The EPO is running a consultation on the joint proposal from the EPO and epi for a new European Qualifying Examination (EQE) for trainee patent attorneys. Full details of the proposal and the consultation, which takes the form of a 25 minute Questionnaire, can be found here.
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| A modular approach |
The EPO-epi proposal is to transform the EQEs into a series of shorter modular exams taken at more regular intervals throughout a candidate's training. The modules will variously test candidates' legal and procedural knowledge, their prosecution and drafting skills, as well as their ability to advise clients.
Model papers for the new EQE are available to try in WiseFlow (or can be downloaded from the EPO website). All of the modules will be taken by candidates in a digital format. There will also be increased use of auto-marking in the earlier modules, switching to manual marking as candidates progress.
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| Proposed EQE modules |
The new examination format proposed by the EPO and epi is, in part, about making the examinations more suitable for a digital format. The shift of the pre-existing EQE format online during the pandemic had a rocky start. The recently released Annual Report of the Boards of Appeal 2021 revealed a very large increase in appeals relating to the EQE. In 2021, 53 appeals were filed relating to the EQEs, compared to 15 in 2019 and 16 in 2018. The Annual Report suggests that this was due to the fact that the 2020 examinations were cancelled because of COVID-19, which meant that there were a high number of participants for the 2021 examinations. However, the cancelled 2019 examination does not explain an increase in appeals by a factor of 3.5. A more likely explanation was the issues candidates encountered with the WiseFlow system (e.g. when candidates were only provided with the German examination paper at the start of Paper D (IPKat)) and various issues with the papers themselves. Many candidates have been successful in their appeals (e.g. D 42/21, D 31/21, D 54/21, D 26/21, D 48/21, D 41/21).
Fresh thinking on patent attorney qualifying exams is welcome. The EPO's approach contrasts with the outcome of the Mercer Review on UK qualifying examinations. As far as this Kat could ascertain, the outcome of the Mercer Review appeared to amount to the rather bizarre decision to abolish mark schemes, combined with the hope that there will be a contemporaneous improvement in training for all trainees (IPKat). Given that, like the EPO, the Patent Examination Board (PEB) is retaining the digital format for the UK examinations, perhaps a similarly radical shake-up of the UK examination could be contemplated?
In the meantime, IPKat readers are strongly encouraged to provide their views of the EPO/epi proposal for the EQEs.
Further reading
13 April 2021: EPO plans radical shake-up of EQEs 2024 onwards
8 October 2021: Mercer Review on UK patent attorney exams released
Reviewed by Rose Hughes
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Tuesday, July 19, 2022
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Posts
Yes, what did happen as a result of the Mercer Review? Things are awfully quiet on that front.
ReplyDelete
DeleteEarly 2019: 2018 FD4 pass mark lowered; PEB and (chief?) FD4 examiner double down and told us there was nothing to see here. PEB expressed “regret” but no actual apology or explanation as to what had gone wrong. Then again, if you don’t feel you did anything wrong, you can’t really apologise or put things right can you.
April/May 2019: due to the questionable approach outlined above, ignoring calls for “something to be done” was no longer tenable - Mercer review announced.
Mid 2019: CIPA organised FD4 lecture/tutorial - “there were no mistakes with 2018 paper”
Early 2020: Mercer review call for evidence
Late 2021: Mercer review. In addition to recommendations summarised by Dr. Hughes, there was a suggestion that creep has occurred and exams should return to testing key skills.
Early 2022: FD1 has one of the worst pass rates ever - no explanation offered - just an outlier?
Now: no indication from PEB that anything has changed, or if there are even plans for discussing changes.
In the meantime, candidates after the coveted UK patent attorney qualification will have to subject themselves to the same torturous process that has gone before. The financial and mental costs will accrue. With the UPC and the UK’s uncertain future in the IP world, can we really persist putting our next generation of attorneys through this same process? Meanwhile, the EQEs move with the times.
There is of course this.
Deletehttps://www.cipa.org.uk/wp-content/uploads/2022/07/PEB-response-to-the-2021-Candidate-Survey-FINAL-FOR-PUB.pdf
Some notable highlights.
Candidates alleged there were rude emails from PEB. PEB didn’t look into issue but nonetheless offered a non-apology apology for candidates who were upset by the tone of emails. PEB then ask for understanding given that exam period is busy for them. (I believe this falls under the remit of not being a candidate problem. They are paying you to provide a service after all).
Candidates failed because they didn’t interpret information correctly regardless of how it was presented (FD1). Candidates who said they didn’t understand SM did in fact simply not realise that they did understand SM since it was “accessible to all”, and failed due to illogical and inconsistent answers (FD4).
A vague undertaking to consider making changes in light of mercer review.
In summary, the exams are perfect, and candidates have no one to blame but themselves.
What was the point of the Mercer Review (and the Middlesex Review)? When will the next one be?
Sadly, the FD1 results for 2021 coming after the Mercer review rather broke any optimism I had for any serious changes to the UK exams.
DeleteThere was a drop of 15 percentage points over the previous 10-year minimum, and 21 percentage points over the previous 10-year average. No evidence of introspection or even concern from the Examiners. They issue a patronising report asserting that candidates weren't ready to sit the paper, and didn't know the law (apparently to a far higher degree than normal, which seems statistically odd), and tell 67% of candidates - two out of three! - 'better luck next year, enjoy memorising all the UK law again for this closed-book exam'.
@EG Yabui It’s cognitive dissonance. If you truly believe the exams are perfect, when a low pass rate happens, you can either question your belief and say we might need to take a look at this, or decide the candidates aren’t knowledgeable/prepared. Repeat ad nauseam such as 2018 FD4 - there were no mistakes, just poorly prepared candidates.
DeleteThe Mercer Review was doomed to failure the day it was commissioned. It was after all led by a staunch supporter of the current system.
DeleteThe comments in the candidate surveys have remained the same for at least a decade, if not more. Some see it as an indication that “high standards” are being maintained in the same manner as before. Others see it as an indication that the exams were always badly designed, but we were more tolerant of poor behaviour in people/ bodies in positions of power.
Left to itself, the issue will resolve itself when the number of people in the first camp becomes significantly smaller than in the second camp, as nature takes its course. But it will take at least a decade. I feel sorry for the candidates in the meantime.
Candidate comments have been the same since time immemorial, and certainly before anyone curently practising was a trainee. You can check the letters section of the CIPA journal archive or the examiner's comments issued with the mark schemes. The trick is to feel this way when you are a trainee and then, once you are senior, forget and assume it's just kids these days...
DeleteI had a look at the 94 journal. Seems the paper had a very strong chemistry focus which elicited strong views. One letter said candidates shouldn’t really specialise and be able to cover a broad range of SM. That really hasn’t aged well. Another letter from a qualified attorney said the examiner comments “the quality was poor this year” only served to antagonise the candidates.
DeleteSeems little has changed. The JEB as it then was or the PEB now will not accept any criticism of the paper and failure is only due to candidates.
The 97 examiner comments could pass as satire.
Pratt Report, Sherr Report, Middlesex Review, Mercer Report. Personally I stopped bothering to read these whitewash reports after the Sherr Report.
DeleteWhat are Pratt and Sherr reports? I have never heard of them. Would you mind sharing, please?
DeleteProfessor Pratt looked at exams in 70s and produced report. From recollection, it was more general and didn’t really critique individual exams. It had suggestions like limiting the number of times you could do exams before you were no longer allowed to try. It’s in the CIPA journal archive - try 73 maybe.
DeleteIIRC, Professor Sherr’s report resulted in JEB to PEB transition.
In my view, the Middlesex review is quite damming and whilst it points out that training could be improved, it doesn’t at all endorse the view that fd4 is being assessed in a consistent way by examiners.
As long as these reports are seen to written/undertaken that’s enough for some I guess.
If it wasn't for Pamia, is there any reason to get the UK qualification? I cannot think of any. Maybe more effort should be directed to finding an alternative to Pamia, because getting PEB to change is an exercise in futility.
ReplyDeleteIf the sole reason for having the exam is to obtain insurance, then something has gone seriously wrong.
DeleteSome might say the fitness to practise assessment that is the UK exams is a valuable filter for the insurer. Perhaps the insurer might do well not to place so much faith in an exam that bears questionable relation to real life practise, which is of course what will be covered by the insurance.
Why UK exams? Competence to give advice on infringement. Competence to practice before the UKIPO, IPEC etc. Attorney-client privilege.
ReplyDeleteReason to only take EQE's? Mistakes in exams means everyone passes. 2022 qualifiers should be hired with caution.
Financial costs? No lottery ticket pays out without winning numbers - it's not a loss, just not a win.
Mental costs? Exams are exams.
Everyone complains about exams. Pass and move on.
Everyone clearly has the same negative opinions to share, but opposing opinions are not published on this blog. Try complaining about exams on patentlyo.com!
“Competence to give advice on infringement” - given the exam has questionable links to real life infringement (e.g. construe every integer; some of the advice suggested in the examiner comments is borderline negligent), that’s quite a bold claim.
DeleteThe opposing view as you put it is in the examiner’s comments every year, and defenders that post on this blog. It’s only now that the long standing criticism is more public.
If the exams are so good, why has there been two reviews? If you have to ask the question! Why are eqes open to criticism and have a proper review by the BoA, yet the UK exams are beyond reproach? Double standards.
Candidates could pass and move on if only examiners would stop failing them in what is a questionable process.
I think it is now common general knowledge that the UK exams do not test competence. And yet there are those who keep peddling this lie.
Delete"Financial costs? No lottery ticket pays out without winning numbers - it's not a loss, just not a win."
DeleteInteresting analogy. Perhaps you'd like to take my examination. It costs £480 and can be taken once a year. It involves rolling a 6-sided die. It is necessary for you to progress in your career / get insurance as a sole practitioner.
Last year, the exam was passed if the candidate rolled a 5 or a 6. The pass rate was disappointingly only 33%, with the average score being 3.4525. However, there were a good number of candidates who achieved high marks - with many even rolling a 6 - showing a clear difference between those who were ready to roll a die, and those who weren't.
Many seemed ill prepared, not only in rolling technique, but also in persistent inability for the roll to achieve a high score. Careless mistakes, particularly with rolling very low numbers, such as 1 or 2, were prevalent.
I am forced to urge firms to consider whether the candidates they are supporting have
reached the right stage of their professional training to roll the die.
(The point of the above is not that the PEB exams are entirely luck-based, but rather that equivalent justifications could be given for entirely luck-based events.)
"It has been said by some, and not merely by disappointed candidates, that our examinations are too severe......., but it is pain to me that no hope should be held out that our examinations will ever be anything but difficult to pass." A.A .Thornton 1934
DeleteFeel free, as a non-UK regulated professional, to never be able to give advice and never understand the issues surrounding the giving of advice on infringement.
Anon @ 25/7 10:18
DeleteAppeal to an alleged authority from 1934 - the justifications just keep getting better and better.
Also nice false dichotomy - an understanding of infringement and passing FD4 are not mutually exclusive. Judges, barristers, and solicitors haven’t passed FD4!
It has been simultaneously cited that the EQEs don’t test competence (“everyone passes”) and the UK exams test competence. Where is the evidence for these claims? I’ll settle for evidence just for the latter claim (whether another exam is better or worse is irrelevant).
DeleteIt would be so easy for you to shut everyone up if you could back up the claim that competence is being tested. The Middlesex review noted little evidence to support this claim. So where is it and why has it not been provided?
Interesting how so many other legal professionals in the world can competently deal with infringement without this additional test of competence.
I must agree with Anonymous @1018.
DeleteIn my examination, although the low pass rate must be disappointing to candidates, it is of course indicative of the integrity of the profession that it remains difficult to pass. Clients can relax in the knowledge that all UK-regulated professionals have, at some point in the past, rolled a 5 or a 6 on a die under examination conditions. Those who have persisted in trying their rolls without adequate preparation or who have decided that my exam is not worth it can feel free to practice as best they can without being able to understand the issues surrounding the successful rolling of a die once a year.
Again, the point of the above is that equivalent justifications could be given for the implementation of entirely luck-based qualification barriers. Low pass rates, historical difficulty and appeals to past authority do not prove that the examinations are reasonably able to differentiate fit-to-practice candidates.
The people that make the PEB exams happen should be thanked for their contribution. If they packed their unpaid bags today there would be nothing for the unqualified to complain so bitterly about.
ReplyDeleteIf PAMIA are the only insurer, people should ask themselves why. Surely, there is good business in insuring wet-behind-the-ears patent attorneys, self-designated, not examined, on the register because they went to the right school and did a jolly internship with a family friend, big in patents?
Try Carpmaels (https://www.bailii.org/ew/cases/EWHC/Ch/2021/2899.pdf) and consider the behind-the-scenes consternation and the effects had the lost patent been of real value (e.g. pharmaceutical patents). Effects on the business that lost the patent and the individuals held personally responsible. PAMIA's limits barely cover the lawyers' fees.
£480? A charge made to a client for a couple of hours of insubstantial work.
I am not sure why you think that just because the people in charge of PEB are unpaid, they must not be criticised if they do not do a good job. If a job is worth doing, it is worth doing well.
DeleteExaminers are paid for marking papers so that is an outright lie. If you aren’t going to debate in good faith, lies are going to be called out for what they are, lies.
DeleteAgain false dichotomy, there is a whole lot between FD4 based competence and an old boys based competence. Nice try though.
Another lie - what did the case you cite have to do with FD4 or infringement? It was about a missed EPO appeal deadline.
Candidates have to pay the £480 fee themselves which ties nicely into your first lie. Candidates enriching examiners through exams and professional training courses doesn’t sit well with many. Never mind the conflict of interests in offering training courses for the exam you are marking. It’s like a referee coaching a team before the final.
Unqualified? To the extent that’s relevant, if at all, you are clearly wrong in assuming only unqualified people have a problem with this exam.
DeleteTo Anon @ 10:18,
ReplyDeleteFor the 9,284,3857th time, the issue is not that the exams are difficult. It is that they are (independently judged to be) inadequate in assessing competence.
A Chartered Patent Attorney giving infringement advice solely on the basis of having passed the infringement paper is playing with fire. There is a reason clients go to specialist solicitors when stakes are high in infringement cases. Solicitors who, by the bye, have never attempted the paper.
They know this isn’t the issue and refuse to address this point. It’s much easier to argue against a point that was never made. Yet they tell everyone else they are not fit to practise, even those that have passed FD4 and level the same criticisms.
DeleteThis is fun, but the Carpmaels case is not about a missed EPO appeal deadline. This is were reading a case is educational. The missed deadline and its consequences on the existence of any patent are ancient history. The issue was one of damages because negligence was admitted.
ReplyDeleteAnyone who believes they should be let loose providing advice to a business where poor judgment may literally cost billions, more than any insurer could cover, without appropriate qualifications and experience as determined by those who have such appropriate qualifications and experience, is both deluded and unemployable. And uninsurable - try calling Direct Line.
A lie is an untruth, not a stated fact a person may disagree with. Examiners are paid for marking papers, but where do you think those papers come from? Past papers?
Fitness to practice comes from a combination of both education and experience, which is why you have to wait a year or two before charging £1000 per hour. And the EQE's require 3 years practice prior to examination, or at least they did in the good old days when the pass rate was 50%, not 30% and exam fees could be reclaimed on expenses, but I doubt that has changed.
Ah so examiners are paid then. Glad we cleared that up. PEB is not a voluntary organisation. Test candidates are paid to sit the exam. Are those that set the exam paid? Even if they are, still not the quite the same as saying those that “make exams happen” are unpaid which is an untrue “fact”.
DeleteI have read the case. Your point seems to be that insurance is needed for when things go wrong. Again no one is arguing this point except you with yourself. Bit tenuous to link it it FD4. I doubt any company would rely solely on infringement opinion form a UK patent attorney whose only experience is an FD4 pass for a block buster drug. That would be negligent under insurance without first consulting with actual experts in this area like solicitors and judges.
No one is arguing to “let loose providing advice to a business where poor judgment may literally cost billions, more than any insurer could cover, without appropriate qualifications”. You are arguing with yourself on this point over your own false dichotomy.
As mentioned above, to shut everyone up, you need to prove that this exam tests competence.
You are mistaken that I need to do anything to shut anyone up. You are failing the exams and looking to blame others. Holding a gripe is one thing, fighting to bring down the system another. You do not understand insurance or the comments made - try reading the points before writing your answer. It is not negligent for an experienced, qualified, patent attorney expert in pharmaceuticals to provide infringement advice. Your doubts are far from reality as pharmaceutical companies employ in-house patent attorneys who make big decisions and give legal advice on billion-dollar projects on a daily basis Consulting judges is not something I recommend - you have a lot to learn.
DeleteProof that the exams test competence is provided by your own comments.
Except that I qualified many many years go. Passed everything first time and have worked on worldwide IP litigation. Resorting to insults doesn’t really help anyone. So I am not sure how I can be accused of blaming others for having failed.
DeleteI don’t want to bring down the system, just improve the current format. But it seems that is being characterised by you as wanting no qualifications.
The judges was a typo. I meant barristers.
The in-house point still isn’t convincing. Does every in house person give advice as soon as they have passed FD4 - I think not. Your comment refers to experienced attorneys which suggest more than FD4 is at play.
Serious question - given I don’t want to bring down the system, can you see no way in which the process can be improved? If not, what was the point of the reviews?
This was fun, but circular, so I am getting dizzy. I shall leave with one piece of advice for P6 and EQE C (whatever they are called today): Don't write essays; you are not at school (or Oxbridge) and there isn't enough time (subject to no longer having to translate prior art for the EQE's!). Many fail because they run out of time. Note form is sufficient.
ReplyDeleteIt is heartening to know there are so many willing souls to take over the exams in the future.
And why do they run out of time…. This is indeed circular.
DeleteDodging the criticism as usual by saying candidates should take over.
Is anybody prepared to admit that the exams have a low pass rate because being a patent attorney is difficult and many people who have been having a go at it for 2-4 years are just no good at it yet? I sat all four exams after 2 years in the profession. I did my rote learning, studied every past paper, and devised a strategy. I executed the strategy for 3 exams and passed them. I botched one exam, partially due to stress and fatigue, but entirely down to bad judgment, and failed it. Even now I am amazed at how little I really knew and how easy it was to pass.
ReplyDeleteFD4 is not a bad exam. Sure, it's hard. So it should be: writing an I+V opinion is hard. Also sure, it's not like writing a real life I+V opinion. You have to show your detailed working to convince the examiner that you know what you are doing. This means construing every integer, doing a correspondence table, or whatever, and being a bit pedantic about everything. But PEB are very clear on how FD4 works. It's not a mystery.
FD1 is also not a bad exam. People just sit it too soon into their career and the training for it is not very good.
If the scenarios are sometimes confusing or the subject matter a little unfamiliar - so what? That's the patent attorney's job. Every patent concerns (or should concern...) previously unknown technology, and the public seldom seeks advice from expensive professionals for straight-forward situations.
As for the new EQE, this is not a positive development. It is a technological solution in search of a problem. I would invite anybody who thinks that the EPO is seeking to improve things for candidates to actually try the new exam format in WISEFLOW. It is a nightmare for candidates and will only serve to reduce the marking burden on the EQE and facilitate a transition to automated marking. The new EQE will allow candidates to qualify without drafting a patent application or responding to an examination report. The new exams will be an exercise in expert-form filling and mining a confusing web-page for relevant information. I guess that is more in line with the job of a patent attorney...
Of course some candidates fail because they need more time to learn the underlying skills. I don’t think anyone is expecting those that are unskilled should have an exam that even they can pass.
DeleteWhen you look at the distribution of marks, to say the maximum mark is 100 is true on paper, but not in reality. Most passes sit in the 50-60 range. Candidates who get 40-49 are obviously not unskilled and indeed their real life work shows the exact opposite. For them it is frustrating to be have one piece of evidence (FD4) outweighing every other piece of evidence saying otherwise. I know competent I&V attorneys who have failed this exam many times and ones that have never done I&V work and have passed after 3 years in job. That is difficult to justify. See for example Ron’s post in the mercer review kat post.
I am in favour of keeping the exam only if some of the long standing criticisms (inaccessible SM - telling candidates they have to expect this isn’t really tenable much longer - gantry gate must have taught us something - an increase in paper length has long absorbed the extra hour granted in 2010 - illogical examiner comments where they change construction for IS and have borderline negligible advice) are addressed. We can’t as a profession have two reviews and keep doing the same thing over and over again. A refusal to compromise rarely works out. Neither Middlesex nor Mercer endorsed the current format, no matter how favourably some might try to spin that.
A wider point raised by your post is what is going wrong with our recruitment given we have a large number of “unskilled” attorneys in every cohort.
Your post is illogical. On the one hand you are saying that you could pass the exam knowing very little (indeed you took the exams after only 2 years in the profession which is by any standard too soon). I note that you do not say which exam you failed, but you do not blame a lack of experience for the failure. On the other, you say that candidates sit the FD1 too soon. How do you square these too points?
DeleteOr are you suggesting that your training in the two years was exceptional to the point that it made you competent despite, by your own admission, knowing very little?
Or do you think you are spectacular clever so that you are able to advise competently despite knowing very little?
Or might it be the case that you were, heavens forbid, exceptionally lucky?
An interesting job listing. Essential requirements seem limited.
ReplyDeletehttps://www.cipa.org.uk/jobs/chief-examiner/
Even more interestingly, “Understanding of current IP education and training” is only desirable and certainly not essential.
DeleteNow it all makes sense ;-)
It is often amusing to read the comments from those who attempt to defend the exams. Most of the arguments are poorly made if not completely lacking in logic and common sense. These are presumably being made by qualified patent attorneys. And they talk about maintaining “high standards” in the profession.
ReplyDeleteCompetitor to Pamia: https://www.iprisk.management/
ReplyDeleteDo these guys need national qualifications?
Ultimately, the choice for trainees is a simple one. Pass the exams or change career. Individuals are able to act as "IP experts", "IP gurus", etc, without qualification if that suits.
ReplyDeletewww.iprisk.management/ would cover EPO work only.
Again almost no one is arguing that there should not be exams that need passed. I have certainly not seen that argument widely made.
DeleteIsn’t the choice we either keep the exams exactly as they are, and ignore the last two reviews, or we look at how they can be improved, as suggested by the last two reviews? And to preempt the inevitable response, improved does not mean easier. I could stomach the current pass rates if I had confidence that competence was being assessed. I currently do not have this confidence.
So basically what you’re saying is that trainees should just shut up and put up. If you want to call yourself a patent attorney, the first lesson you must learn is deference and an unquestioning loyalty to the system.
DeleteDo you also teach the newly qualified a secret handshake?
If everyone spent less time posting anonymously on catty blog posts and more time studying or, heaven forbid, volunteering as trainers or examiners, perhaps the kinks in the system would work themselves out
ReplyDeleteWell, at least you acknowledge there are kinks in the system.
DeleteDo you think these can be overcome by spending more time studying?
Can we not just abolish PEB, IPReg and CIPA's "Charter" and establish a system in which any person can offer IP advice to anybody else in exchange for an agreed price, and let the consumer decide where they want to go for advice. It's called a market economy and it works.
ReplyDeleteAs noted above, there are no restrictions, but why waste time reading?
Delete"Only 1 in 20 applications filed without the help of an IP professional successfully reach grant. If you have not already done so, we strongly recommend you seek the advice of an attorney before applying for a patent." UKIPO
"Attorney" is someone entered on the register having passed the exams as required to demonstrate competence. Their advice, including in respect of infringement and validity is subject to the benefit of attorney client privilege - the benefit being that of the client.
Mx Angry above may be successful 5% of the time, mirroring zir exam results. It's a certificate of entry on the patent attorney register, not a secret handshake.
Volunteer? No. I'll accept equitable remuneration, but the price of exams will be several £1000, so be careful what you wish for.
And when you've all successfully passed your exams.....
ReplyDeletehttps://ipdraughts.wordpress.com/2022/07/29/convince-me-that-youre-competent/
Look before you leap.
See the low quality of the last years papers I suppose that nextyear with the new exam the old Paper ABCD would be of the flimest quality.
ReplyDelete