tag:blogger.com,1999:blog-5574479.post946340348264380222..comments2024-03-28T16:45:51.051+00:00Comments on The IPKat: BREAKING: Mercer Review on UK patent attorney exams releasedVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger50125tag:blogger.com,1999:blog-5574479.post-73119073155753770252021-11-18T09:53:21.253+00:002021-11-18T09:53:21.253+00:00I recognise you as the poster formerly known as Gi...I recognise you as the poster formerly known as Gilman Grundy, an ardent defender of FD4. <br /><br />My position is not that IV testing should be abolished, but rather that the current exam does not do this in a satisfactory way. <br /><br />I am keen to have a good faith debate. 2018 had a fundamentally flawed paper. 2020, albeit unintentionally, allowed for more time. Dismissing these facts as “upgrading marks” & an “easier” exam is straw manning. <br /><br />Mercer review did not endorse the current exam format either, no matter how favourably you might try and spin that. The Middlesex review was not an endorsement either. <br /><br />Have you anything to say about? <br /><br />As to passing in a harder year, and the insurance point, is this a new way of framing the “UK attorneys are best in the world” argument? Still waiting for evidence on that claim. Be interested to see how this claim plays out with the UPC. I doubt German attorneys are even worried of such a threat. <br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-66550460684147763812021-11-08T12:36:44.513+00:002021-11-08T12:36:44.513+00:00I'm assuming that "file patents to cover ...I'm assuming that <b>"file patents to cover their own products, building up a massive defensive portfolio"</b> here meant filing applications that actually protect your products by allowing you to enforce against infringement. This is the typical way that most people in the profession would understand the term "defensive portfolio". <br /><br />If we are instead talking about strictly defensive disclosures, made only to prevent others filing patent applications on the same thing, prosecuting patents disclosing the invention all the way to grant is the worst possible way of doing it given the availability of e.g., defensive disclosure databases that cost minimal fees to use. In many technology areas you could achieve substantially the same thing just by making sure that your e.g., product manuals get uploaded to the internet archive, which will archive them for free with a date-stamp. I really doubt that there are substantial numbers of people using patents that they have bothered to prosecute to grant as strictly defensive disclosures that they have no intent whatsoever of ever enforcing and do not care about the claim scope of. Defensive disclosures are rarely anything more than a subsidiary reason for filing a patent application.<br /><br />I'm also EP/UK qualified and work on I&V. I think passing P6/FD4 gives people an important basis in what is ultimately the core subject matter of the patent profession. We could do away with substantive examination tomorrow and I&V would still be at least as important, but without I&V practically no-one would bother to go through the expense of the patent prosecution process at all. That passing this exam is not a requirement for qualifying at the EP is neither here nor there. Simple qualification isn't the only thing anyone should care about, building competence is very important. It is also indicative that UK insurers (e.g., Pamia) tend not to insure EP-only attorneys as individuals.<br /><br />Finally, we have the fact that the Mercer report itself has refrained from endorsing any of the harsher criticisms of P6/FD4 often expressed here. It seems that there is a silent majority who made themselves heard in that process.<br /><br />For the record I agree that not every claim integer should have to be construed during the exam. I also agree that issues from outside I&V should not intrude into this exam and the length of it should be kept down. I passed the 2015 exam, which was one of the more difficult ones, and my writing hand felt like a rock at the end of it so I sympathise with people taking it now. I wish there could be more opportunities to take the exam.<br /><br />However, I don't think one incident of marks getting upgraded and another of the exam being perhaps a bit easier than in previous years (understandably following a global pandemic!) invalidates the whole process. No-one on here says this of the much more regular changes to marks awarded at the EQEs.FOARPnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-15133850850962622882021-11-04T13:04:24.185+00:002021-11-04T13:04:24.185+00:00No contradiction - defensive patents are to stop y...No contradiction - defensive patents are to stop your competitors asserting it against you. You are assuming patents are only used offensively. <br /><br />They key word is “aims” to test this. I am yet to hear how the current exam is doing this in a satisfactory way, as backed up by the Mercer Review. The burden of proof lies with those making this claim. 2018 changing pass mark after setting poorly thought out paper, 2020 one of the highest pass rates when candidates had more time. Doesn’t seem like IV understanding is the deciding factor. <br /><br />We are in agreement re. EP and hearing point, which doesn’t help your argument since there is no requirement to pass an infringement exam to do contentious work at the EPO, yet so many attorneys, including non UK EPAs and non-qualified UK EPAs can do this!<br /><br />For the record, I am dual qualified and work on I&V.<br /><br /><br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-84946755105700517212021-11-02T12:04:49.038+00:002021-11-02T12:04:49.038+00:00"Some clients just file patents to cover thei...<b>"Some clients just file patents to cover their own products, building up a massive defensive portfolio and could not care less what competitors do."</b><br /><br />This is a contradiction in terms. A "defensive" portfolio is necessarily one that is infringed when someone tries to use the subject matter that is "defended". They most definitely should care when their competitors do that.<br /><br />It is of course true that some portfolio managers misguidedly, and without realising what they are doing, favour excessively narrow claims that are very unlikely under any circumstances to be infringed, with the idea that this saves prosecution costs. As external counsel you should of course give the client what they ask for - but this is still done with the goal of having something that under the right circumstances is infringed and valid.<br /><br /><b>"I don’t have the stats to hand but the majority of patents are not enforced."</b><br /><br />No portfolio manager can know for sure which of their patents, if any, these are. Maximising the chance that any one of them will be useful is the goal.<br /><br /><b>"In the real world, a patent has to be valid first. An invalid patent is useless for infringement. Plus, you can’t just claim whatever is infringed and hope for the best."</b><br /><br />Which is great, because the ability to do this is what P6/FD4 aims to test, and tests in a way that is not excessively expensive or requires excessive amounts of time off work to attend various university courses. It tests it by presenting the examinee with prior art and a patent to be avoided or maintained in an infringing form, something no other exam that UK attorneys take actually tests.<br /><br />I really am confused by people who say that since they only handle EP work, I&V is not relevant. Just what do they think opposition work is ultimately about? Why do they think people oppose patents if not primarily, most of the time, because they are worried about infringing them? And what is the typical goal of the proprietor who is aware of an infringement normally other than to, most of the time and if they can, maintain claims that are infringed? I think most EP attorneys in reality do (or should) keep in mind potential infringements when drafting, e.g., ARs, and as such are actually doing I&V work whether they accept it or not.FOARPnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-40495351141485141942021-10-29T11:18:30.244+01:002021-10-29T11:18:30.244+01:00Some clients just file patents to cover their own ...Some clients just file patents to cover their own products, building up a massive defensive portfolio and could not care less what competitors do. I don’t have the stats to hand but the majority of patents are not enforced. <br /><br />In an ideal world, a patent might very well be valid and infringed. In the real world, a patent has to be valid first. An invalid patent is useless for infringement. Plus, you can’t just claim whatever is infringed and hope for the best. <br /><br />Yet, you miss the point entirely. How does FD4 test this skill in a satisfactory way? Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-67126675258715800642021-10-27T10:08:43.082+01:002021-10-27T10:08:43.082+01:00"There is very very little work on I&V pr..."There is very very little work on I&V projects in my firm over the 10 years I've been in the profession."<br /><br />I wish more attorneys understood better that ultimately infringement work IS what patents are actually FOR, and as such is the actual core substance of their work. No-one would bother spending all the money on prosecution work if they could not, at the end of it, have something they could enforce against infringers.<br /><br />This is why FD4 is important. It does not matter if you come up with a solution that is valid over the prior art, supported etc. if it is not also infringed by competitors ultimately making use of the inventive subject matter. That your work (but certainly not mine) rarely actually touches on I&V is neither here not there: the client would not even be paying you to do that work if they could not get something that was both I'ed and V'd when push come to shove. FOARPnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-25732285382932297822021-10-15T16:08:08.745+01:002021-10-15T16:08:08.745+01:00It's not only examination creep that's the...It's not only examination creep that's the problem, it's examination overload too particularly for FD4.Askfinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-12204812049220227632021-10-15T14:17:35.927+01:002021-10-15T14:17:35.927+01:00Other firms however use qualification as a means t...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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-24509271903100520212021-10-15T12:07:08.929+01:002021-10-15T12:07:08.929+01:00Alot of firms have been reasonable with wages rece...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. <br /><br />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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-90637085676148408672021-10-14T08:15:54.090+01:002021-10-14T08:15:54.090+01:00Wages have historically been kept low and it seems...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. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-37900031482909109102021-10-13T21:43:55.495+01:002021-10-13T21:43:55.495+01:00The UKIPO provides very good and detailed opinions...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.CSnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-85514475816909160572021-10-13T21:36:12.757+01:002021-10-13T21:36:12.757+01:00I do appreciate Mercer and his fellow colleagues f...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.<br /><br />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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-62421738119968864942021-10-13T21:25:14.128+01:002021-10-13T21:25:14.128+01:00Very true. Much harder to spot errors on screen an...Very true. Much harder to spot errors on screen and time pressure examinations definitely contributes to this.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-31846678702795114152021-10-13T15:43:22.301+01:002021-10-13T15:43:22.301+01:00I read this as a push-back to the recent drift inc...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. <br /><br />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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-30472645888537384962021-10-13T15:42:31.420+01:002021-10-13T15:42:31.420+01:00https://www.cipa.org.uk/news/review-aims-to-modern...https://www.cipa.org.uk/news/review-aims-to-modernise-and-improve-patent-attorney-training-in-the-uk/Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-43502958654638846442021-10-13T15:39:01.917+01:002021-10-13T15:39:01.917+01:00It is not a recommendation by the PEB to have a co...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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-52320781549186864612021-10-13T14:26:46.774+01:002021-10-13T14:26:46.774+01:00Hi Anon,
https://www.cipa.org.uk/journal/ is the l...Hi Anon,<br />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. <br />Ta,<br />JJoel David Briscoehttps://www.blogger.com/profile/04055303102815820644noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-13703799026120428632021-10-13T14:12:37.297+01:002021-10-13T14:12:37.297+01:00Basic and standardised learning for final examinat...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.<br /><br />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.<br /><br />This at least ensure those candidates in smaller firms or in house get the benefit of basic expectation and training for final exams.<br /><br />I'm sure most firm would be happy to pay for this as long as the fees are not horrendous.<br /><br />CIPA can run these courses for FD1, FD2, FD3 and FD4 to ensure fairness and standardise learning.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-33166750991459230992021-10-13T14:01:18.030+01:002021-10-13T14:01:18.030+01:00It's in the latest CIPA journalIt's in the latest CIPA journal Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-49030176982139541802021-10-13T14:00:58.165+01:002021-10-13T14:00:58.165+01:00I do agree with alot of recommendations in the Mer...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). <br /><br />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. <br /><br />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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-80128807480134217762021-10-13T08:15:40.103+01:002021-10-13T08:15:40.103+01:00Agreed. It's always a rush job and some sectio...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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-90129920855952507542021-10-13T08:07:59.371+01:002021-10-13T08:07:59.371+01:00Does anyone has a link to the full report?Does anyone has a link to the full report?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-11204893918351330312021-10-13T08:06:39.083+01:002021-10-13T08:06:39.083+01:00Moving online is a good move. My concern is that i...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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-85669504431560790232021-10-12T18:27:14.991+01:002021-10-12T18:27:14.991+01:00They keep packing more and more issues in FD4 and ...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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-39200597425702533552021-10-11T20:14:00.102+01:002021-10-11T20:14:00.102+01:00The recommendation to have all trainees take the f...The recommendation to have all trainees take the foundation exams seems almost a joke... <br /><br />"The Mercer Review notes statistics that candidates who sat the foundation exams were more successful in the Final Diploma examinations."<br /><br />Of course this is the case, they are largely just filtering for people who are good at passing exams!<br /><br />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.<br /><br />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.<br /><br />For a profession that is all about the detail, which do you think has a better learning outcome for providing complicated IV legal advice? Anonymousnoreply@blogger.com