http://ipkitten.blogspot.com/2021/10/breaking-mercer-review-on-uk-patent.html
As trainee patent attorneys across the country begin their final days of preparation for the UK qualifying examinations, CIPA today released the long-awaited Mercer Review. The Review has been published in the latest version of the CIPA journal (CIPA login required).
Background: A need for change
The CIPA president announced the launch of the Mercer Review at the CIPA East of England regional conference back in 2019, following the debacle of the 2018 FD4/P6 examination (IPKat). The flood of criticism levelled at the Patent Examination Board (PEB) following so-called Gantry-Gate (after the borderline incomprehensible subject-matter of the 2018 FD4/P6 paper). The UK qualifying patent examinations were criticised, as they had been for years, for being out-dated and unfit for the purpose of actually assessing whether a candidate is fit to practise (IPKat).
| Final days of revision |
The Mercer Review includes a review of the submissions on a broad range of topics related to patent attorney training and exams. Members of the Review Group included Chris Mercer, Lindsay Pike (Informals Hon. Sec.), Joel David Briscoe (former Informals Hon. Sec.) and former CIPA presidents Julia Florence and Roger Burt.
The Mercer Review’s Recommendations
The Mercer Review provides a large number of recommendations, some more concrete than others, and these are summarised at the end of the Review. Here is a selection of a few of the recommendations that this Kat considers may have the most practical consequences if implemented:
All trainees should take the PEB Foundation exams
At the moment, it is possible for trainee patent attorneys to take either a University run course and exams or the CIPA Foundations exams. The Mercer Review notes statistics that candidates who sat the foundation exams were more successful in the Final Diploma examinations. The Review therefore recommends that all trainees should be required to take the PEB Foundations exams. Different providers could continue to provide the training, but the examination would be the same. This recommendation is repeated multiple times throughout the Review.
The Final Diplomas should focus on assessing the core skills
On the content of the exams themselves, the Mercer Review recommends that the final examinations should not require detailed advice on points not relevant to the main topics. The Review notes the view that there has been “examination creep” over recent years, whereby the exams have gradually become over-complicated and too long. The Review thus recommends that the exam should be limited to assessing the skill they are designed to assess (i.e. drafting in the drafting exam), and should not attempt to test tangential skills or knowledge. The Review also recommends that each exam should be no longer than 4 hours.
On the technical complexity of the subject matter, the Mercer Review recommends that the drafting paper (FD2) should relate to “generally-accessible technology”, but is silent on whether the same should apply to the other papers, such as FD4.
Mark schemes should not be provided for the Final Diploma exams
On the controversial topic of marking schemes, the Review notes the view that marking schemes may detract from a focus on providing a holistic answer, e.g. by rewarding FD4 candidates for defining inconsequential words. The Review therefore recommends that the PEB no longer makes marks schemes available but “provides more detailed examination reports and provides train-the-trainer sessions immediately after release of the results”. The Review also recommends that the PEB should make it clear that the examiners “are looking to see whether the answer as a whole merits a passing mark so that candidates do not concentrate on ‘mark gathering'”. The view that answers should be “holistic”, will be familiar to anyone who has attended training sessions by the more grey-haired of the profession who recall the days in which the correct approach to P6 was to contemplate, without putting pen to paper, for at least the first 2 hours of the exam.
If marking schemes are dispensed with, the PEB will have to work hard to ensure that the requirements for passing the exams are adequately communicated to all trainees, and not just those lucky enough to attend expensive training courses.
Exams should be online and semi-open book
Perhaps most radically, the Mercer Review recommends that “candidates should have read-only access to a limited selection of sources to be determined by the PEB”, to make the exams closer to real life. Continuing with online examinations is also recommended. Despite a problematic build-up, the online examinations were generally considered a success (at least compared to the rather chaotic e-EQEs). Part of this success was arguably the simplicity of the technology compared to the complicated system requirements for the eEQEs. This year, the UK PEB exams are using a commercial proctoring system that doesn’t allow much room for technical error (and importantly requires users to be appropriately dressed…presumably to spare the blushes of candidates and invigilators alike). The Mercer Review recommends that going-forward the PEB should use the system as the EQE to reduce the complexity of systems candidates are required to be familiar with.
CIPA, IPReg and the PEB
As the many comments on IPKat testify, many trainees find interactions with the PEB frustrating, to say the least. The Mercer Review notes the general lack of awareness that, despite the fact that the PEB operates from the CIPA office and its staff are employed by CIPA, the PEB is independent of CIPA. The Mercer Review also notes the submissions raising concerns about “the openness and transparency of PEB, particularly in relation to the marking of examination scripts and appeals”. The Review recommends that IPReg should review, with CIPA, the requirement for the PEB to be independent of CIPA in terms of its governance and financial control.
Improved training
Lindsay Pike (Honorary Secretary of the informals) and Joel David Briscoe (former Honorary Secretary) were co-authors of the Mercer review, in particular Chapter 2 on training. A particular concern raised in the responses to the review was the disparity of training offered to trainees at different firms and in-house. The Mercer Review thus recommends that IPReg should require prospective trainees to be given details of the training scheme with which they will be provided, preferably in the form of a training contract.
In response to the publication of the Mercer Review, the Informals have commented:
We feel that the Mercer Review has been fair across the board with their recommendations – and has really tried to come up with some actionable recommendations based on the responses, which have also had to evolve over the pandemic. For example, many of the responses called for computer-based exams, which we now already have – so the focus shifted to ensuring that the computer-based exams are here to stay, and are provided in an appropriate manner.
We have already started reviewing and updating our new starters handbook to give those coming into the profession a better idea of what to look out for, which is a direct result of this review. We are also looking to create resources that will give potential trainees (and current trainees) an idea of what to look for in an employment contract, such as days off for training, the route to qualification (university or FC exams), claw-back on training costs if you move jobs, and the like – which were all clear pain points from many trainees’ responses.
Final thoughts
The Mercer Report therefore provides some clear recommendations that could be implemented by the PEB should they wish to improve the current offering to patent attorney trainees. There have been reports into the UK patent exams before, for example the Middlesex Review on FD4/P6 exam (provided as an Annex to the Mercer Review). However, little was done to address the concerns raised in the Middlesex Report. The hope is that the eminent voices of Mr Mercer et al. will be less easy for the PEB, CIPA and IPReg to ignore.
Critically, nothing in the Mercer Review will affect the examinations taking place next week. To everyone taking these exams, good luck!
Further reading
26 Feb 2019: 2018 FD4 (P6 – Infringement and Validity) Pass Mark Reduced
8 March 2019: Gantry-gate: CIPA releases statement on FD4/P6 (Infringement and Validity)
4 Feb 2020: Gantry-Gate: Have your say in the Mercer Review
13 April 2021: EPO plans radical shake-up of EQEs 2024 onwards
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