BREAKING: Mercer Review on UK patent attorney exams released

As trainee patent attorneys across the country begin their final days of preparation for the UK qualifying examinations, CIPA today released the long-awaited Mercer Review. The Review has been published in the latest version of the CIPA journal (CIPA login required). 

Background: A need for change

The CIPA president announced the launch of the Mercer Review at the CIPA East of England regional conference back in 2019, following the debacle of the 2018 FD4/P6 examination (IPKat). The flood of criticism levelled at the Patent Examination Board (PEB) following so-called Gantry-Gate (after the borderline incomprehensible subject-matter of the 2018 FD4/P6 paper). The UK qualifying patent examinations were criticised, as they had been for years, for being out-dated and unfit for the purpose of actually assessing whether a candidate is fit to practise (IPKat). 

It is now nearly 2 and a half years since the Mercer Review was announced. The delay in the Review was reportedly due to a change of scope following the move to online exams in the wake of the COVID-19 pandemic (a move that has been beset with its own issues, IPKat). Meanwhile, a radical shake-up of the European Qualifying Examinations (EQEs) has been announced (IPKat), with the aim of making the EQEs more fit for purpose. 

Final days of revision
The Mercer Review includes a review of the submissions on a broad range of topics related to patent attorney training and exams. Members of the Review Group included Chris Mercer, Lindsay Pike (Informals Hon. Sec.), Joel David Briscoe (former Informals Hon. Sec.) and former CIPA presidents Julia Florence and Roger Burt. 

The Mercer Review's Recommendations

The Mercer Review provides a large number of recommendations, some more concrete than others, and these are summarised at the end of the Review. Here is a selection of a few of the recommendations that this Kat considers may have the most practical consequences if implemented:

All trainees should take the PEB Foundation exams

At the moment, it is possible for trainee patent attorneys to take either a University run course and exams or the CIPA Foundations exams. The Mercer Review notes statistics that candidates who sat the foundation exams were more successful in the Final Diploma examinations. The Review therefore recommends that all trainees should be required to take the PEB Foundations exams. Different providers could continue to provide the training, but the examination would be the same. This recommendation is repeated multiple times throughout the Review. 

The Final Diplomas should focus on assessing the core skills

On the content of the exams themselves, the Mercer Review recommends that the final examinations should not require detailed advice on points not relevant to the main topics. The Review notes the view that there has been  "examination creep" over recent years, whereby the exams have gradually become over-complicated and too long. The Review thus recommends that the exam should be limited to assessing the skill they are designed to assess (i.e. drafting in the drafting exam), and should not attempt to test tangential skills or knowledge. The Review also recommends that each exam should be no longer than 4 hours. 

On the technical complexity of the subject matter, the Mercer Review recommends that the drafting paper (FD2) should relate to "generally-accessible technology", but is silent on whether the same should apply to the other papers, such as FD4. 

Mark schemes should not be provided for the Final Diploma exams

On the controversial topic of marking schemes, the Review notes the view that marking schemes may detract from a focus on providing a holistic answer, e.g. by rewarding FD4 candidates for defining inconsequential words. The Review therefore recommends that the PEB no longer makes marks schemes available but "provides more detailed examination reports and provides train-the-trainer sessions immediately after release of the results". The Review also recommends that the PEB should make it clear that  the examiners "are looking to see whether the answer as a whole merits a passing mark so that candidates do not concentrate on 'mark gathering'". The view that answers should be "holistic", will be familiar to anyone who has attended training sessions by the more grey-haired of the profession who recall the days in which the correct approach to P6 was to contemplate, without putting pen to paper, for at least the first 2 hours of the exam. 

If marking schemes are dispensed with, the PEB will have to work hard to ensure that the requirements for passing the exams are adequately communicated to all trainees, and not just those lucky enough to attend expensive training courses. 

Exams should be online and semi-open book

Perhaps most radically, the Mercer Review recommends that "candidates should have read-only access to a limited selection of sources to be determined by the PEB", to make the exams closer to real life. Continuing with online examinations is also recommended. Despite a problematic build-up, the online examinations were generally considered a success (at least compared to the rather chaotic e-EQEs). Part of this success was arguably the simplicity of the technology compared to the complicated system requirements for the eEQEs. This year, the UK PEB exams are using a commercial proctoring system that doesn't allow much room for technical error (and importantly requires users to be appropriately dressed...presumably to spare the blushes of candidates and invigilators alike). The Mercer Review recommends that going-forward the PEB should use the system as the EQE to reduce the complexity of systems candidates are required to be familiar with.  

CIPA, IPReg and the PEB

As the many comments on IPKat testify, many trainees find interactions with the PEB frustrating, to say the least. The Mercer Review notes the general lack of awareness that, despite the fact that the PEB operates from the CIPA office and its staff are employed by CIPA, the PEB is independent of CIPA. The Mercer Review also notes the submissions raising concerns about "the openness and transparency of PEB, particularly in relation to the marking of examination scripts and appeals". The Review recommends that IPReg should review, with CIPA, the requirement for the PEB to be independent of CIPA in terms of its governance and financial control. 

Improved training

Lindsay Pike (Honorary Secretary of the informals) and Joel David Briscoe (former Honorary Secretary) were co-authors of the Mercer review, in particular Chapter 2 on training. A particular concern raised in the responses to the review was the disparity of training offered to trainees at different firms and in-house. The Mercer Review thus recommends that IPReg should require prospective trainees to be given details of the training scheme with which they will be provided, preferably in the form of a training contract.

In response to the publication of the Mercer Review, the Informals have commented:

We feel that the Mercer Review has been fair across the board with their recommendations - and has really tried to come up with some actionable recommendations based on the responses, which have also had to evolve over the pandemic. For example, many of the responses called for computer-based exams, which we now already have – so the focus shifted to ensuring that the computer-based exams are here to stay, and are provided in an appropriate manner.
We have already started reviewing and updating our new starters handbook to give those coming into the profession a better idea of what to look out for, which is a direct result of this review. We are also looking to create resources that will give potential trainees (and current trainees) an idea of what to look for in an employment contract, such as days off for training, the route to qualification (university or FC exams), claw-back on training costs if you move jobs, and the like – which were all clear pain points from many trainees’ responses.

Final thoughts

The Mercer Report therefore provides some clear recommendations that could be implemented by the PEB should they wish to improve the current offering to patent attorney trainees. There have been reports into the UK patent exams before, for example the Middlesex Review on FD4/P6 exam (provided as an Annex to the Mercer Review). However, little was done to address the concerns raised in the Middlesex Report. The hope is that the eminent voices of Mr Mercer et al. will be less easy for the PEB, CIPA and IPReg to ignore. 

Critically, nothing in the Mercer Review will affect the examinations taking place next week. To everyone taking these exams, good luck!

Further reading

26 Feb 2019: 2018 FD4 (P6 - Infringement and Validity) Pass Mark Reduced

8 March 2019: Gantry-gate: CIPA releases statement on FD4/P6 (Infringement and Validity)

4 Feb 2020: Gantry-Gate: Have your say in the Mercer Review

13 April 2021EPO plans radical shake-up of EQEs 2024 onwards

BREAKING: Mercer Review on UK patent attorney exams released BREAKING: Mercer Review on UK patent attorney exams released Reviewed by Rose Hughes on Friday, October 08, 2021 Rating: 5

44 comments:

  1. Absolutely classic- despite being 2.5 years in the making it gets released the Friday before exam week. Echoes of when it was announced the 2018 paper had some "issues" the week before EQEs. When you've delayed that length of time surely a few more days makes sense to give candidates some breathing space during exams?

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  2. I'm glad Mercer has finally come out though I doubt nothing will change.

    They have missed a trick though with online exams. The IT online move this year and requirements appear to be even more complex and once again, all burden is on the candidates (for everything). Why is that more and more burden is placed on candidates taking exams. It has taken a significant amount of time away from preparations. Not to mention the 2 mock exams because they screwed up the first one.

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    1. I couldn't agree with this more - I think this year's online exam is much more complicated for candidates and employers and once again, it places much more emphasis and burden on candidates. The goal=post seemed to have significantly shifted last year. I would have preferred the much simpler approach last year.

      Mercer could address why the burden is shifting more over to candidates. They should not be worrying about set up and IT requirements but instead focus on preparing for the exams. I know candidates at my firm had to buy new printers, some of them buying new phones, speakers etc.. as they are not compatible with the current system. It also adds a lot of pressure on the firms too - no one can go into work that week whilst candidates take their exams.

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    2. Hi Anon, don't forget that the Mercer Review is reporting on the points raised by those that responded to the call for action. The fact the burden is shifting over to candidates wasn't raised, so it can't be addressed.

      In addition, this is the PEB and IPReg's duty to make sure the exams are adequate - not CIPA (of which the Mercer Review was commissioned and formed).

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    3. Maybe this needs to be looked at because I completely agree that there is no too much on the shoulder of candidates. Last year was a fair balance. This year, things seemed to have gotten more complex for them.

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  3. It will take another 10 years to implement any recommendations. Its ridiculous how long this took.

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  4. Still doesn't really address the issue of the unfit for purpose examination of FD4 - What's the point of it? It is far better and realistic as a coursework assessment. No client will pay you or indeed take your advice to request "injunctions" or sue others/stop their commercial activities based on 4 hours advice on infringement and validity. There are so many other matters in the commercial world that influences a company's decision to sue or not, and most of this is relevant to the actual infringement or validity assessment.

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  5. Some suggestions seems plausible like standardising trainees learning but in practice, it is very difficult to achieve this. The fundamentals of why exams are so time pressured especially in FD4 and its relevance could do with more addressing but as I haven't fully read the document, I shall reserve judgement.

    I would have thought a more modular approach throughout the year like the EQEs is moving towards would make more sense for the modern profession and the new way of working life. Having a set of exams once a year is really old-fashioned and out of date.

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  6. I agree that exams should focus on simple basic standards for attorneys and that the purpose of the exam is not to provide more and more complicated subject matter or clever obscure pieces of law/area. Unfortunately, the exams have gotten more complicated and much harder to digest and understand as years gone by. Take FD4 for example, the amount of materials required to analyse, and candidates to understand complex subject matter in infringement and novelty sections is too much. It is no longer testing basics. There is far too much to read and analyse in the time given. It is also very repetitive. Claims should be shorter allowing candidates more time to actually reach their judgements + provide reasons to do so rather than rushing to the finish line.

    FD2 is another example. Testing simple drafting skills should not require candidates to be confused about the subject matter. They should understand it and draft a simple claim that covers the invention but recent exams have made it very complex etc...

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  7. is there anything in the Mercer report to justify the eye watering £500 fees per final exam. This is a barrier, especially to those who have to pay from their own pockets as their firms no longer supports them. I cannot see why this cost is so high especially if we are moving towards computer based exams and all the burden (as someone pointed out earlier) is now placed on candidates to get their equipment correct.

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  8. I am no fan of FD4. There is one recommendation that gives me hope:

    "FD4 should be limited to requiring the candidates to demonstrate that they can construe a set of claims according to the case law in the UK, evaluate prior art, determine whether the claims as construed are novel and inventive over that prior art and determine whether the activities of a potential infringer are infringing acts under UK law and should not require detailed advice on points not relevant to the main topics"

    I might be overly optimistic, but it sounds like they want a more focused exam. The reference to UK law and construction is interesting. If this means construction requires you to apply UK law, this is much better than the current format. E.g. 2016 paper lightweight meant whatever the examiners said it meant (even using client letter to support their view!!??), no need to consider Catnic or any pesky authority on the matter

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    1. I read this as a push-back to the recent drift increasing the marks for the advice section, so that the advice section became effectively an FD1 part B question in itself. The duplication in scope is entirely unnecessary. It would also make marking easier as there is less dependence on what the 'correct' advice is based on conclusions on validity and infringement.

      It would also mean the syllabus for FD4 could be trimmed further and the risk of marks being given for aspects that were not in the syllabus (hello 2019) reduced.

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  9. FD4 exam is especially over-complicated in recent years and more materials keeps getting added to it. They need to reduce its complexity. You are required to do far too much in the available time. Construction, infringement, novelty, inventive step, sufficiency, amendments, advice. There is far too much reading and analysing to do. They could make the documents more easily digestible by labelling the figures for you give the time. They want a detailed inventive step argumentation but provide little time for candidates to reach that section.

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  10. For 2.5 years of consideration, this report seems quite vague and does not seem to offer much in the way of concrete next steps. Yes, we all agree the exams need changing. How will this happen? By when? Will candidates wait another 2.5 years?

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  11. I don't mean to disparage the huge amount of work that has gone into reviewing and collating all of the responses to the consultation, but... *that's it?*

    Remember that what sparked all of this was an increasing volume of complaints about FD4 (P6) in particular. With regard to overhauling this most controversial of the Finals papers, all the report recommends is that:

    "FD4 should be limited to requiring the candidates to demonstrate that they can construe a set of claims according to the case law in the UK, evaluate prior art, determine whether the claims as construed are novel and inventive over that prior art and determine whether the activities of a
    potential infringer are infringing acts under UK law and should not require detailed advice on points not relevant to the main topics."

    This says absolutely nothing about the key concerns shared by many candidates and trainers, namely the sheer volume of material to consider, the proliferation of multiple prior art documents / multiple embodiments / multiple potential infringements that have been seen more and more frequently in recent years, and the time pressure imposed on candidates as a result.

    One could make a reasonable case that even the most egregiously lengthy FD4/P6 papers of recent years did not stray beyond the remit of construing claims, evaluating prior art, assessing novelty and inventive step, and determining whether or not any infringing acts had occurred. That was never seriously in doubt. The review's recommendation in this respect therefore seems to entirely miss the point.

    Based on this, I cannot share the optimism of Anon at 14:48 (above), even if there are token nods to "examination creep" elsewhere in the report, given that "examination creep" appears to be a term which is linked only with duplication of material across multiple papers rather than being focused on the central substance and methodology of the most controversial papers.

    As someone who sat and passed all of the UK papers almost a decade ago, and who will therefore not be directly impacted by any actions taken or not taken in response to the report, I have to say that this feels like a big missed opportunity to address the central issue that has exercised so many people over the years, even if some of the other recommendations regarding attempts to standardise the "non-Finals" aspects of training more generally are to be welcomed.

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  12. I too agree with Cynic. There is far too little detail on FD4. The biggest problem with FD4 as seen over recent years is the sheer volume of materials to analyse and read. Its far too much and then to be expected to complete each section in detail. Its wholly unrealistic!

    Please reconsider FD4. Its not fit for purpose and I really don't see how these recommendations would change anything about FD4.

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  13. Good suggestion about a pathway for qualifying as a trademark attorney. I got completely done over by picking a firm that did foundations.

    Good idea to have a common set of foundation exams no matter the training route. Will be great to see all the firms cry when they realise the pass rate for 5 foundations (i.e. becoming part qualified as per QM) in 1 year is around 20%. Or maybe they will rejoice - lower wages for longer.

    Anyway, big power grab by the PEB (all foundations exams -> controlled by PEB, Litigation skills -> more of it to be controlled by PEB...). Maybe it is a good time to question what proper educational experience members of the PEB actually have....?

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    1. It is not a recommendation by the PEB to have a common set of foundation exams. I understand the PEB does not particularly support this recommendation.

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  14. Given how much in these exams depends on exam technique, not providing the marking schemes would take away one of the few tools candidates have in preparation for these exams. How can you give a "holistic" answer when you do not have sufficient information about what is required of you?

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    1. Especially as the "Examiner's remarks" usually aren't really worth much - they typically just contain scathing remarks that the candidates failed solely because they weren't good enough to pass.

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    2. This is a very good point- getting more detailed examiner's reports/ mark schemes is the only guidance candidates have for is expected in FD4. The exam is already totally changeable year on year with goalposts moving at random - having no mark scheme seems a backwards step.

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    3. Getting rid of mark schemes will only favour those who take courses and those in larger firms as they can afford more resources. Once again, candidates in smaller firms or smaller in house firms will struggle.

      How are candidates suppose to learn and pass an exam without no mark schemes and knowing what they are learning will be correct. It is such a bizzare suggestion.

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  15. I'm confused how getting rid of mark schemes would be good for students, especially for those who can't afford to go on courses. That is crucial learning material being taken away.

    It seems bizarre how removing mark schemes can improve training. How can candidates revise if they don't know what they have practice is right or wrong. This is one of the biggest issues of FD4 - nobody knows what is deemed the perfect answer. No one knows what is expected of them.

    If you are going to get rid of mark schemes for exams, why did they not consider coursework route or university route?

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  16. PEB exams have been a tool used by many firms as an excuse to suppress wages.

    The changes recommended here would not reallt help candidates training, experience and their pay packages. One point i do agree with is that the exams have become too long and complex. Apart from that, I really don't see much will change from this review.

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    1. Totally agree. Wages for UK attorneys have been suppressed compared to their counterparts around the world for a long time. PEB exams certainly have a hand in helping to keep wages LOW in this profession.

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    2. Wages have historically been kept low and it seems likely that the PEB exams, especially the artificial FD4 exam, has been a big contributor to that low wage. However, I know some firms around London are increasingly disregarding examinations in their annual review to decide on career progression and wages based on individual performance at the firm. I hope that many firms will follow suit. Off course there is a benefit to passing exams but not everything should be weighted on them. Firms are beginning to see this now and there is increased competition for EQE qualified and/or near-qualified attorneys.

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    3. Alot of firms have been reasonable with wages recently as far as I understand. The PeB exams are mostly irrelevant to everyday practice and workload and some firms do recognise this. It was touched on lightly by Mercer but really, there needs to be an independent review on the impact or significant these PEB exams have on modern attorney practice.

      I (like the majority of attorneys) deal mostly with European cases. There is very very little work on I&V projects in my firm over the 10 years I've been in the profession.

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    4. Other firms however use qualification as a means to cap pay- in some cases with "trainees" having 7/8/9 years experience but missing one UK exam are paid the same as they were in their 2nd and 3rd year since the only route to the next pay band is qualification.

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  17. For an organisation which prides itself in the scientific training of its membership, the comment in the Mercer report that “the reports analysing statistics on PEB examinations written by Julia Gwilt… indicated that candidates who had passed FC1… were more successful than other candidates” is surprising. Julia Gilwit’s report from 2019 actually noted that there were no statistically significant differences in the pass rates between candidates taking different routes and indeed in 2018 the pass rate in FD4 for candidates who did not take the PEB route was actually higher than for those who did. Rather other factors, such as the level of experience of trainees sitting the exams and the training and support that they received were much more important.
    Too many of the report’s proposals seem ill thought through and unduly prescriptive. It is naïve at best to think that the current university providers will happily convert their current courses into examination prep for a CIPA exam. If they do not then candidates will simply end up sitting exams twice, once to satisfy the university providers and then again to satisfy CIPA. Or else, the university providers will shut up shop and the burden to teaching trainees the basics of intellectual property law will be handed back to the profession.
    Similarly, abolishing the EQE exemption would also mean more exams all round. An easy thing to propose if you are already qualified, less attractive if you aren’t, ignoring that is the time and costs which will be involved in getting trainees prepared for the exams and getting those exams marked.
    Is this really what the profession needs now, given that the vast majority of the work undertaken by the larger training firms now is before the EPO and not the UKIPO?

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  18. It feels like a missed opportunity here. I really would have hoped FD4 issues would be tackled. I didn't see much exploration around coursework or modular examinations (like the EQEs are moving to) at all.

    Having the same old system (but worse - getting rid of mark schemes so that candidates are really in the dark) feels like a complete waste of opportunity to radically shake up the PEB examination system.

    It needs to reflect modern way of life and practice. Nowadays, not many candidates do UK work at all or very little of it and this should somewhat be reflected here. I'm not saying that FD4 contents should not be tested, but I feel there are plenty of other ways to test this.

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  19. The recommendation to have all trainees take the foundation exams seems almost a joke...

    "The Mercer Review notes statistics that candidates who sat the foundation exams were more successful in the Final Diploma examinations."

    Of course this is the case, they are largely just filtering for people who are good at passing exams!

    Compare the UK vs Australian system for FD4: The UK exam teaches a student how to rush through and prepare a 'just good enough' opinion, aiming for that elusive 50% mark, and barely reviewing the material due to the contrived examination setting.

    In contrast, a typical Australian FD4 equivalent here: (https://handbook.uts.edu.au/subjects/details/77895.html) is a semester long course with 10 modules and 4 assignments, presumably allowing a trainee to fully grasp the concepts and prepare opinions in a more normal time scale.

    For a profession that is all about the detail, which do you think has a better learning outcome for providing complicated IV legal advice?

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    1. Agreed. It's always a rush job and some sections are badly executed due to the extreme time pressure and complex materials. It actually has the opposite effect as I do not feel much confidence giving an infringement and validity opinion to clients now and I've passed FD4 3 years ago now. I got the magic 50% so just crawled over the line somehow. I hope my confidence improves as I progress. In real life (my situation anyway) there are multiple Attorneys working on I and V projects with checks and regular interactions with the client. it similar to what you do when drafting a notice of opposition - there are multiple Attorneys and we make sure we give ourselves sufficient time before submission.

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  20. They keep packing more and more issues in FD4 and the time given is not sufficient to be able to deal with all these issues plus find the nuances of the paper. It's far too much to do and it really is going we'll beyond scope of the paper. Far too much packed in FD4.

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  21. Moving online is a good move. My concern is that it is always more difficult to check answers on screen compared to on paper as there are probably more minor mistakes by typing but also, there now a fear that more will be added to the papers because candidates can type. One would hope the review addresses how 1. Materials in paper are not increasing and 2. How candidates/examiners account for the inevitably more errors due to typing errors on screen. In a time pressured environment, it is difficult to spot.

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    1. Very true. Much harder to spot errors on screen and time pressure examinations definitely contributes to this.

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  22. Does anyone has a link to the full report?

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    1. It's in the latest CIPA journal

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    2. Hi Anon,
      https://www.cipa.org.uk/journal/ is the link for the full report. This link is behind a CIPA membership wall, so if you don't have that, reach out and I can give you a PDF copy.
      Ta,
      J

      Delete
    3. https://www.cipa.org.uk/news/review-aims-to-modernise-and-improve-patent-attorney-training-in-the-uk/

      Delete
  23. I do agree with alot of recommendations in the Mercer review. It is true that the PEB exams have gotten very complicated especially FD4. There is alot of overlap with FD1 in the advice section but recently they have started to introduced other law issues like priority issues into FD4. This issue and many other legal issues have been extensively tested in FD1 so its a bit unfair to load complex issues into FD4 too. The FD4 paper is already overwhelmingly long in my view and needs to be shortened and simplified. The PEB exams is to test basic competences of I&V in FD4 and we should remember this. It should not be used as a springboard to load various complex issues in multiple papers (mainly cross over between FD1 and FD4).

    For FD1, I agree that it should be open book and not a memory test. Sound Advice given to client should not be reliant on memory and you wouldn't do this in real life. There are sometimes obscure topics and it should try to be eliminated.

    I'm not sure that getting rid of mark schemes will help but if they do, what is the replacement? The option of training the trainer is good but in smaller firms, how many Attorneys will give up time and billable hours to help train trainees. Also, this must be standardised so that all trainees get a basic level of training. From my experience, training is very different across the firms and there is no standardised training for final examinations.

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  24. Basic and standardised learning for final examination varies so much across the profession. Some firms may not want to share their training and development programme with their competitors.

    One (radical) suggestion is that CIPA levies a fee on firms or charge a fee to candidates to access a series of lectures similar to the EPI lectures ran for pre EQE.

    This at least ensure those candidates in smaller firms or in house get the benefit of basic expectation and training for final exams.

    I'm sure most firm would be happy to pay for this as long as the fees are not horrendous.

    CIPA can run these courses for FD1, FD2, FD3 and FD4 to ensure fairness and standardise learning.

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  25. I do appreciate Mercer and his fellow colleagues for taking the time to do this review (although it did take a long time to publish). I do think Mercer could recommend more radical changes to the current system. To me, FD4, clearly needs to be slimed down significantly. There needs to be more communication as to what examiners want for FD4 and other papers too. Particularly FD4 is a difficult exam to prepare for given that there has been so much variation in standards, subject matter and material content year to year.

    My concerns about final examination still therefore remains especially for FD4. It is no secret that this exam has been overloaded with so much material to analyse under extreme time pressure. I would have hoped that there are more concrete steps to ensure this does not happen. It seems that PEB may take the points on board but they could equally ignore it. Therefore, wouldn't it also be useful to get IPREG involved if (like most in the profession) people would like to see changes and the recommendations in the review to be implemented for final exams.

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  26. The UKIPO provides very good and detailed opinions on infringement and validity. I would be keen to know whether they needed to take a test that is similar to FD4 to be able to provide that same level of work. It would make sense to see what the requirements are and training that are required from the UKIPO for their staff to be able to issue I&V opinion.

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  27. It's not only examination creep that's the problem, it's examination overload too particularly for FD4.

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