The essential information for candidates of the UK patent exams has now been released. The information has been provided on the PEB website and can be read here. This information is likely to be the last official information candidates will receive from the PEB on how the exams will be run. We have also now received the results of the FD4/P6 survey from last week's UK patent exam update.
Essential information
In the latest exam information we finally learn how long the exam will be. 5 minutes is provided every hour for screen breaks. 20 minutes is provided for downloading, printing and scanning. It is still unclear whether the screen breaks will be discretionary or enforced.
The system has apparently been tested by PEB and CIPA staff, patent attorneys and senior examiners. Candidates are required to take part in a trial of the system in the week commencing 21st September. There will be no opportunity for changes to be made to the system before the exam in response to candidate feedback.
A 22 page document providing instructions for Designated Contacts has also now been provided. The document provides information on how to declare potential conflicts of interest and the level of supervision that will be required, e.g. invigilators must give full attention to invigilation and should not read or do work. It is unclear whether candidates who go to the toilet must be accompanied (compare first bullet point on page 7 and second bullet point of 3.2).
Designated Contacts will have 30 minutes to print and distribute a copy of the exam paper to all the candidates at their venue. If the start of the exam is delayed, extra time will not be given at the end of the exam.
Results of FD4/P6 survey
In a previous IPKat post, we provided a link to a brief informal survey on FD4/P6. This survey was created by Katfriend Asawari Churi (Pinsent Masons) in order to collate opinions of this particularly controversial exam. The survey ran for just under two weeks, but received more than 70 responses from qualified or part-qualified attorneys. The full results of the survey can be viewed here.
Many of the respondents to the survey believe that the FD4/P6 needs a major rethink. A majority (58%) of respondents believed that the exam does not test fitness to practice. Indeed, there was a not-insignificant proportion of respondents (28%) who knew someone who had passed FD4/P6 "when they were clearly not fit to practice". On this note, the model answers recently provided for candidates are a beautiful illustration of how passing the exam depends not on fitness to practice, but on mastering a peculiar FD4/P6 exam technique. A model answer script for FD4/P6 bears little to no resemblance to a real-life freedom to operate opinion.
A very pertinent point raised in the IPKat comments last week was that it would be impossible for the model answer to be written in the time allotted for FD4/P6. Writing the answer would take someone writing at an average writing speed over 8 hours to complete. A superhuman writing speed would be required to write the answer in 2-3 hours as required in the exam (the approximate amount of time available for writing in the 5 hour FD4/P6). The model answers are not supposed to be perfect answers but are supposed to provide candidates with an example of "the level of detail and reasoning required" in the FD4/P6 exam. However, even allowing for the longer format of the model answer than might be expected in an answer script that uses abbreviations and symbols, having enough time to get even 50% of the marks would still be a stretch for a candidate with average writing speed.
Many of the comments provided in the survey are thoughtful and constructive. It will be interesting to see how the survey results compare with the full findings of the Mercer Review when these become available. CIPA has indicated that we may get an update on the Mercer Review in October. The Mercer Review aims to look at the broader question of patent attorney training and education. However, given that there is undoubtedly a serious problem with FD4/P6 (as not only this survey but also the numerous comments on IPKat testify), the hope is that FD4/P6 will be a topic of particular focus for Chris Mercer, the chair of the Mercer Review.
As always, please keep comments civil.
Essential information
In the latest exam information we finally learn how long the exam will be. 5 minutes is provided every hour for screen breaks. 20 minutes is provided for downloading, printing and scanning. It is still unclear whether the screen breaks will be discretionary or enforced.
The system has apparently been tested by PEB and CIPA staff, patent attorneys and senior examiners. Candidates are required to take part in a trial of the system in the week commencing 21st September. There will be no opportunity for changes to be made to the system before the exam in response to candidate feedback.
 |
| Designated Contacts should not eat crunchy food |
Designated Contacts will have 30 minutes to print and distribute a copy of the exam paper to all the candidates at their venue. If the start of the exam is delayed, extra time will not be given at the end of the exam.
Results of FD4/P6 survey
In a previous IPKat post, we provided a link to a brief informal survey on FD4/P6. This survey was created by Katfriend Asawari Churi (Pinsent Masons) in order to collate opinions of this particularly controversial exam. The survey ran for just under two weeks, but received more than 70 responses from qualified or part-qualified attorneys. The full results of the survey can be viewed here.
Many of the respondents to the survey believe that the FD4/P6 needs a major rethink. A majority (58%) of respondents believed that the exam does not test fitness to practice. Indeed, there was a not-insignificant proportion of respondents (28%) who knew someone who had passed FD4/P6 "when they were clearly not fit to practice". On this note, the model answers recently provided for candidates are a beautiful illustration of how passing the exam depends not on fitness to practice, but on mastering a peculiar FD4/P6 exam technique. A model answer script for FD4/P6 bears little to no resemblance to a real-life freedom to operate opinion.
 |
| FD4/P6 attempt |
Many of the comments provided in the survey are thoughtful and constructive. It will be interesting to see how the survey results compare with the full findings of the Mercer Review when these become available. CIPA has indicated that we may get an update on the Mercer Review in October. The Mercer Review aims to look at the broader question of patent attorney training and education. However, given that there is undoubtedly a serious problem with FD4/P6 (as not only this survey but also the numerous comments on IPKat testify), the hope is that FD4/P6 will be a topic of particular focus for Chris Mercer, the chair of the Mercer Review.
As always, please keep comments civil.
UK patent exams: Essential information for candidates released and FD4/P6 survey results
Reviewed by Rose Hughes
on
Tuesday, September 15, 2020
Rating:
Reviewed by Rose Hughes
on
Tuesday, September 15, 2020
Rating:
Follow the IPKat on LinkedIn 
![[Guest post] Thou shalt not discriminate the Lego block over any other kind of product – GRUR speaks out on C-211/24](https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgWJYQUJNvYydrZcjwSHPuxd14xX3_48aBusHKBogY-Wg1BPSJSABbFFjmGiUV3aqG2npP9xYaIl1vtWK5AsqGOQPgRD2TWFLhyyc4xGm1fHDD-tt9kHcrSSgAyju2P9wSKz0VW6h7D5MD4Hxd9vREyxKYzlMRNXxxtxc3DiNsXppfVaxgSxAMV/s72-c/21742619125_7c9e53cd39_o.png)
![[Guest post] Comparison of wine and gin: the EUIPO’s unquestionable Similarity Tool](https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiNfTEBXiPVS0XjZi4mNE1OtXLxXiEp1PUgcUK7MMMXlfyTkO5SMXv-VCMXXNdS_F1XdMMxYca1VbBTGvvDeTVpo5x-5YwR7atQJmK3x32T8LACpf4308kht3nEtaxPwEPcGGrB0s5xjGktmQPOiVwPVLRO5JbW19qupc7xUtiVutvaWHow0OpBkA/s72-c/Picture%201.jpg)
![[Guest post] Muddying the waters of copyright – a rapid reaction to today’s IPEC decision which sees the sinking of the WaterRower’s claims for copyright protection](https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh7chFANC7ppmZl4_nlR6_hZEcg6cOhVEJNVXqki4p82BoVlcLFotuOXzHWYD5lKLiiK_kRoWeXmJjjaV2DpoKsAWq8U3LFioO5W_841a9gcfDIFjvZWcGqfnr0jWJNtyXptIYR_8bxCssaDkJ9KMokuSqy1g65Il7p2hPwo4MfRCEGoUPQJesvbg/s72-w400-c-h189/Screenshot%202024-11-11%20at%2018.20.45.png)
Posts
Staplers are banned from this year's examinations... FD4 must be about staplers this year.
ReplyDeleteNot for me to comment, having passed the exams in the late 1970's (at the 3rd attempt) but it does seem a bit like "shooting yourself in the foot" to publish a document billed as a "model answer" to illustrate the amount of detail required to pass the Paper, when the "model" demonstrates that it would take a full 8 hours to crank out one's own answer at anything approaching that level of detail.
ReplyDeleteThe candidate model answers of previous years are at least truthful and evidence what is reasonably possible for candidates under exam conditions. By comparison, the unpaid volunteer's model answer was NOT conducted under exam conditions. Basing your exam technique on this will guarantee failure, simply due to time pressure. Publishing this as a "model answer" is dishonest and confusing for those candidates putting in honest work and time to pass the exams and join the profession. Publication of this "model answer" is more than "shooting yourself in the foot", it is dishonourable.
DeleteIf you read previous examiner's comments there are statements like:
Delete"Good con and inf... ran out of time"
"Tried to hard to get the model answer..."
By PEb publishing these answers they are encouraging people to provide the level of detail required to get the model answer, but this has been shown in the past to result in a fail because you can't give the amount of detail required in the time. Dont just take my word for it, the Examiner's say so themselves. I dont see why this generation should be required to achieve something that previous generations couldn't?
My best advice is to ignore the model answers, like a P6 examiner told me, you will have a good "con and inf" section but won't finish. You need to get to the end, even if you miss out a lot of stuff. That is the only way to pass.
and this is why it should be (controlled) coursework... so people could actually give a solution they were proud of, stating the points they knew, providing a summary of the turning points etc... instead of now which is getting to the end at all costs.
As far as I can recall, candidates sitting the exams under normal circumstances are not accompanied to the toilet if they need to go during the examination. Why, then, should that be required this year?
ReplyDeleteIt also seems bizarre to me to permit candidates to use the "scan to PDF" function on a mobile phone but then to prohibit the use of email unless sitting the exam in the presence of a designated contact. In many cases the most efficient way of transferring a file from a phone to a computer may be to send it as an email (particularly if the phone and computer will not talk to one another by other means such as Bluetooth or Airdrop). Otherwise, a candidate will need to plug their phone into the computer and manually transfer the file. Why should candidates at home be allowed (possibly required, if no other means of scanning are available!) to do this but not to access their emails for the same purpose with appropriate supervision from the remote invigilator?
Great to see lots of peoples responses in the survey.
ReplyDeleteInteresting that Mercer is publishing something in October, get ready for the cover up in 3...2....1....
To be fair, what did you expect from a guy that sells courses on how to pass FD4... Does anyone think it would be in his interest to make an exam that didn't require ridiculous levels of exam technique to pass? I wonder if he identified himself as being conflicted like all the invigilators have to?
More to the point, why did CIPA commission him? Very poor decision in my opinion.
The review should have shone a light on the dark areas instead, and this is just a theory, i imagine the aim will be to increase the PEB monopoly.
I have read the survey comments, very interesting.
ReplyDeleteThere is one comment along the lines of, university is not acceptable because it would price out people that aren't in international/national firms.
For the record i don't think university is the correct option, but i disagree with the reasoning.
Nowadays each final exam is £500, each JDD is £500, so for sitting all the PEB exams, a JDD course for each exam, a few resits...its now over 5k. Plus travel + hotels etc.
This is the price of a law degree at a university. The idea PEB is a low cost option is complete rubbish.
This is something that IPREG have previously pointed out with respect to foundations. In that a JDD course for each foundation and the exam fee costs the same as a university course. Apart from there is no quality assesment for the JDD course, and the teaching lasts 1 day, as opposed to a few months. So its worse value for money, and there is no way anyone (e.g. IPREG) can check whether these training courses satisfy QAA guidelines etc.
With foundation-sitting firms graduates don't know when they sign up that they are signing up for a training program that is completely unregulated.... honestly, i think this is terrible.
Remember a university course is not just a financial cost, but also a time cost. If you are part of a team of 1 or 2, or even 3 or 4 in house IP representatives, then being out of the office for the 3 months of the foundation courses is not an option... And I can't imagine the advanced exams will be any less time.
DeleteCoursework may be an alternative, but it isn't a financial consideration, but a resources / time pressure consideration.
Last time I raised this (ironically with Mr Mercer) his view was tough luck... Which doesn't bode well for this review to be honest.
Yes, but the trainee still needs to learn the same amount whether you go through foundations or a university course.
DeleteSo the decision is whether the firm takes the hit (less chargeable hours, away for 3 months) or the trainee takes the hit (keeps billing for those 3 months, most study done in own time).
A company obviously prefers for their trainee to be billing for 3 months when they should actually be studying, doesn't mean this should be allowed to continue.
The amount of people that pass all 5 foundations in one year is 15%. This statistic is never reported, but highlights the lack of support/time given by firms for foundations. Imagine if only 15% of queen mary passed, there would be outrage. But firms dont mind this, they dont give study time anyway, so its not like its a bigger time commitment, not part qualified so no pay rise, can leave because they dont have any qualifications that the market wants... whats not to love.
Yes, i think it would be fine if the trainee got those "3 months" back, spread across the year for example (so small departments could function), but my (first-hand) experience is that foundations are a way for firms to avoid committing to any substantial training. Both in terms of resources (told to find most of the information yourself using the syllabus and past papers) and in terms of time (my firm gave 1 day off per foundation to study) so kept working and billing for those 3 months.
DeleteNot sure how that is particularly fair considering, on signing the training contract you are not told that you will be given 5 days off to study for a qualification that is supposed to take 600 hours?
Many IP solicitors at the top UK IP solicitors' firms (and, I think, some IP barristers) take the Oxford postgraduate diploma in intellectual property law and practice, even though it is not a required qualification for IP practitioners in those professions as far as I am aware. It would be interesting to know what they feel they get out of it, and whether - if the powers-that-be conclude that a university course could or should replace some or all of the qualifying routes - that course might provide any useful insights.
DeleteHowever, I agree with the comments above that a university course is not the way to go. Not only does this raise the accessibility issues mentioned above but it is also vulnerable to being closed down by the university if it is no longer felt to be sustainable (e.g. due to low student numbers, inadequate income, etc) as happened with the old Manchester University certificate.
A more fundamental problem is that the interests of academics do not necessarily overlap sufficiently with the needs of practising attorneys. Full-time academics have research interests and expertise which are often - almost by definition - quite far removed from everyday considerations and tend to operate more at the level of policy, legal theory, etc. Plenty of law academics have never actually practised law, and even if they have done so, they will not necessarily have practised before the EPO, UKIPO, EUIPO, or the intellectual property courts of this country. (This was certainly true of the teaching staff at the university where I took the CIPA-approved postgraduate certificate some years ago.)
This is well-illustrated by an anecdote that I also mentioned in my comments to the Mercer review: shortly after qualification I went along to a series of (public) IP law seminars at a highly-ranked university. In the Q&A at one such seminar I ventured to raise a point based on practical experience of the topic under discussion. I remember well the tone of disdain in the speaker's voice, as he replied "Ah, I assume that you must be some sort of *practitioner*..." - not a light-hearted joke, but rather genuine annoyance that a mere practitioner had dared to sully his pristine theory!
All of this is by way of saying that, if we *do* move to a university-administered qualification system, great care needs to be taken that it does not close off access to the profession; that it is not at risk of abrupt termination or interruption; and, crucially, that its contents are both relevant to the needs of mere practitioners such as ourselves and delivered by staff with appropriate knowledge and experience. This latter task would surely be a huge burden on CIPA/IPReg to administer and I find it difficult to envisage how universities would be willing to hand over such a degree of control to an external organisation with needs that do not necessarily align well with the interests of their academics.
I agree I don't think university is the right option. In relation to FD4 specifically, there also seems to be a view that IV is still an important skill in the UK profession and that some kind of practically oriented test should continue. It also sounds like a coursework style exam is the way many people would like to see things go. How difficult would it be for a group of firms to work together to get a coursework-style IV exam approved by IPReg? Perhaps this would break the PEB monopoly and encourage a rethink if it started to hit them in the pocket.
DeleteMy personal belief is that an exam is unnecessary for IV. Rather than examining IV, perhaps just including a requirement that trainees give (under supervision) a number of IV opinions as part of their training in the first 4 years before qualifying. I think some will protest on the grounds that some firms don't have sufficient IV work to give to their trainees, but then perhaps that just illustrates that IV isn't the important skill some make it out to be in the profession.
As far as i understand it, most people do not want to hand over all control to a professor who researches sufficiency for a living.
DeleteInstead, i think they want a professional education provider setting the framework for the exam, ensuring the content doesn't go further than is necessary, a proper complaints procedure that isn't just there to milk money of trainees.
When you look at FD4 past papers in the last few years.. 2018 the infringer was in 3 lines of size 10 text on a full A4 page no diagram, 2019 dealing with entitlement issues.
In both these cases i think it would benefit from a professional education provider saying to the Examiners, what are you trying to test? and how does hiding the infringer in the text help this? How does bombarding a candidate with entitlement issues help infringement and validity?
At the moment the Examiners are able to run a muck adding more and more content and issues that go far beyond fitness to practice. At the moment the exam is not even tested to time and marked? How is this acceptable when i've paid thousands over the years to sit these exams?
"Instead, i think they want a professional education provider setting the framework for the exam, ensuring the content doesn't go further than is necessary, a proper complaints procedure that isn't just there to milk money of trainees."
DeleteCompletely agree with the above comment. Couldn't have put it any better.
"In both these cases i think it would benefit from a professional education provider saying to the Examiners, what are you trying to test?"
Again, totally agree, that is exactly what should be happening, and what clearly isn't happening.
A small proposal: if it is considered desirable for the exams to more closely resemble actual practice - and since the exam is supposed to assess fitness for purpose rather than student excellence (ie, it is more like a driving test than an academic qualification), I think most would prefer this to be the case - the most beneficial rethink would be on the matter of closed book/open book.
ReplyDeleteAn exam assessing fitness to practice as an attorney which requires you to not have your legal texts to hand when assessing a complex problem is like a driving test where you have to do the whole thing without ever using your mirrors. Not only does it not resemble actual practice, but it imposes constraints which directly conflict with good practice.
Or a coursework based assessment against a set of defined competencies. For too long firms have relied on a conveyer belt of trainees who are put forward for examination with little training in the hope that some pass and can be billed out at a higher rate, those that repeatedly fail either pay for resits (or their own training) or are shown the door. This is exemplified in the bad firms, you know who you are, who chop the bottom 20% of trainees and backfill with cheap replacements. Time to stop the something for nothing culture and actually invest in training and development of all trainees who enter the profession, perhaps through a CIPA delivered series of courses.
DeleteThe model answers for 2018 provide a clear example of how fashions change. Both answers break up the claims into numbered sub-paragraphs. When I did this in a mid-1990's P6, that year's examiners' comments explicitly said that this approach was calculted to annoy the examiner.
DeleteThe 2013 answer uses a table in landscape format. Is the use of WORD's table function permisdible/possible using the on-line system? Difficult to do such a table in portrait format. In previous years the instructions to candidates have required you to write on alternate lines, implying portrait format.
Can confirm, over half the trainees from the last 2 cohorts have now left my firm. Never to return to being a patent attorney. All clever, all phds etc. Decided that they didn't want to spend the best years of their life revising for exams, the reward being you get to copy foreign associate instructions and submit it on your own.
DeleteI don't get why people revel in the fact that exams have low pass rates (the hallmark of P6). They are supposed to test fitness to practice (i.e. provide advice to a lay person). So what they are actually boasting about is that the training you will get doesn't provide you with the skills to help a member of the public? How is this anything to be proud about?
Fair enough if the exams were to qualify as an "elite" patent attorney vs. a normal patent attorney, but that isn't the point of these exams.
Which are these allegedly terrible firms? I think we need a list so that aspiring trainees can know where not to apply.
DeleteI know myself and my firm have been highly critical of FD4 and also the advanced papers. We do not think it is fit for the modern firm and modern day training of patent attorneys. Mercer must report accurately. I think there is an opinion that advanced exams should be done in coursework or university assessment. However, what should be clear is that many do not want to the system as it operates in now.
ReplyDeleteThis is a comment in the linked survey:
ReplyDelete“I passed P6 fifteen years ago. What the examiners look for seems to have changed over time, if the PEB's model P6 answer is anything to go by. I would not regard someone who prepared the model answer as being fit to practice - the model answer looks like something a patent searcher would draw up. In my day, it was the norm to prepare answers that read like a court's judgement, which was a far better test of fitness to practice.”
An individual who passed the exam 15 years ago asserts that the volunteer (someone inextricably linked to the current assessors of those fit to practise) is not fit to practise, and is on par with a patent searcher.
The same individual asserts that the prose/style required 15 years was that akin to a court judgment and thus indicative of fitness to practise.
My own observations:
If a member of the profession equates the model answer to that of a patent searcher, who does not have to sit FD4/P6, what does that say to those who work in the profession and can’t pass? What an endorsement of both the current examiners and candidates.
I have looked at the sample pass scripts for 2004 and 2005 and to me they do not resemble a court judgment so the examiners of those years seemingly weren’t requiring this type of answer. Aside from this, surely only judges and barristers need to worry about providing such an answer style. If so, then why do judges and barristers not set and take FD4/P6? Do judges consider all issues in an I&V case and write up the judgment in 5 hours?
From the above, It is clear to me that the fundamental problem with FD4/P6 is that “fitness to practise” is a completely nebulous assessment criteria that varies from person to person. Assessment of nebulous criteria is unlikely to result in satisfactory outcomes. Even if it could be determined that “fitness to practise” has a defined criteria, the focus would then turn to whether the current exam can be used to determine whether the criteria is in fact assessed. Presenting the answer in a required format is unlikely to be determinative.
Undefined assessment criteria does not enable a credible assessment, irrespective of how the answer is presented. What a truly disappointing state of affairs.
1) P2: Include one compulsory 25 mark question on advice relating to I&V issues. Increase the exam time from 4 to 5 hours. Most importantly, make it open book.
ReplyDelete2) P6: Move to coursework where trainees are actually taught how to carry out I&V/FTO analyses rather than how to pass an exam. Perhaps taught by looking at real cases (one mechanical and one chemistry) over the course of two/three days. Followed by an assignment (with the choice of mech or chem) which trainees have to turn in in 2 weeks. The course can be accredited and run by CIPA.
3) Make it compulsory to have a trainee logbook which logs all the various type of work to which the trainee has been exposed and a checklist setting out the minimum requirements before any advanced papers can be taken. Firms needs to be held accountable for the quality of training.
Approved.
DeleteBetween 46:00 - 47:00 minutes of the "FD4 for trainees" lecture ran by the previous head of the PEB and the head of the CIPA education committee they were contrasting the difference between Problem-solution approach and Windsurfing/Pozilli.
ReplyDeleteAfter explaining how inventive step is crucial component to becoming a patent attorney, very very important you know what its all about, not fit for practice if you don't apply it properly.
The differences between PSA and Pozolli being: "It's just not combining documents" 46:29 - head of the education committee......."yep" - Ex - head of the PEB.
Seriously are these people fit to practice? Do they know how to apply inventive step?
Documents can be combined in pozolli. See MOPP 3.43 for factors to consider when combining documents.
Lions led by donkeys.
Who thinks this is worse than last year when the current chief examiner of FD4 said a claim can lack novelty but still be inventive?
Does anyone know if the 5 min screen breaks are going to be enforced? If so, do we have to sit in front of the computer with our eyes closed or can we get up, go to the loo, etc?
ReplyDeleteAs I have noted in previous posts on a different, but related thread, I passed P6 on my 11th attempt, having experienced an inverse correlation between my real-life involvement with I&V issues, passing after having attended a tutorial with one of the examiners to find out what they were looking for and giving them what they wanted.
ReplyDeleteMy real-life experience was that it can be a bit of a lottery, and no amount of careful analysis guarantees a succesful outcome. My first exposure to I&V was when I was an Examiner with the UK Patent Office, where I was once one of a three-man panel hearing an inter partes infringement action. When this was appealed I attended the court proceedings as an observer. The outcome was something of a surprise to all, as the judge based his decision on construing a particular term to mean X: both parties (and the Patent Office in the original hearing) had agreed that it meant Y, so neither its meaning nor its relevance to I&V had been argued.
Several of the fellows in the industrial practice where I was employed while qualifying had been involved in various reported cases. One observed that it is vital in any litgation, being seen as "the good guy" can be as important as having an elegantly-presented case, and there did seem to be more than a grain of truth in that.
I don't know what the solution is. Handling I&V issues certainly can be an important part of professional practice, and a bad outcome for client can have serious consequences. In one case I was involved in, while the matter was eventually settled out of court (almost at the steps of the court), the threat of legal action had been enough to put off potential customers, resulting in that division of the company ceasing trading. But the scenario and the procedures adopted by the legal team bore only a passing resemblance to model I&V questions and answers.