distribution of marks, and in particular the tendency I’ve noticed in recent years for more and more marks to be allocated to inventive step in the final mark scheme. In principle this is all well and good but it completely misses the fact that inventive step cannot be addressed until both construction and novelty have been done. With the formulaic approach that seems to be required, candidates are necessarily going to take up a good chunk of the available time churning through construction and novelty before they are able to tackle inventive step. It is no good allocating more marks to inventive step each year, and then complaining that candidates’ answers on inventive step are poor, when the approach which is demanded doesn’t allow candidates much flexibility in how they allocate their time.

    Another trend that keeps recurring (and potentially worsening) is for there to be multiple independent claims, multiple embodiments of the invention, multiple potential infringements, multiple prior art embodiments, etc. Obviously I understand that this is intended to create various possible outcomes but it simply creates a proliferation of issues that consume more and more time in construction/novelty/infringement.

    Perhaps some of these issues could be alleviated if an indication were to be given on the cover sheet of how many marks are available for each of construction, novelty, obviousness, infringement, sufficiency, and advice? Candidates would then, perhaps, be able to judge their time allocation and the detail of their answers more efficiently, spending less time on “precautionary” construction of irrelevant claim features if the paper is weighted less heavily towards awarding marks for construction. A degree of restraint from the examiners regarding the “multiplicity” issue would also be welcome – I’m not saying that the exam should be restricted to a single claim, single embodiment, etc.; that would be going too far the other way. But having every possible issue of multiplicity on the table just creates a nightmare scenario for time management and borders on the sadistic.

    ReplyDelete
  37. I don’t agree that limiting eligibility to sit the exam, e.g. to those with a certain number of years’ experience, would help. Nor would replacing the exam with a "portfolio-based" approach, as I've seen suggested elsewhere. The type of work that trainees are presented with is highly variable depending on which firm they are with and who their clients are. Having more years’ experience doesn’t necessarily mean that the trainee will be more familiar with infringement and validity advice; it could even be the case that the firm has no work available in infringement or validity matters! Partners can often be reluctant to allocate such work to a trainee, anyhow. And, in the end, the exam bears so little resemblance to reality that more experience in infringement & validity matters seems unlikely to be of any benefit, and could potentially be detrimental!

    A coursework-type approach, allowing candidates time to write a full, reasoned opinion, sounds ideal in principle but how could it be ensured that there were no issues of plagiarism and/or candidates getting "help" from more senior attorneys to write their opinions?

    Finally, a couple of words in defence of the exam (and the examiners). I don't necessarily agree with the idea that the examiners penalise candidates for getting the "wrong" answer arising from a “wrong” construction. The whole point of an infringement/validity analysis is that there are terms which could be construed differently and which could radically affect the conclusions reached. What I was always taught was that the important thing was to provide a justification for your preferred construction, and to ensure that all subsequent advice was consistent with that construction, regardless of whether or not it matches the “model” outcome. At least when I took P6, my own analysis and conclusions were *wildly* different from those of the Examiners but I still achieved a pass mark. And as to the criticism that the exams favour those working in mechanical fields – I don’t really see this as an issue. The subject-matter generally relates to quite simple, everyday devices that don’t require extensive mechanical experience to understand. I really don’t think chemists (like me!) and biotech specialists are going to be unduly bamboozled by, say, craft knives or covers for water butts…

    ReplyDelete
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    1. I think the first priority should be to get a test that is representative of real life and then worry about cheating.

      At some point you need to rely on the ethical conduct of a person (even if they have passed P6)

      Does your firm ask graduates how many of their modules were coursework based? They could have cheated during their degree?

      Delete
    2. For the coursework style exam - this can be easily resolved. There are plenty of anti-plagiarism software out there which CIPA/PEB can employed. You can assign each group different scenarios.

      I think the current FD4/P6 is not working and is clear to most people. I would be happy for CIPA/PEB to try a different method. The coursework route would seem realistic.

      Otherwise, we end up sticking with the exam and then a few years later, this issue flares up again.

      Delete
    3. Anon - in principle, yes P6/FD4 is meant to be designed like this. But in practice, its not like this and there is an element of luck. I passed P6 on my first attempt and thought I could start training the next batch of trainees. I always try to sit the paper myself first to see where the common mistakes are. Unfortunately, I would've failed most of them from 2014 onwards. This led me to think that P6/FD4 really is "on the day". I've qualified near to 5 years but I can honestly say I have no confidence in passing this exam again. So I completely understand why people say P6/FD4 is a lottery game.

      Delete
    4. I'm not sure if my previous reply submitted properly, so if you get two replies along the same line, its the same person :).

      Cheating - What procedures are in place to ensure qualified attorneys follow IPREG rules?

      This is an area of a patent attorneys practice which depends on their ethical conduct. Following these rules will likely have a greater impact on most clients than cheating in the P6 exam. Yet most people are happy for adherence with these rules to be based on trust. Why the double standards?

      Delete
    5. " There are plenty of anti-plagiarism software out there which CIPA/PEB can employed."

      Anyone familiar with academic plagiarism will recognise just how little software can actually achieve against it. If people can cheat, they will, and the entire validity of the qualification is brought into question.

      Delete
    6. "If people can cheat, they will"

      I'm not so sure about that. What would YOU do if someone came to you asking to copy your answers? I'm betting you would probably report it? You seem to have a very high opinion of yourself, but why don't you think everyone else would do the same?

      "and the entire validity of the qualification is brought into question."

      I think P6 is already considered a joke. Most candidates that pass have no idea about relevant case law from the English courts concerning interpretation. In fact, the book published by CIPA specifically tells people not to bother with it. People have literally no idea if the advice they are giving is up to date with how the issues are interpreted in the english courts...

      Delete
    7. "If people can cheat, they will"

      I am actually speechless - that is certainly not my view of people

      Delete
    8. I don't know why you think people would jeopardise 3+ years spent training and their future career when they could just read a bit of case law and spend a bit more time working on their opinion?

      The risk of getting caught far outweighs the reward.

      Also, it doesn't really make sense. If you cheat with another person sitting the exam, they have the same level of knowledge as you. So why would you believe their opinion over yours?
      I think it is commonly agreed that there is hardly anyone who does regular I&V opinions.
      So going to a random associate/senior associate wouldn't help you.
      You would need to find the person who does regular I&V opinions, most likely a partner. If they are willing to help you cheat then there are a lot bigger problems than one P6 cheater.

      Delete
    9. It would be very easy to have multiple scenarios if you really believe this a threat.

      Each document could have five statements that could vary. e.g.
      "a bull dog clip is a well known alternative to a paper clip" or
      "a bull dog clip is not an alternative to a paper clip"

      You have 5 of these variables in each document you are given (four docs. currently), then you would never have the same scenario as anyone else that sits P6. Different facts, same legal analysis.

      Delete
    10. I am up for people expressing opinions but please be more respectful. I think Gilman comments are a little disrespectful to trainees and attorneys. Why do you think they would cheat. These are highly skilled intelligent people who have been vigorously assessed throughout their entire lives. Why would partners would to aid their trainees to cheat. Its in their interest to have competent members of staff. The real test is work for the client. To suggest that people would cheat is a bit surprising coming from a fellow person in the profession. Yes there should be checks in place but don't paint everyone under the same brush.

      What about passing exam on a lottery. Is that cheating? Should we make everyone take the exam 3 times just to check they really do know how to pass

      Delete
    11. Its in the interest of current attorneys and partners to have capable and competent trainees for their clients. Why would they be aiding cheaters.

      Makes no sense why trainees would want to cheat. They have been heavily examined all their lives. Its in their interest to understand it well as they will be facing clients.

      You can have a viva similar to what they do at PhD level. If they explain well what they've done and why they've done it that way then that's good to me.

      Delete
    12. "Why do you think they would cheat."

      I say again: where people can cheat, they will. This does not mean that everyone cheats, but you will inevitably get enough doing it to call the entire exercise into question.

      And I say this based on my experiences at university, both teaching and studying. You would not believe how often I saw people try to cheat in exams, or to turn in papers that they had not written - and they did so because (in the context I working in at the time) they did not expect anyone to check.

      Pearl-clutching about basic facts of human nature gets us nowhere.

      Delete
    13. Fine then - select random (or all) candidates to be interviewed about the work they submitted. If they did not write it, a few probing questions will quickly identify that. PhD vivas are something a lot of candidates and examiners will have experience with and lends itself well to such a process.

      No doubt the next concern will be that candidates will be coached to answer the interview questions. In practice this is nonsense. You can't coach someone to do advocacy on specific facts; they must prepare for this themselves.

      Then it will be candidates will have secret ear pieces wired back to their cheating partners in crime. FD4 passing factories will be set up in foreign countries to undermine UK qualification. Where does it end?

      There is a trend in this debate to dismiss any potential alternatives for supposedly insurmountable difficulties.

      In reality, it is just an argument for the status quo in disguise. Fair enough, lets stick with the status quo to the extent that FD4 remains as a written examination. Is there any conceivable way in your mind that the exam can be improved that addresses the numerous concerns that have been raised? Or as do we just ignore legitimate concerns over the exam and hope the problem goes away?

      Delete
    14. You make no sense.

      You say where people can cheat they will, but then you acknowledge that not everyone cheats even though they have the opportunity to, so clearly not everyone that can cheat does.

      You say exams are the answer to cheating, but then you say you cant believe how often you saw people trying to cheat in exams.

      Delete
    15. "Pearl-clutching about basic facts of human nature gets us nowhere."

      Harsh but true. The basic premise - make it easier to cheat and more people will cheat - is simply true. I don't think Gilman is being disrespectful in the slightest.

      Coursework vs exams for raising standards is a broad question that could surely be answered by asking an education expert. Coursework in general has a reputation for lowering standards, but presumably there are some data somewhere?

      Delete
    16. I disagree with Gilman profoundly. We need to stop all this nonsense that candidates want to cheat.

      As a qualified attorney myself, I would never want to encourage cheating so to call everybody a cheat because they want change is terrible. Its probably one of the reasons why this profession is so backwards compared to other established professions such as accountancy, where fellow professions there are more open to change.

      We can't even agree to do the exams on computers. Even A levels and GCSE who have thousands of students taking the exams now have the capabilities to set these exams on computers. So backwards.

      I want robust assessments and I'm up for changing the exam system. Whether its coursework or reduce content in the exam, something must be done because I am fed up of this non-action from CIPA/PEB.

      Delete
  38. Nothing to see here, move alongThursday, 6 February 2020 at 20:01:00 GMT

    The Middlesex Report appears to have been taken down. Is anyone able to make a copy available?

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    1. I asked IPReg for a copy today and they emailed me a pdf of the report.

      Delete
    2. Any chance you could post it on here or ask Ipkat to add a link to it.

      Delete
    3. Done - I emailed the IPKat gmail account a few hours ago asking Rose if she can add it to the article.

      Delete
    4. A link to the report has now been added!

      Delete
    5. Rose has now edited the post to include a link to the article - thank you!

      Delete
    6. Great thanks. Shall take a good read of it this weekend

      Amiee

      Delete
    7. Having read the document, it is clear Middlesex Report is very damning about the PEB exams in general and especially FD4. Most of the recommendations were taken on board. The PEB should provide a full explanation as to why the outcome of this report was not fully implemented.

      Taking bits from it and say that you've adhered to the report is incorrect and present a false image that PEB has actually taken all points on board.

      Delete
    8. Why pay for an in depth review and then completely ignore it.

      I fear the same thing will happen again with this review.

      Delete
  39. I think Mercer means well and if he is willing to take on board the comments here and feedback from others in formal responses than that should be a good thing.

    However, if Mercer recommends any of the changes and PEB/CIPA do not implement them quickly, then this would be a slap in the face for all of us.

    ReplyDelete
  40. I should also add that there has been a disconnection between exams and real-life work for a while now and this needs addressing.

    ReplyDelete
  41. If Chris Mercer happens to be reading this - I just want to summarise the common themes are so far

    It feels most want FD4/P6 to change. The most popular suggestion is to move towards a coursework based assessment allowing candidates time to develop an understanding and study infringement & validity analysis in depth. The hope is the quality of infringement & validity opinions would be at a much higher standard. I can see this being a credible route as I've seen some terrible infringement & validity opinion reports from qualified attorneys in the past.

    Second is a university style exam - There are issues surrounding whether an academic study course would be a suitable replacement for advanced exams given that it is meant to be a fitness to practice exam and academics may not be suited to deliver this. On the other hand, candidates would be learning from the same source. The course could be taught by attorneys and exams set by attorneys. I do share some of the worries here for this type of testing.

    Keep it the same as it is. I think this is definitely not an option anymore. Otherwise, what's the point of this review. Most would agree that we should change the exam.

    Reduce content in exam and allow more time for candidates to develop their construction. Some have asked for it to be more like Paper C in that there must be one right answer. This again would be an ideal solution that I would support but clear training and expectation would need to be clear to all candidates. Like many above, I'm against adding further time to these exam.

    Follow the advanced trademark exams. I don't know enough about this area so perhaps someone could explain this further.

    P2/FD1 - Make it open book. The exam is about fitness to practice/advise clients not memorising the law. Limit to specific books. Calendars should be provided. I would agree with this too.

    ReplyDelete
  42. If moving to a coursework based assessment is dismissed owing to ethical concerns, then the current set-up surely has to be open to similar scrutiny.

    JDD have recently advertised their 2020 courses. Some of the tutors are current examiners.

    How can setting the exam, marking the exam, and profiting from teaching how to pass the exam be anything other than a conflict on interests? Create the problem and sell the solution!

    ReplyDelete
  43. I think Paper C has an ideal solution. I believe there may still be marks available for weaker attacks so perhaps not a yes/no answer but at least have marks available for alternative solution as well as the ideal solution. Time is a challenge.

    I like the new idea of a coursework style based assessment as it feels more realistic in the real working life. Infringement and validity analysis cannot be done properly in 5 hours.

    ReplyDelete
  44. There are ways to combat ethical concerns regarding coursework assessment but one can also cheat in exams. In fact, people are more likely to want to cheat in exams.

    We all abide to the ethical code of conduct so to now suddenly say candidates will start cheating because its switched to coursework is a little far-fetched. There are some issues like the nature, type, how its assess etc... but these can be resolved. The coursework route as some mileage and I'm keen to support this.

    ReplyDelete
  45. Unfortunately, the examination system we have at the moment do favour the big firms who have the most resources for training. Coursework would at least address the imbalance in training and provide a more level-playing field between big, small firms and industry. I see this as a good thing so that all candidates have a chance.

    ReplyDelete
    Replies
    1. "Coursework would at least address the imbalance in training and provide a more level-playing field between big, small firms and industry."

      Speaking as someone who qualified in a small department I do not recognise this at all. The cost of me taking P6/FD4 was basically the exam fee, a train-ticket, a hotel room in London for a night, a bit of study-time each week, and the Nigel Frankland P6 book. The total was probably no more than around £400.

      Contrast this with the cost of being away from potentially work for weeks, at a university that may be hours travel away, to attend a course that will inevitably cost thousands. That's quite an ask for a small firm.

      Consider also the impact this will have on people having to look after children and other dependants - particularly single parents.

      I for one do not believe I could have qualified at all this way.

      Delete
    2. You don't need to go to university to do coursework....You just need the patent, prior art and infringing document sent to your email.

      If anything it would be cheaper to do coursework than an exam. No need to pay for the P6 book, no need for a train-ticket, or a hotel room. All you need is access to case law and access to UKIPO decisions for formatting.

      It would actually be better for people with children. Instead of having to get childcare for multiple whole days to practice past papers the person could dip in and out as and when fits.

      Delete
    3. Consider the impact of a repeatedly failing attorney who now has small children and has to pay £400 + for the exam fee alone, arrange childcare for 5 hours at weekends multiple times to sit an exam, stay in hotel the night before exam because they cannot be guaranteed sleep with young children teething. Easily £1000+.

      In the modern world, the time at lectures can be minimized if not avoided; remote learning for example. One of the justifications for FD4 time pressure is that it replicates the job. The same is true of remote discussions with clients.

      It seems some are of the view that FD4 is perfect and no changes are required. However any potential changes are fraught with insurmountable difficulties such as plagiarism, childcare, and single parents.

      There is a certain irony in referencing how your in-house experience got you through FD4, whilst expecting others without this advantage to accept FD4 the way it is.

      Delete
    4. Gilman makes no sense. The exam fee alone is close to £500.

      Are you saying all training at the moment is equal for all trainees. I don't think so.

      I actually think coursework assessment is a good idea. It should be a tool for continual training and development as your career progresses. I bet if you ask for the exam scripts back - people will cringe at what they write. How many look back at their Fd4 scripts and thought what they wrote was the best I and V opinion.

      Delete
    5. I see the coursework assessment addressing the imbalance in training and resources. I think there are some issues to think through but generally I quite like the idea.you will still need to do this in your own time along with work.

      Exams in general are very disruptive for a firm and for the individual.

      Delete
  46. I wonder what Birss, Kitchen, Arnold et al. make of all this. Ultimately they hold the power for these decisions, so I'd be interested to hear their thoughts on how practitioners should be trained to approach these problems.

    ReplyDelete
    Replies
    1. No doubt they will definitely be against the stupid time pressures of FD4.

      Delete
  47. Let's retain the current paper, as it does test an important skill. However, let's remove the time pressure and intimidating exam context entirely.

    For example, an exam similar to the present one could be taken on a given day (the same day for all candidates), however candidates would have any time between one hour and ten hours to complete the paper, and would quietly leave and assemble their answer-script in a supervised ante-room when finished. Potentially also on an "open black book" basis. How the candidate allocates their time is up to them - also a real-life skill.

    A more nuanced view of "no conferring" could be taken with a more risk-based attitude. How many loudmouths did I know who preened after the Exam telling everybody who listened that "X was definitely invalid over Y". If such comments were made during a break-time, how much would that really assist a second candidate? The skill of the Exam is in applying one's own construction coherently. Even if, in a less supervised context, there was a small degree of conferring - how much would that help a candidate?

    With a more risk-based attitude to conferring, you could imagine a situation where the exam could be taken in a meeting room of a candidate's firm, under video camera supervision (with audio). An eight hour MP2 video is about 20 Gb? Gigabytes are cheap nowadays. The video of the exam room would be submitted along with the candidate's answer script, so that it would be easy to detect if serious bad faith had occurred (exam script being taken out of room, help being given during exam…). Initial candidate ID, and verification of unsealing and the sealing of the script, could be provided in the same video. PEB could sample a number of videos to ensure that rules were being adhered to. Disadvantage is what would happen in the case of a disrupted video recording - would that render the entire exam invalid?

    Thus, the exam could be self-administrated by candidates or firms if the PEB could tolerate this level of risk, because the exam is not one that is easy to cheat convincingly even if isolated "hints" are given out.


    ReplyDelete
    Replies
    1. Why not move to coursework if we are suggesting a 10 hour exam.

      Delete
  48. Speedy Resolution:
    What was the problem with the first review that a second review had to be instituted? As far as I recall, that one was pretty damning but nothing substantial was done off the back of it. For some reason, there were lots of tutorials on how to pass the exam and a handful of patent attorneys got rich teaching trainees the "correct" exam technique. Surely the only way to pass the exam should be by knowing how to carry out infringement and validity analyses?

    I don't think there is any need to carry out a further review. Many have offered perfectly good suggestions on here and the earlier posts on how to address the many failings of P6. What needs to be done is (i) someone to collate the responses from the blogposts, (ii) someone to circulate them to the PEB examining committee, (iii) examining committee to sit together and select one of the many perfectly sensible solutions and (iv) someone to announce the final outcome to the rest of the profession.

    I am happy to do (i) and (ii) above by this weekend so that we can get (iii) and (iv) done by the end of this month. I really do not want to wait another six months before we get to find out what the second review has found and then another six months before anything is decided and then a whole year after that before the changes are implemented.

    ReplyDelete
    Replies
    1. Thank you speedy resolution. We need to apply max pressure on CIPA to make sure changes take place

      Delete
  49. I suppose this is "unspeak", but what the hell:

    Fact is, FD4 examines to a level of sophistication that 95% of UK patent attorneys do not need to apply in their day to day job of removing added matter from American and Japanese EPO filing instructions. There is already a defacto elite of practitioners who do I&V work versus those who churn the foreign instructions. It should be reflected in the exam system.

    My suggestion would be: de-fang FD4 and rename it "freedom to operate" with fairly trivial freedom-to-operate examples based on two or three short and easy patents and possibly infringing products. Some of it could even be multiple choice, like the pre-exam. You could have a graded difficulty level as you work through the exam.

    This would make the route to qualification for the majority of office-action churning people easier and less traumatic.

    The "difficult IV exam" (the present FD4) would be run as an optional extra certificate, either by CIPA or by a private provider. Masochists with an emotional need to feel extra special could sign up for the year-in, year-out punishment such an optional certificate could provide, and then acquire the kudos of being able to render an IV opinion.

    We already have a defacto mezzanine profession, why not reflect that in the Examination system?

    ReplyDelete
  50. "Unspeak" actually makes a valid point. But the outcome of such a "mezzanine", as he/she puts it, strikes at the heart of what a professional is. It also would not have a good outcome on salary levels, because there will be a commensurate impact on salary banding, as any Tom, Dick, and Harry (sorry, Thomasina, Dick, and Henrietta) are able to pass the exam first time. So how many of the people who bemoan the difficulty of FD4 will be willing to accept a career-long reduction in earning potential of say 30%, for an "easier" qualification system? Roll up, roll up!

    I don't think many of the moaners would like such an outcome. I think that what they want is an easier test, but still retaining the respect and earning potential that comes from acquiring CPA status. Shame.

    ReplyDelete
    Replies
    1. Following your argument, your salary should be decreasing 30% now that you don't need to be an elite "CPA" to represent someone at the UKIPO?

      I dont think it is.

      Delete
    2. UK patent attorneys are one of the lowest paid compared to European, Asian and US counterparts.

      Look at fellow and associate survey

      My reasoning is that these PEB exams hold back a person career for so long it has a negative long term impact on wages.

      Delete
  51. Soon AI will be able to do all of the added matter-type work. Patent attorneys will have to get to grips with I&V or leave the profession.

    ReplyDelete
    Replies
    1. You've missed the point.

      Most people acknowledge it is a skill worth knowing. It's just assessed in a completely unrepresentative way.

      Delete
    2. No - I think we get the point so well that perhaps you are feeling a bit of cognitive dissonance? IV is difficult, ambiguous. It is hard to decide on in "real life", let alone an exam situation.

      The point is - Mercer should honestly and openly consider whether the profession should delete from the expected set of capabilities of a base-level UK patent attorney, the ability to perform a subtle IV analysis.

      Once the simplified exam structure is in place, the complaints will drop off significantly. I hope people have paid off their mortgages, though.

      Delete
    3. "Mercer should honestly and openly consider whether the profession should delete from the expected set of capabilities of a base-level UK patent attorney, the ability to perform a subtle IV analysis."

      Presenting it in this way is a false dichotomy. FD4 in its current form is not the only way to assess the ability to perform a subtle IV analysis. Barristers and judges have not taken FD4. Other countries don't have FD4 and IV is as relevant there as anyone else.

      All I see from FD4 purists are arguments for the status quo. Are you really that limited in thought that you can't see any way the process can be improved?

      Delete
  52. "Soon AI will be able to do all of the added matter-type work"

    Evidence?

    The question of whether or not an amendment contains added subject-matter over a given disclosure is really dependent on the technical field of the skilled person - i.e. - the technical context of the patent application. AI is terrible at discovering and applying context (in text, images, audio).

    ReplyDelete
  53. CIPA/PEB need to implement changes and stop ignoring review after review.

    The university report - can we have an explanation why most of this report was ignored

    Are they going to ignore feedback from here and others as well. I sincerely hope they don't

    ReplyDelete
  54. Why hasn't the patent profession have a union.

    If it wasn't for Ipkat many of us in the profession would still be sitting at our desk in the dark.

    I'm glad most people here are in favour of change. The profession needs modernising.

    ReplyDelete
  55. We should recall that PEB and CIPA are (wo)manned by people, most of whom are genuinely trying to do their best. If we discourage them by ad hominum arguments, who will be left? I believe this review is being carried out in the spirit of good faith and with a genuine wish to listen and improve matters. And I thank the folk involved.
    Someone said above 'Barristers and Judges don't do FD4' - very good point – although I do recommend keeping it.
    To all those who said things along the lines of - 'most (>95%) UK attorneys do agency office action work' - please remember, this may be true in your surroundings right now, but is not true generally, and may change for you in future – one never knows where life will take you! And what is more, there are many UK businesses and individuals who do seem to use our services!!
    We are very well respected in the world of IP, and the success rate in the EPO exams shows our training works. I shall repeat that – our training (for EPs) works! Let’s not break it!
    But it is seemingly not working for FD4.
    Someone above mentioned the very good syllabus and training materials available for the EPO exams – is that the difference? (As an aside - are the CEIPI seminars still offered here to any and all who want to attend?)
    As to reducing the amount of material in FD4 - this may well be a good idea, and making it open book (with, for example, only the black book allowed).
    Having written, taught and marked courses at university, I can see that Universities are driven by many things that do not sit at all well with a professional exam - needing to make a profit for example, needing to have people pass at certain grades, and pay fees (very expensive fees!). And attending a university course is almost impossible to fit in for those with caring responsibilities. The Bournemouth course style (3 short weekends and 3 months self-study) may be a good compromise.
    In summary – I suggest for FD4
    - a revised, well drafted syllabus for FD4
    - a(n) optional but recommended programme of 3-4 months of self-study materials, possibly with 1 or 2 short (optional) residential weekends, written by CPAs/RPAs possibly with academic assistance. The material at least available for free to those who have passed the foundations (very important for accessibility and diversity).
    - an exam carefully drafted to test what is taught on the syllabus and in the programme of self-study (maybe give some guidance in each exam as to the number of terms that may need to be construed (yes I know in practice we don’t have this guidance – but we do have time to reflect and settle the issue before leaping in in practice)
    - a reduction of material to read in FD4 itself (e.g. by 15-20%)
    - 1 (or max 2) selected books to be allowed in an open book exam (e.g. the Black Book – and loaned to students in the exam if they cannot bring the office one
    - recommendation that you do not sit the exam until after 3 years in the profession and having dealt with, or at least reviewed in depth, at least two IV scenarios in practice
    Read Max Drei’s comments too –sensible and respectfully delivered.
    Go Mercer team – work your magic and bring peace and comfort that we as a profession and PEB and CIPA as our organisations are listening and changing things whilst keeping what is working!

    A

    ReplyDelete
  56. I would agree with most points from A. The exam needs a big reduction om content and clearer guidance.

    An good alternative proposal is coursework assessment. This is also some merit.

    Most trainees wont get to do any I and V work as these are generally reserved for higher fee earners so coursework good well be a good way for candidates to actually gain some experience.

    ReplyDelete
  57. Emboldened by the encouragement from Nanny Mouse, I offer a further comment on the problem of examining for competence in I and V analysis.

    I wonder whether there is evidence of syllabus creep. When I sat Finals, in the 1970's, there were 5 Papers, two on drafting, two I+V and lastly, on the Friday, the Practice Paper. In I+V, the number of words to be read was reasonable. Is it really not possible to revert to that economical format?

    Consider the way they qualify in Germany. The Amtsjahr is spent in the Patent Office and the Patents Court. But with bifurcation, that court does validity but has no experience of infringement. So the outcome is that patent attorneys get qualified without being examined on their competence to write infringement opinions. This is one reason why UK patent attorneys have a standing avantage over those in Germany when competing for the task of giving Europe-wide (even world-wide) business advice to corporate clients who want to have a reliable assessment of risk.

    When I qualified, the EPO had only just opened its doors for business. So, in my firm, all files were UK files. Now, given the success of the EPO, pretty much the only thing most trainees do is prosecute at the EPO. And this has been going on now for so long that pretty much the only experience the trainers of the trainees have is prosecution at the EPO. When UK opinion writing is examined, but hardly anybody is doing it within the employer organisation, it is little wonder that trainees are failing the I+V exam and angry about it.

    Can anybody provide a cite to the famous Theory Of Justice (Rawls, I think) which bases itself on the proposition that one writes a system of laws knowing that you will yourself be made subject to it, but what you don't know is which minority of society you will be born into (Jewish, say, or black). So, it is in your own interests to write the laws that will be fair to everybody. Those who devise the syllabus and write the exams should put themselves in the position of a candidate sitting it.

    The clients cherish the solid and business-oriented advice they (often) get from UK patent attorneys. I think some sort of I+V exam is key to maintaining the market edge of UK patent attorneys. It should not be beyond the capabilities of CIPA to devise a procedure for testing aptitude to "tell the wood from the trees" when given a patent, an accused embodiment and a piece of prior art. My gut feeling is that some trainees have this talent, but others not, and the public deserves from the profession a qualifying exam that is fair and effective to separate the sheep from the goats. The very existence of a distinct UK patent attorney profession might depend on it.

    ReplyDelete
    Replies
    1. "My gut feeling is that some trainees have this talent, but others not"

      This is a very basic point which I think causes a lot of heart-break for trainees but which ultimately needs to be confronted directly and realistically: some people, however intelligent, however successful in an academic background, are not cut out to be patent attorneys. Others need more time to adapt to the profession.

      I think a lot of the outrage about P6/FD4 is a failure to accept this, particularly amongst those - very successful in school and university - for whom P6/FD4 is the first exam in their lives which they have not passed. The first time they have experienced the feeling of failure that the rest of us have already had some experience with.

      Delete
  58. Justice? Rawls? Found it: "Original position".

    Here the Wikipedia page: https://en.wikipedia.org/wiki/Original_position

    ReplyDelete
  59. The coursework option is a plausible and reasonable option to test infringement and validity given the stresses of modern day.

    ReplyDelete
  60. The suggestion to move towards coursework model of assessment is valid.

    I sat Fd4 a few times and in the year that I passed I didn't get to the inventive step and advice part. So FD4 does not provide a satisfactory outcome as most candidates pass by only completing some sections.

    Coursework would at least allow candidates to tackle all sections of the paper: construction, infringement, novelty, inventive step, sufficiency and client advice.

    Off course the other option is to reduce content of materials tested in an exam. This may work but the variability every year is hard to control. My experience is that eventually Examiners feel the need to increase content of an exam paper (as it is now evident in the 5 hour paper where candidates are now expected to do more for marks) whilst everybody's handwriting gets slower.

    The other option is to increase exam time but it would be unacceptable and unfair to expect candidates to focus intensly for 6-7 hours. Bear in mind others may have exams the next day or two.

    So the option of coursework seems the most appropriate route for me.

    ReplyDelete
    Replies
    1. I don't believe the current FD4 exam is working. Far too much to do it little time given. Coursework option sounds ideal to me.

      Delete
    2. Let's be clear on why the coursework option sounds ideal to so many people on this page: because they think it will be easier.

      That it would cost thousands to attend, require way more of the candidate's time (not least because FD4 would not be the only exam switched to coursework), greatly bias the process towards those who can attack the coursework problems together with other candidates, bias the process against those (like single parents) unable to make the much greater time commitment of attending classes - these don't matter in their view.

      Delete
  61. How long is this going to take. Its already been 2 years since the 2018 paper and nothing has been done.

    ReplyDelete
  62. More emphasis should be placed on EQEs. We should encourage trainees to focus on passing EQEs first. In my view, UK exams are no longer essential to do the job so it should be a nice to have qualification rather than essential.

    ReplyDelete
    Replies
    1. Yes, let's put all our eggs in a single, European basket. I mean, what could possibly go wrong? (*glances at the news*)

      Delete
    2. The point Anonymous is making I believe is that EQEs are far more important than UK exams for qualification and daily practice. So emphasis should be placed more on EQEs.

      Delete
  63. Why would Chris Mercer advocate anything other than the status quo. He is a tutor on the FD4 JDD course, a course which is sold on the basis that it teaches you how to pass the exam (not become proficient in I&V analysis).

    The head examiner of FD4 is also a JDD tutor.

    This whole review stinks. Seriously, who at CIPA thought it was a good idea to put a JDD tutor in charge of a review with a board/panel that includes PEB examiners?

    ReplyDelete
    Replies
    1. Because he is a member of the Establishment. And the defining characteristic of an Establishment, is not that it is conservative, but that it knows how to survive.

      Delete
  64. I wonder if the lack of diversity at top management level in PEB/CIPA has made it more difficult to change things. Is this why they are so resistant to change. No new views, news thinking, new & more modern culture being taken on board at a high level.

    This month, IP inclusive released report showing how bad diversity is in the profession.

    ReplyDelete
  65. rather the lack of diversity

    H

    ReplyDelete
  66. Here is the report

    https://ipinclusive.org.uk/diversity-data-for-the-ip-sector/

    Key outcomes

    The “bigger picture” points that we can draw out from the survey results are these:
    The IP professions as a whole include a reasonable proportion of women.
    However, the proportion is significantly lower in senior private sector roles, and among IP barristers, IP Office employees and patent attorneys, and higher among trade mark attorneys and in so-called “supporting” roles such as IP paralegals, secretaries and business support professionals.
    We have very low levels of ethnic diversity, being at present mainly white.
    This does, however, appear to be improving among newer recruits.
    We have a reasonable level of diversity in terms of sexuality, compared to the overall UK population.
    Many non-heterosexuals are, however, unable to be “out” in the workplace, and free text comments suggest that there are still improvements to be made in our sector’s understanding and acceptance of less “conventional” forms of sexuality and gender identity.
    In terms of social mobility, the IP professions do not appear to be as bad as we might have feared. The responses show that it is – or at least has been – possible to access the sector from less privileged backgrounds.
    The percentage of Oxbridge and other Russell Group graduates appears to be higher in the private sector, and among more senior respondents, and also – perhaps worryingly – among newer recruits, than it is for the overall survey cohort.
    We have very low proportions of disabled people and of carers for disabled people.
    Moreover, many of our disabled professionals feel unable to tell their employers about their conditions.
    IP professionals who are not currently members of one of the so-called “minority” groups appear less likely to engage with a diversity assessment exercise.
    This highlights one of the most difficult – but also the most important – aspects of persuading more people on board: that those who enjoy the most privileges do not always appreciate the importance of levelling the playing field.

    H

    ReplyDelete
  67. Some people have commented above that if we don't change the exams people will leave the profession.

    I don't think that is the case. Given that the exams are so far from reality, i would expect more people to leave the UK profession and go to an EU country than leave patents per se.

    This is what i intend to do. I dont want to get into specifics, but my personal situation is different from most other people in my firm (i.e. not a young, single man) and i can't keep up with the amount of time they can spend on these exams (however even that doesnt seem to be rewarded). At the moment im just paying lip service to the PEB finals.

    I came to the UK for university but once i have sat the EQEs i will move to germany/france/ireland where nobody will care about CPA and ill be able to afford a house and have a better quality of life etc.

    ReplyDelete
    Replies
    1. I was talking to a recruiter about this and apparently there seems to be more interest than usual about foreign moves, particularly to law firms in Germany. They mentioned that they might be organising a presentation/networking evening about this in the near future so follow some recruiters on LinkedIn if you want to be alerted of this!

      Delete
    2. "ireland where nobody will care about CPA"

      Umm, just which exams do you think "registered" Irish patent attorneys have taken and passed?

      Delete
    3. Gilman - honest question. Do you think there is absolutely nothing wrong with the PEB exams at the moment?

      Delete
    4. Any organisation would be concerned about the lack of diversity. Not PEB/CIPA though - they don't seem to care.

      I don't expect anything to change. We have been asking for changes to exam system and the lack of action is beyond belief.

      Delete
    5. "Gilman - honest question. Do you think there is absolutely nothing wrong with the PEB exams at the moment?"

      I doubt you will get an answer but based on the cherry picking of quotes and strawman/status quo arguments to date, it's reasonable to assume some just do not want to countenance any problems, which somewhat ironically is part of the problem.

      It is very simple: those fit to practise pass FD4; those that are not fail. The exam is an essential type of assessment and I am surprised other professions are not adopting equivalent measures so that they too can have an edge over their foreign peers but get paid less for the privilege. Any positive suggestion about how the exam itself (i.e. not implementing coursework alternative) can be improved for all stakeholders is the same as wanting qualification handed to you on plate, wanting to eliminate the exam altogether, or wanting to remove the IV skillset as a requirement for UK qualification.

      Change is coming whether some like it or not, but bear in mind that an uncompromising resistance to change is usually met with uncompromising change. We don't have to look too far into our recent history to see this.

      I will accept whatever the review recommends, even if it is the status quo. Will you?

      Delete
    6. There has to be very good reasons as to why the status quo is recommended. If CIPA/PEB explore in detail other options and provide VERY good reasons as to why these credible alternatives cannot be implemented then yes, that is fine.

      However, it is very clear that P6/FD4 needs to change. Otherwise, we are wasting time with review after review. Most don't like the current exam format (coming from qualified attorneys and trainees) so I think we should be more open minded about change.

      Coursework is a good option but if more time is needed to fully assess the merits of this route then I can accept. But if CIPA/PEB basically go on to say that no changes are required because we think the current system is perfect then sorry, they are a joke.

      Delete
    7. "Gilman - honest question. Do you think there is absolutely nothing wrong with the PEB exams at the moment?"

      1) I see bigger problems with the content of FD1/P2. Particularly the confused and basically incomplete way in which design law is covered.

      2) The 2018 FD4 exam was obviously not well done, but the rush to blame the entire concept of an I&V exam is basically misguided and based on the idea that anything (especially something widely believed to be easier like coursework) would be better. The solution is better validation of the exam before it is issued to uncover this kind of problem (e.g., no-one knowing what a gantry is).

      3) Look at how the French patent attorney community addressed their low pass-rates at the EQEs for a better solution to this issue. It wasn't by just concluding that the whole concept of the EQEs was wrong based mainly on the views of people who kept failing them, but instead taking training for the EQEs more seriously.

      Delete
  68. As a person who was an equity partner for 15 years before taking early retirement, I weary of reading here the demands of students for the exams to be scrapped, or neutered, or rendered easy enough for all to pass who put in a solid measure of hard work. Why? Because I know from countless "beauty contests" what motivates corporations to choose one particular patent attorney firm as its "strategic partner", its preferred outside patent counsel. it's the quality of the people.

    It is depressing, but fully understandable, that the profession in the UK finds itself recruiting more and more out of the pool of Oxbridge graduates. It was not always thus. Here is yet another sign of widening gulfs in society.

    The corporations now demand proof of "diversity" which is in principle a good thing, but competition, red in tooth and claw, between firms determines which firms survive, which ones prosper, which persons they recruit and, of course, how tough are the qualifying examinations.

    Compare London taxi drivers, their qualifying examination and "the knowledge". We patent attorneys don't yet have an App that will navigate the client through the patent process or write an I+V opinion that the client can rely upon and use for making business decisions with budgets of hundreds of million dollars or Euro. Instead, as ever, we need talented and hard-working, socially intelligent and business-savvy human minds on the job. The exams must be fit for purpose. And that's so so hard. But the problem clearly must be addressed, in a way that retains the confidence in those students that have what it takes to succeed in our wonderful profession and bring reputation and success to their chosen employer.

    ReplyDelete
    Replies
    1. If I follow your logic MaxDrei then half of the most successful entrepreneurs are clearly not smart enough/ not talented enough/ not deserving enough.
      Bill Gates dropped out of university - no degree; Mark Zuckerberg dropped out of university - no degree; Richard Branson never went to University; Alan Sugar worked at the age of 16 - no university.

      Many of my inventors and clients do not all go to Oxbridge. Some inventors are from the building trades or gained qualification via apprenticeship. They didn't go to university but can build a successful career and have a mind to invent things. They come from all walks of life so the profession should reflect this more.

      Delete
  69. MaxDrei, I am not sure why you think that students are asking for exams to be scrapped, etc. They are not. They are only asking for exams to be fair. Which currently they are not. I am too weary to repeat everything many have said above so perhaps you should read all the comments before coming to such an ignorant conclusion?

    Also, is it really fully understandable that the profession selectively recruits from Oxbridge? I suppose it is also equally understandable that white men are more in demand. They are after all better than people of colour. Don't even get me started on women. Who told them they could leave the kitchen?

    ReplyDelete
  70. The reputation of the UK patent profession is actually viewed quite negatively. I went to a student fair about a year ago and they ask questions about the culture of the profession, how progressive is the profession etc...

    We have a high drop out rate, bad work/life balance, high stress and workload, unfair exams, lack of diversity, incapable of change, installing a fear culture and no autonomy. I'm not sure if this is a wonderful profession as some have indicated it to be.

    Sure, the money is not bad but other peers around Europe are paid much more and have a better work/life balance.

    Not sure I am that proud to be part of this profession. But I'm in and would like it to change for the better... starting with exams.

    ReplyDelete
    Replies
    1. "The reputation of the UK patent profession. I went to a student fair about a year ago and they ask questions about the culture of the profession, how progressive is the profession etc..."

      Really not sure what this is based on. Most people, even within general legal practice, have no idea what a patent attorney is or what they do. I have had solicitors try to claim that there was no such thing because "I have been in legal practice for 20 years and never heard of it!".

      The questions asked are standard questions (and issues) for all the UK's professions.

      Delete
    2. You have literally just argued that the UK profession has global prestige, but now you say the UK profession is unknown.

      Are you a troll?

      Delete
  71. PEB should explore all options: changes to exam format, coursework option, university option, viva option, work in practice option and explain in detail each option.

    ReplyDelete
  72. I have no problem recruiting from Oxford and Cambridge, but other trainees from other universities also needs to be given equal chance. To say that the exam is demanding and so we can only recruit from OxBridge is wrong. To say that the exams are demanding and therefore it would be hard for single parents to put in the studying hours especially women is also wrong. To say that if you are disabled (mentally or physical) then it is difficult to cope with the exams and carry out this job is absolutely wrong. To say that we cannot recruit people from different backgrounds and diversity is shocking in this day of age. CIPA/PEB are really really poor at supporting trainees in general especially from those who need it most. If they do provide this support, it is not clear enough where to access this support/help from.

    As an example, I did struggle at university at times especially financially as I did not come from a stable background, but thanks to bursaries and great student mentorship I was able to get through my studies.

    I'm afraid to say that I do not feel proud to be in this small IP circle if this is how we generally view things.

    There is no reason to be so resistant to change. Change is a good thing and should be progressive to reflect the times. We should listen and support each other especially in this small profession.

    ReplyDelete
  73. The replies to my posting of Tuesday Feb 11 are disappointing. Consider the qualifying exam that concert musicians endure, when auditioning for a seat in the orchestra. Behind a screen they should play, else the old farts will choose the white man every time. Our qualifying exams are double blind and that's hugely important and to be defended with full vigour.

    ReplyDelete
    Replies
    1. I have given up trying to understand you. What point are you referring to?

      As a point about diversity, what if only white men have the money to pay for music lessons. Or what if the auditions are held in the school holidays. Chances are you will pick a "white man" without noticing anyway.

      Exams are no different. Currently exams favour people who can spend the weekends working and can be taught exam techniques on JDD courses by teachers such as Chris Mercer himself, or the Head Examiner herself, Dr Sarah Boxall.

      Delete
    2. The obvious point Max is making is that coursework (the main choice to replace FD4 of those protesting on this page) would not be a blind process, as the tutor would know the tutees. If anything, it would be more open to the biases that people mention.

      Delete
    3. Hardly, you would still submit it anonymously with your candidate number.

      If anything it is the opposite, there would be no need for all these jdd courses run by examiners, so examiners would never have met the candidates unlike now

      Delete
    4. Marking coursework can be distributed to Examiners who are not involved in the process at all.

      You can have a different person setting the coursework and a completely independent panel marking the coursework.

      These things can be overcome.

      During my PhD, vivas are done by external professors so completely independent from the work you've done.

      Delete
  74. In the original blog post, it is mentioned that marked papers can be obtained via an FOI request. How is this possible since PEB is not a public body as far as I am aware?

    I know that GDPR can be invoked to obtain data indicating which pages of your script had a mark, which is of limited use compared to a marked paper.

    Either way, are FOI and GDPR really something to which candidates should have to resort?

    ReplyDelete
  75. Not sure if this has been covered but has anyone spoke about the lack of training days trainees receive. I currently get 1/2 a day for an exam is which nonsense. Other profession give their trainees far more time for TRAINING!

    ReplyDelete
    Replies
    1. My firm gives 0.5 day per exam only once and pay exam fees only once. So nothing for retakes.

      Delete

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