Earlier this year, the Institute of Professional Representatives before the European Patent Office (epi) proposed a radical raising of the admission requirements for the European patent attorney qualifying examinations (EQEs). Epi proposed that, to maintain the quality of European patents, there should be no admission to the EQE without at least a 4 year scientific degree.
The epi proposal specifically called for restriction of the EQE to candidates with "a technical/scientific master or diploma (better PhD) degree of at least 4 better 5 years full time university". The first and most obvious problem with this proposal, so far as this Kat can see, is that a longer degree does not mean a better degree.
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| Excluded from the profession |
The technical and scientific knowledge required to be a competent patent attorney will, of course, vary between technical fields. Mechanical inventions are generally considered understandable by all, and so form the basis of the qualifying examinations. Far more specialist knowledge is required to understand inventions in, for example, the software and biotech fields. In fields heavily reliant on experimental data it is also valuable to have at least some lab experience.
However, a longer university degree is not the only, or even necessarily the best, way of obtaining specialist knowledge in a technical field. The most useful specialist knowledge within a technical area will in fact often be obtained during patent training itself. Far more important is a scientific mindsight. Furthermore, as argued by the D&I working group: "whether their attorney does or does not understand the technical aspects of an invention is something the client can actually judge for themselves. Clients don’t tend to be concerned about how many degrees or other qualifications their patent attorney has; the client will judge whether the attorney can listen and communicate ideas clearly, and whether they can match their advice and drafting to the client’s commercial goals".
In the face of such obvious and well-argued opposition, it would seem crazy for the EPO to follow the epi proposal. However, the epi proposal was purportedly made in response, at least in part, to the EPO's own decision to make a Master's level education compulsory for EPO Examiners. The epi proposal is also clearly made in the context of the EPO's focus on patent quality, given that the epi article itself is entitled "All about Patent Quality". Notably, "all about Patent Quality" also appears to be behind the EPO's controversial and intransigent stance on adaptation of the description, judging from Steve Rowan's presentation at CIPA congress this year. Those opposed to the epi proposal may have very good reason to worry.
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Reviewed by Rose Hughes
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Tuesday, November 07, 2023
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Posts
“CIPA Council has seen no evidence to suggest that a longer technical education provides for better EPAs.”
ReplyDeleteEvidence based policy: what’s not to like?
When will CIPA/PEB provide its evidence that the UK professional exams provides for better CPAs?
Provides for better CPAs in comparison to what? The word “better” is a meaningless relative term here. If nothing else, the exams should hopefully avoid claim drafting with such unclearly defined relative terms
DeleteUK produces better patent attorneys when compared to any other country in Europe (at least in terms of EP exam results). I would suggest this is due to the relative difficulty of the CPA exams in comparison to Europeans.
DeleteAre you really suggesting that EQE pass rates are a suitable metric for assessing who has the ‘best’ patent attorneys in Europe?
DeleteAs correctly stated in the article, the EQE tries to make the technical part as easy as possible in order to really only test legal knowledge. Effectively, it tests how good you are at learning a particular exam strategy.
DeleteIn Germany we had for many years the "Medizinertest", i.e., the entry test for who is allowed to study medicine at a German university. They had camps for training 3D comprehension (mainly spatial rotations of 90 degree along some axes) for specific tasks as well as training how to read questions and answers in multiple choice questions. The concept was (to my best knowledge) very similar to the Pre-EQE. Nobody would have stated that passing the "Medizinertest" turns you into a good doctor.
I've heard a lot of talk over the years about "tips and tricks" for the EQE. I've trained a lot of graduates who have become successful patent attorneys. Those that understand the job and develop the skills to do it well pass the exams in my experience.
DeleteThe EPO requires a master's degree (or equivalent) when hiring new examiners. Would be unreasonable to require the same for "the other side", wouldn't it?
ReplyDeleteSeems logical on the face of it, but the jobs are different. The attorney has access to the inventor as a source of technical information, so the examiner's own technical knowledge is more significant. The examiner can examine all applications from all applicants in a narrow technical field, whereas the attorney would have a conflict of interest acting for all these applicants. An examiner can excel with technical knowledge that is deep and narrow, but the attorney needs the ability to operate across a broader range of (their) technology.
Delete>"The EPO requires a master's degree (or equivalent) when hiring new examiners. Would be unreasonable to require the same for "the other side", wouldn't it?"
DeleteIt rather depends on whether you think the increase in the requirements for EPO examiners was reasonable, personally I can't see it was. Additionally, following this logic through to its end, doesn't that mean that EPO examiners should also pass the EQEs before they are allowed to work as examiners?
>"The EPO requires a master's degree (or equivalent) when hiring new examiners. Would be unreasonable to require the same for "the other side", wouldn't it?"
DeleteNo.
Firstly, for the EPO, it appears to make no difference. I have talked to examiners more than once who have not understood if the slightest bit of the invention while drafting the preliminary opinion on patentability. Only after a 30 minute lecture, they may reach that level. This applies for example to power electronics.
This, by the way, also applies to the legal acumen of a lot of examiners.
Second, the academic degree one has does not directly contribute to being fit for practice - or not. This applies to the EQE as well - we have let go of people who passed the EQE properly, but were not fit for practice w.r.t. quality of work.
The profession is a commercial one, the best will come out as the best anyway; clients will quickly leave attorneys who do not understand the technology as that is a point evident to test.
Finally: EPI, do what you are supposed to do: listen to the people you represent and take your actions accordingly.
"whether their attorney does or does not understand the technical aspects of an invention is something the client can actually judge for themselves."
ReplyDeleteThe same applies when, e.g., buying a second-hand car while not having any understanding of the construction, maintenance and operation of cars yourself.
...except that when buying patent applications it is the client who has all the expertise in the technology and the attorney who must demonstrate that they can understand that technology from the information the client provides and the questions they ask.
DeleteThe whole discussion is complicated by the enormous diversity in (university) education not only between the European countries, but as a matter of fact over the whole world. The current requirements to enter the profession (and eventually sit the EQE) is at least three years full-time education at university level of which at least 80% is on technical subjects. In some of the European countries the required scientific knowledge is more (i.e. a master's degree), while in other countries there is no requirement at all, see the Table on epi's website: https://patentepi.org/en/education-and-training/table-of-patent-profession.html. So, there is a complete patchwork of requirements for national patent attorneys, of which many have had the opportunity to become a European patent attorney by the grandfather provision. The aim of the current requirement for sitting the EQE was to harmonise the European practice, and epi's recent proposal should be seen as an attempt to improve this harmonisation, since in many countries the entry level is at least a master's degree. You may think that such a provision would be against the diversity and inclusion approach, but I tend to doubt that; or, at least, the current requirement should also be seen as counter to this. Any level that is set may meet objections and the only way to deal with this is to ensure that people that would not comply with the requirements (whether it is a master's degree, a 3-year's level or something else) can still apply to sit the EQE if they show they have a sufficient technical knowledge.
ReplyDeleteOn the other hand, you may also find the whole discussion to be utterly nonsense: once you are qualified as a patent attorney, you may be active on any technical filed, even if that would not be a field in which you are educated. Further also people without any technical education may be representatives under Art. 134(8) EPC.
Well put. For attorneys in countries like Germany, France, the Netherland and Sweden, the proposal probably seems uncontroversial because they need a Master's degree for national qualification anyway. For those in other countries like the UK, Switzerland, Italy, Belgium and Spain, this would represent a significant change that needs some justification. This probably explains why so many UK voices have come out against this proposal, given the large number of UK EPAs.
DeleteIt's true that the current requirement already excludes those that may have excellent relevant technical knowledge, because they don't have a degree. Making that situation worse by excluding even more potentially capable EPAs doesn't seem like the right direction for a harmonisation initiative to me.
In my experience, those with PhDs are generally weaker as patent attorneys, in that they are less sociable, less outgoing and less likely to form meaningful relationships with clients. In fewer words, they are nerds. I'd rather have those with a Bachelor's and a bit of life experience any day. No one is going to be impressed with your oddly niche PhD when you can't converse with people.
ReplyDeleteAnecdotal evidence based policy is not the way forward in any debate.
DeleteNo one is talking about a PhD requirement in this post. The discussed requirement is a Master's degree as it is already necessary in many countries to be able to be a national patent attorney. Please stay on topic.
Delete>"No one is talking about a PhD requirement in this post."
Delete...yet.
The only thing I take away from your comment is that you obviously don't have a PhD. You may want to have a look at, e.g., the Biotech departments of the top firms in the field. Somehow they seem keen to hire "weaker" attorneys, as the majority does indeed have a PhD.
DeleteThe arguments provided in the epi proposal are so poor and riddled with fallacies that I am (perhaps ironically) concerned with the competence of whoever prepared it.
ReplyDeleteFor example, the section 'Is patent quality linked to the qualification of patent attorneys' provides entirely superficial comments, amounting to 'What are the skills of a competent patent attorney' and 'why would the absence of these be bad?'. There's no attempt to link it to the thesis, and even the skills identified are so basic that I wouldn't be surprised if it was spat out by Chat GPT. Perhaps that would even be preferable, as the alternative is that epi genuinely thinks these are effective arguments.
https://information.patentepi.org/issue-3-2023/all-about-patent-quality.html
The lack of evidence behind this decision is troubling, especially when considering the cost of a Master's (especially one that isn't "built-in" to an undergrad degree). There's not much to separate me from my colleagues who only did three years at university, except the fact that I will never be able to pay off my student loans, which are almost £80k and still climbing.
ReplyDeleteThis raises a wider point that rarely gets acknowledged. One of the biggest barriers to the profession is social class.
DeleteTrue story - One IP firm hired a trainee attorney, and payroll did not know how to set up student loan repayments since they were the first trainee to have one amongst their peers who were also educated in the student loan era. Another IP firm had a trainee ring up in their first week in an open office area to pay off his invested student loan.
I support diversity in the profession, but if we just going to become an (upper) middle class profession, but otherwise inclusive in terms of gender, race, etc., that is not diversity in any sense of the word.
Insisting on a masters in the UK at least will only further exacerbate the profession’s class problem. That’s not to say should this proposal fail, there isn’t a serious issue to be looked at.
I agree - though, my perception is not that the profession is making any progress in terms of other forms of inclusion. There's certainly some lip service, but I don't see what any of it achieves.
DeleteI agree with the formulation of "some lip service".
DeleteUnfortunately, from the LinkedIn discussion last month on the same topic, I got the impression that there is too little constructive thinking. E.g., if considering "alternative ways of proofing technical knowledge" - what would be a workable proposal? The EQE admission works on a paper proof basis, thus, what may be considered as a suitable paper proof?
Also, it should be more clear on what group of people is being talked about instead of making generic "bla bla bla" statements about being confident that a large part of the EPC member states is affected and then going on to state that nobody can force them to provide evidence for their claims.
Another example: instead of writing that by changing the rules, some people may feel retroactively offended, write that is of the utmost importance to uphold qualifications acquired under the at the qualification time relevant rules, and that changed rules shall only apply to the future from a to-be-determined and to-be-published date onwards.
The requirement of at least 80% scientific and/or technical subjects over a minimum three-year course has always puzzled me. Any additional courses taken outside the mandatory curriculum of for example 180 ECTS, for example on legal subjects, decreases this percentage. However, these additional courses will not decrease the actual number of ECTS obtained on scientific and/or technical subjects.
ReplyDeleteHang on a minute. Is it really the Institute that is making this proposal? Or is it one T. Marx, an employee of a medical devices company called Löwenstein? All that I'm seeing is a piece by Marx published in the EPI Journal, which ends with an unsupported and unreasoned nonsensical assertion that quality patent attorney work can only be expected from somebody who can declare their attendance for at least four years at some university or other. Where do I see this assertion being championed by the EPI itself.
ReplyDeleteBut apart from that, the Marx piece at root seems to be a polemic, that patent attorneys should only handle cases for which they have an adequate technical background knowledge. Who would argue with that?
It has always amused me to read in the c.v. of many a US patent attorney in private practice that "Billy Boggins has many years of specialist knowledge and drafting experience in, inter alia, diagnostics, large molecule drug formulation, telecommunications and trans-luminal stent deivery systems." Fancies himself to draft in all three fields, does he? Does he have a 4 year degree in all three relevant fields, or in less than all three? Does Löwenstein have bad experience getting "quality" patents in the USA? Quite probably. Does it have difficulty finding a competent European patent attorney? I doubt it and if so, it has only itself to blame.
Relevant technical learning and experience is necessary but not sufficient. You are not going to succeed as a patent attorney if you are lacking i) an unquenchable deep curiosity in your chosen field of science/technology AND ii) a driving urge to communicate clearly and effectively to others not yet in the know, how elegant is the technical feature combination of the invention and how exciting are the technical effects they deliver. Not every holder of a 4 year science degree has those abilities and character traits. Many with a 3 year degree have them in abundance. T. Marx, when might we expect a reply to the chorus of criticism of your disappointing EPI article?
It’s interesting to reflect that, according to his LinkedIn profile, Dr. Marx has an impressive academic background in the field of biology and has subsequently practiced almost exclusively in the medical device field
DeleteWhere do complimentary Master's degrees, awarded merely for time elapsed, sit in all this? https://www.bbc.co.uk/news/uk-england-15409386
ReplyDeleteIt would be a mockery if these were acceptable, but a BSc from another University not awarding such degrees fail to be sufficient.
The requirement seems to be for a four-year course rather than just a Master's, so I would not imagine that a complimentary Master's based on a 3-year course would be considered sufficient.
DeleteThe focus of the proposal seems to be on the length of study, i.e. four years which typically results in a Master's degree.
DeleteMakes me wonder what the view would be of a Scottish degree that is four years for a BSc and five for an MSc. My understanding is that the extra year compared to an English university is an initial year which is not required for students who have been through the English school system. It's another example of the difficulty of comparing degrees from different countries based on simple metrics such as the number of years of study or the classification of the qualification by the university.
Fortunately, the Oxbridge "Master for free" can be easily excluded by requiring to transmit a transcript of records including the courses taken the corresponding counting of ECTS points.
ReplyDeleteTo me the most obvious solution to better qualified EP attorneys seems to be mandatory university studies in European Patent Law. A one or two year remote learning program could guarantee a high education level. Exam participants would be better prepared and the pass rate would rise. National attorney qualification programs might benefit from that, too.
ReplyDeleteThat sounds a lot like the Hagen course for Patentanwalt training in Germany.
Deletehttps://www.fernuni-hagen.de/kurthaertel/studiengaenge/patent/index.shtml
This kind of structured training for EPAs might be a good thing in general, but it doesn't seem that it would raise the pass rate in the EQE. In 2023, 41% of German candidates passed the EQE, whereas other countries had significantly more successful candidates (UK 68%, NL 67%, IE 62%). To be fair, the Hagen course is focussed on related areas of law, rather than patent law per se.
The pass rate in the German national patent attorney examination is about 95% and that might be evidence for the success of courses such as the Hagen course. If we're really interested in raising the quality of EPAs maybe we should be looking at how successful exam candidates are trained right across the EPC countries and aim to share that best practice, rather than introducing arbitrary academic requirements.
Concerning the German exams vs. the EQE and pass rates of other countries, there are several country-specific effects:
Delete(1) E.g., in the UK if you pass papers A and/or B, you can skip the respective national papers, i.e., it works in the style "buy 2, get 1 for free". By contrast, the German exams are totally different in style from the EQE. Firstly, you have exams related to trademarks, designs, utility models, the rights of employed inventors towards their employer (and vice versa) and issues related to civil law. And also the parts related to patents are completely different, more in the style of an "opinion" (giving as many angles as possible, think of the way the advocate general works at the EU court of justice) than defending/attacking the patent application.
(2) The marking scheme of the EQE is totally different from German exams. In German exams, if you notice an overlooked problem with how the problem is posed, you will usually be awarded extra points. In the EQE, you get between zero and negative points for such a thing. You have to completely retrain on how to perform an exam if you switch from one to the other.
(3) Completely different in Germany is also "who tries the EQE or German exams when". If you are in the UK, you can train both nationally and for the EQE in English. In Germany, there are many non-native speakers who will attempt the EQE without the national structured training. And a second group is (also German) people who do not want (or their employer does not want them) to do the mandatory unpaid eight months internship at the national patent and trademark office (DPMA) and federal patent court (BPatG). Especially these groups would greatly benefit from a structured EQE training, whereas the burden for those also doing the national training would be excessive, at least for doing both simultaneously.
(4) There are some cultural differences between legal system, e.g., of the UK and Germany in general. In Germany, by definition "case law" is no law at all as nearly every aspect of legal life is codified, whereas the UK does not work with codified law, but considers "case law" as the standard. The latter again is helpful for naturally understanding how to write paper D1.
>"To me the most obvious solution to better qualified EP attorneys seems to be mandatory university studies in European Patent Law."
DeleteSpeaking as someone who did one of the masters courses in IP law presently on offer in Europe, I am sceptical that it would do much to improve the profession. Certainly employers did not seem to credit it in selecting candidates for interviews - indeed one very senior partner said they did not credit the course at all - though I did eventually find a slot.
As to "Quality" (and how it is enhanced by strict conformity between the description and the claims) Rose mentions Steve Rowan's presentation this year to CIPA Congress. Can anybody give me a Link to the text of that address, or some other revelation of its content. Many thanks in advance.
ReplyDeleteJust a few thoughts:
ReplyDelete1. I see no evidence that the requirement for a four year degree is a serious proposal from EPI.
2. I see no evidence that patent quality is put at risk because there is no requirement for a four year degree. Plenty of Doctors of Philosophy who are crap patent attorneys. Plenty of Bachelors of Science are good patent attorneys.
3. I see no evidence that requiring a four year degree would have a material impact on entrants into the profession. Of the large EPC states, the UK is an outlier in offering three year degrees. Nevertheless, almost all current entrants into the UK patent profession already have at least four years of technical university education. Many, if not the majority, already have PhDs, integrated undergraduate Masters degrees or standalone postgraduate Masters degrees. Very few only have a three year Bachelor's degree.
4. This is a storm in a tea cup; the latest example of navel-gazing patent attorneys obsessed by trivia. See previous tea cup-sized storms on: adaptation of the description, oral proceedings by videoconference, application of ST.26 to divisional applications. All are banal issues which, while potentially frustrating and unwarranted, matter little to our clients and have been blown out of all proportion by people with too much time on their hands.
According to the CIPA letter 3.7 million of the 5 million STEM students across the EPC countries are studying for Bachelor’s degrees and 1 in 5 trainee patent attorneys in the UK has a Bachelor’s degree. Seem like significant numbers to me.
Delete>"Very few only have a three year Bachelor's degree."
DeleteIs 20% "very few"? I would certainly mind a 20% pay-cut, wouldn't you?
Of course there are firms that have basically made PhDs/MScs a requirement for hiring and it could definitely seem like there are very few people with only BScs if you work for such a firm.
CIPA's analysis of new student members over the last five years (part of our efforts to understand recruitment trends and increase diversity) shows that for the 20 largest recruiters (who hire between 3 and 10 new trainees a year on average), the distribution of highest qualification is roughly 20% Bachelor's, 60% Master's and 20% Doctorate. NONE of these firms hired exclusively candidates with Master's or Doctorates.
DeleteFurther investigation suggests that the pool of candidates applying for trainee patent attorney roles has a significantly reduced proportion of Bachelor's graduates compared to the overall cohort of STEM graduates. It seems that Bachelor's graduates are less likely to apply to become a patent attorney, perhaps because of a perception that a higher degree is required. For firms looking to broaden their recruitment pool, particularly in the electronics and computing field, it would probably help to emphasise in their recruitment information that a Bachelor's degree is (currently!) all that is required.
With regards to whether this is actually a serious proposal from epi, according to the letter from CIPA: "In May this year, CIPA Council received a report that the Council of the epi had passed a motion in favour of raising the threshold technical qualification for entry to the European Qualifying Examination and, therefore, registration as a European Patent Attorney, to a Master’s level degree or equivalent. Council was further advised that this will require an amendment to the Regulation on the European qualifying examination for professional representatives (REE) and that the EPO would be considering this in due course."
ReplyDeletePerhaps someone from CIPA can provide more details?
That’s pretty much all the information that we have. My understanding is that the article from the D&I Working Group was responding to the proposal within epi. The article by Dr. Marx is, I believe, his own proposal that happened to be published in the same issue of epi Information.
DeleteI have just checked the report of the Council Meeting published in the epi journal of May 2023, and they decided not to include it. The language of the CIPA letter suggests that the decision has already been made by the epi "on our behalf", and that the only barrier left is the acceptance of the Administrative Council when it is included in the updated REE. It would be nice to have some clarity on whether we are too late, reasoning on why the decision was taken to reduce the size of the future candidate pool, and assurances that it will not be applied retroactively to anyone already qualified (for example, the restrict the right to represent before the UPC). This would affect me directly as an EPA/EU Litigator with a Bachelors degree.
DeleteCompletely independently from any decisions on future modifications or not, it would be very unfair to retroactively disqualify any person who got their qualification under rules that existed at that particular time (both as EPA and as EP Litigator).
DeletePete, we are not too late. The information that CIPA has is that no formal decision was taken at the epi Council Meeting and that the proposal on raising the degree level is NOT included in the proposed updated REE that will go to the Administrative Council. There may, however, be a "second basket" of updates to the REE in the future. It's definitely worth continuing to voice support for the position of the D&I Working Group, to express concern and to seek justification for any change.
DeleteDon't be so sure that they will not apply it retroactively. If the argument is directly-related to quality problems, then it is easy to come up with reasons why those less technically qualified should disqualified from certain tasks, such as UPC or EPO oppositions / appeals. Just speculating, but this create an "EU patent agent" level of representation.
DeleteI think this is unlikely, but there is definitely an anti-competition vibe regarding the UPC representation "golden eggs". For example, the request to have the EQE results in 2024 early enough to benefit successful candidates in 2024 from the 1-yr UPC grace period has been refused without any further explanation (the results will be in July 24 as usual).
What is going on at the epi? There are discussions in secret about the future with no formal opportunities for members and the rest of the profession to comment or influence. They are also drawing up a new REE for the EQE behind closed doors with punitive transitional provisions for partially-qualified candidates. In both cases, they are tipping the balance in favor of certain countries, and raising the bar for future candidates.
ReplyDeleteWhy are they pulling up the drawbridge? Are they already anticipating the rapid decline of the European Patent Attorney due to AI?
"Why are they pulling up the drawbridge? Are they already anticipating the rapid decline of the European Patent Attorney due to AI?
DeleteYes.
There's a very good chance that we will see a major shift in knowledge work of this type in the next 10 years due to the rise of AI assistance. Certainly things will look quite different in 20 or 25 years. Many long-since qualified patent attorneys working today will still be around then, myself included. This kind of change is an attempt to limit the number of youngsters entering the profession and taking up a shrinking pool of valuable work.
Another way in which older generations are screwing things up for the young.
Does this mean more and higher pay. Seems like they want more qualifications so only right to increase pay and benefits.
ReplyDeleteI don't think so. If the demand from client is also reducing, the pay and benefits will stay the same. Or even drop. Within 1-2 years, many clients will be writing and filing the applications themselves.
DeletePay and benefits should increase if further qualifications are required. With respect to AI, I don't think this will change the patent attorney's role much. Drafting is still a key skill that needs a human. No amount of AI can write a commercially valuable set of claims for a client. It needs discussions with client which cannot replicated with AI. Same for prosecution, opposition and FTO work. The only thing AI is likely to affect is the routine tasks which are mostly formalities tasks such as processing posts, deadlines etc...
DeleteIt is a storm in the water glass, after all it is just a degree to pass an exam , which requires just thinking black and white to pass, where you can represent clients in the EPO, ie prosecution ( opposition and appeal belong also to prosecution since it is a reexamination with the support of the public of an administrative act) This has nothing to do with court actions either in a National court or in the EPC and I doubt whether you might need a 4 y master degree or PhD . A PhD is just something you should do only out of innate curiosity). Having attended German , Swiss and English universities , I feel the entire discussion is more a UK specific problem where costs for education are prohibitive and socially exclusive. But a solution to this is not in the realm of the epi, nor EPO but of the UK government
ReplyDeleteAnd now my dear and respected colleagues, let’s enjoy our profession whether you have a BSC, MSC, PhD, we are all equal in the EPO
You're probably right that the social exclusion originates with the cost of higher education and that cost is particularly high in the UK (although it is also high in some other European countries). You're also probably right that a four-year Master's or a PhD isn't necessary to be a good patent attorney. So, no need for an arbitrary bar that doesn't seem to have any evidential basis.
DeleteAppreciate very much the call for good collegiality.
Love a bit of professional gatekeeping! As other commentators have noted, this approach would disproportionately affect some countries and some socioeconomic groups. It's almost like the incumbents would like to raise the barriers to entry, thereby dissuade competition and allow them to maintain or increase their prices...
ReplyDeleteMind you, my salary is paid by tuition fees.
I agree with this completely. Just raising the barriers in order to maintain margins, especially since some parts of the job will surely be hit by the rise of AI.
DeleteRaising the visible barriers won’t make much difference. It seems the UK profession already has an invisible barrier requiring 4 year degrees.
DeleteOther invisible barriers remain. How many of our profession is private school educated and/or Oxbridge educated? Of course, anyone from this background in the profession is there on merit, but is that really the only place merit can be found? Until an AI can replicate the invisible requirements, some will be safe for quite some time.
Do fish know they are in water?
Also how many enter the profession having done the 1 year MSc IP course at QM (with current fees of £18,850, never mind the opportunity cost)?
DeleteUnpaid internships without travel and accommodation costs. That narrows the pool by design.
Partners who have household help, such as nannies, cleaners, gardeners, or a SAHpartner (typically a woman if we are being honest). All this sets the tone of what is expected in the profession right from day 1, and such a way of life is alien to those from a less privileged background.
The profession already is a closed shop, and only reflects the elite status of leading legal professionals (IP is one of the more lucrative legal areas) - https://www.suttontrust.com/wp-content/uploads/2019/12/Comparison_educational_backgrounds-1.pdf
Putting up a fight to retain a 3 year degree does little to fix the elitist nature of the profession. It might prevent it getting more elitist, but surely we can do better than that.
D&I has to improve everyone’s access to the profession, not just those who overcome all the invisible barriers.
Whilst it may be a societal problem, that doesn’t mean we can’t improve from within.
> Whilst it may be a societal problem, that doesn’t mean we can’t improve from within.
DeleteAny concrete ideas? Especially how to do it at a cross-national level?
Just to give you an idea: the number/percentage of women in a technology or science study course is very, very different between the different geographic directions withing Europe. Thus, also alerting women on the job profile of a patent attorney may be very different. And there are very committed people working on it at various national levels. The epi might foster their exchange, and also with people who are interested in starting similar initiatives in their own country, in case there seems to be a need.
Or would you want to go further and try to centralize outreach programs?
Yes, we definitely can do better to increase diversity within our profession.
DeleteThe Sutton Trust data is interesting, but it's old (2004) and relates to solicitors, barristers and judges. IPREG did its own diversity survey of over 1,100 registered patent and trade mark attorneys in 2021 (https://ipreg.org.uk/about-us/equality-diversity-and-inclusion/ipreg-diversity-survey-2021). This included over 900 patent attorneys.
Of those surveyed, 65% attended UK states schools and 24% attended UK independent schools (about 40% of those with a bursary). That's a much higher proportion from independent schools than in UK universities (<10%), but it does show that the vast majority of UK patent and trade mark attorneys are state school educated.
Interestingly, about 10% were eligible for free school meals while at school (an indicator of a low income household) and 45% were in the first generation of their family to go to university.
The training and qualification process for patent attorneys in the UK allows graduates to train "on the job" while earning a reasonable salary, which is different to many other legal professions that require periods of unpaid work or additional study. My own experience, those of colleagues and friends, and the IPREG data show that this profession enables real social mobility and I am proud of that. I know many senior partners whose origins are relatively humble (even if they don't seem like it now).
It's important that we make these kinds of opportunities available to as many people who have the abilities to capitalise on them as possible. An increase in the required academic level for the EQE is a step in the wrong direction.
I'm not saying the profession is a beacon of diversity. There is much more that can be done. But we're also not an elite closed shop either.
In answer to your specific question, CIPA data suggests that very few enter the profession having done the QM IP MSc.
Thank you, Matt. Interesting to see the stats from the IPReg survey. This profession is far from perfect, but at least in theory is accessible to anyone with a technical degree.
DeleteThe comments of Anonymous 1341 (more use of pseudonyms would be helpful) seem to be directed at much more generic problems in other professions and are a poor fit for patent attorneys specifically.
Learning on the job, and no need for an expensive, self-funded vocational course and/or conversion course before starting puts it very much more in reach than, say, the solicitor or barrister profession. Who, exactly, is doing unpaid internships? The closest to that I've seen is a week's vacation scheme at one or two firms, open to anyone but by no means required, and I think even those offer travel costs.
As you suggest, my experience is also that doing the QM course before starting as a trainee is very much the exception, rather than the rule. It's not the sort of thing that should be tossed out as an unanswered question, unless the asker has evidence that it is a significant problem. I'd certainly not suggest undertaking that course before applying to trainee positions and would hate anyone (employer or applicant) to get the idea that it is indeed required.
Thanks, Matt Dixon and EG Yabui, for confirming that you think that "Diversity & Inclusion" across the EPC countries should have as sole goal tackling the British class problem.
DeleteIt's interesting that you see it like that. That's certainly not what I think. As someone who has worked in both the UK and Germany I don't feel there is more of a "class" problem in the UK than there is in Germany, for example. Indeed, according to the OECD, the challenges to social mobility seem to be much more significant in Germany than in the UK (https://www.oecd.org/social/soc/Social-mobility-2018-Overview-MainFindings.pdf).
DeleteThe article from the epi D&I Working Group represents a view from a range of EPC countries and it is a view that I support wholeheartedly.
The animation of UK commentators against the proposed change to the degree level required to sit the EQE isn't necessarily due to a bigger problem in the UK, but could equally well be due to a greater *recognition* in the UK of an issue that exists in many (if not all) countries of the EPC. In my view, arbitrarily excluding some graduates from qualification as an EPA does nothing to increase the quality of patents or patent attorneys, but does unnecessarily reduce the opportunity for some to have an excellent professional career. I haven't seen any reasoned justification for making the profession more exclusive in this way.
I'm an inventor/patent attorney and I wouldn't trust AI to do my patent work. As an inventor, I want my attorney to look out for my commercial interest and tailor advice based on my needs in obtaining a patent. No chance I will rely on an AI software which will be used by many other firms/inventors/people. I see the need for higher education as the attorney must have a lot of scientific knowledge to interact with inventors. However, a 3-4 year undergraduate course should be sufficient. Off course, the higher the qualification and scientific experience, the better.
ReplyDeleteKeep an open mind - AI is more like an assistant or co-pilot. It will help you make patent work faster, more consistent, and more complete, especially when dealing with unfamiliar or infrequent technical areas or jurisdictions. There is also a big difference between the public AI tools and the patent-specific tools being developed. The millions of existing patent applications that have been written, searched, prosecuted, and examined in systematic ways by past professionals form a very good training set.
DeleteWhen I managed a small firm, we were happy with a mix of qualifications and experience. We also wanted intellectually curious (and social) attorneys who were willing to learn about new areas - e.g. for many clients, inventions moved swiftly from hardware to software (statistics), so attorneys also needed to do this.
Some deep specialisation is good, but it must be in new fields with a lot of inventive activity, which are usually those studied by the newest and youngest graduates. Adapt or die.
The EPO stance regarding degrees, as with it's ever-increasing language requirements when recruiting EPO examiners who will mainly examine English language applications (and consider English language prior art), appears to me to be all about reducing the number of Brits employed as EPO examiners, and increasing the number of Germans. The apparent epi stance on needlessly long degrees appears to be an equivalent move.
ReplyDeleteConsidering the official EPO numbers of examiners' nationalities in 2022 (taken from the Staff Report available at: https://www.epo.org/en/about-us/at-a-glance):
DeleteDE: 1724
FR: 1139
IT: 533
ES: 514
NL: 3XX (number not visible on illustration)
UK: 310
BE: 301
[+ each of the other countries having below 200, e.g., GR: 186]
It stands out that, e.g., nationals of IT, ES and NL have to master all three official EPO languages as foreign languages, which they do impressively well.
Don't you have the same language learning opportunities as anyone in Continental Europe? E.g., for FR and DE, there exist ample freely available online resources (not as many as for EN, but still a lot).
What are the ever increasing language requirements at the EPO? It used to be that they would accept examiners who spoke 2x of the languages, and given 2 years to learn the other. Has that changed?
DeleteTo the contrary, the language requirements have been recently reduced. English on C1-level is now enough to enter as an EPO examiner as it can be seen on jobs.epo.org:
Delete"Excellent knowledge (at least C1) of one official language (English, French or German) and the ability to understand the other two; alternatively, excellent knowledge (at least C1) of English (in such cases, the willingness to learn the missing languages and to reach level B2 within a set time frame would be required)."
Thanks. What is the background is for the new Masters requirement at the EPO? I completely understand the need for a high level of technical knowledge, as examiners will spend several years in one field. But I know that too much specialisation is a problem at the EPO because the technical areas receiving patents is continuously changing. And getting an examiner to switch technical fields can be difficult.
DeleteA lot has already been said about the requirements to become an qualified representative, but I would like to add my two pence on the discussion.
ReplyDeleteI do not know whether the conditions have changed at the EPO, but the rule to admit candidates for a job as examiner, was to have at least the qualifications required to be an examiner at the national patent office in the country of origin.
In this respect, British candidates had an advantage. A BSc was enough to be hired as examiner at the UKIPO. Some have a Master’s degree or even a PhD, but this was never a requirement.
A German candidate had to have a Master’s degree delivered by a University. This excluded German candidates having a mere Fachhochschulabschluss (FH) which was not considered as a University degree but only a degree from a University of Applied science. The difference does not seem as strong nowadays as it was in the past. On top of the degree, the DPMA required 5 years of experience in industry, whereby the time for a PhD could count as professional experience.
In France, for instance, a so called Baccalaureat + 5 years studies at university level was needed. This corresponds to the present Master level valid in the whole of the EU.
Claiming that it is better for an epi member to have a PhD is simply ridiculous. Like at the EPO, the qualification required to become a national patent representative should be enough. Anything above is good to take, but not mandatory.
Why on top of this a candidate to the EQE should have one year of practical experience remains a mystery. No justification has been given for this requirement. One year is at the same time too much and too little. The job of representative is the job in which experience plays a very big role and being successful at the EQE is only the first step. Spending one year somewhere in industry does not necessarily improve the quality as qualified representative.
It is once the EQE passed that matters become serious. Why should the holder of a PhD be better at the job than a representative not holding a PhD? What is also needed is not to be a specialist at the same level as an inventor. What is needed is a good scientific education and the capability to correctly analyse in depth as well to come to synthetic view in order to devise a claim as broad as possible within the framework of the original application. The rest is unnecessary and not really helpful.
The fact that examiners are only first hired on a 5 years contract pushed the EPO to actually lower the language requirements. In the past the EPO used to give in house language courses. Nowadays, if a candidate does want to see its initial 5 year contract to be renewed, he has to show a better level in the other two languages. The help at the EPO is not what it used to be.
By merely offering first 5 years contracts, the number of foreign candidates has been drastically reduced at the EPO. Which person, with some years of experience, sometimes having a family and children, will want to come to the EPO with the perspective to be on the dole after 5 years and by coming to Germany or The Netherlands severing all links with the social security and pension system in his country of origin? This also has a negative effect on the quality at the EPO. At least a representative will in general stay in its country of origin.