UK: A Year In The Life Of The Patent Examination Board

Last Updated: 23 July 2015
Article by Julia Gwilt

The Joint Examination Board (JEB) was replaced by the Patent Examination Board (PEB) in late 2013. This was in response to ITMA wishing to no longer remain part of the JEB (with the assessment of trade mark attorneys instead being based solely on the University route). As a result, approval from IPReg was required for a new examination board – the PEB – which also required more formalisation of the Board and the examination process to gain approval from IPReg. After its first successful year of operation, Andrew White (Informals Education Secretary) speaks to Julia Gwilt about how this first year has been and how the role of the PEB helps to ensure that patent attorneys can expect consistency and clarity from the new examination board.

Hi Julia, thanks for taking the time to meet me. What is the structure of the PEB and what is your role within it?

The PEB comprises a Governance Board, an Examination Committee, and an Executive body. The PEB has a constitution that defines its roles. As stipulated by IPReg, the Governance Board comprises two patent attorneys and a majority (three) lay members. These three lay members have a background in education and assessment. I am one of the two patent attorneys on the Governance Board.

The Examination Committee comprises Principal Examiners for each paper as well as a Chief Examiner for Foundations and a Chief Examiner for Finals. Each paper has a Principal Examiner that has responsibility for the setting and oversight of each paper. The Chief Examiners have oversight over all papers at the relevant level. The Examination Committee also comprises a number of marking Examiners. Last year I was also Chief Examiner for the Foundations papers as well as being on the Governance Board. This is not the plan going forward; it was to help with the transition to the new structure.

The Executive body runs all the back office functions, such as dealing with examination entries, and most importantly helps ensure that everything runs smoothly and helps ensure that things get done.

What is the role of the lay members and why does this help us as patent attorneys?

The lay members are probably the biggest change when comparing the PEB to the JEB, and really help to provide a different insight into testing the core skills required of a patent attorney – which after all is the role of the PEB. In setting up the PEB we went through a public interview process to select these three lay members, and were overwhelmed at the quality, calibre and number of candidates (over 40) applying. All the lay members selected have extensive experience in the field of education – academic and professional. This enables us as the PEB to open up a new dialogue about what it is that is being tested of a patent attorney – in effect it helps give us greater clarity as to what the exams are trying to achieve. IPReg was involved in the selection process of the lay members which helped to show that the PEB is impartial and thus gain approval from IPReg as an examining body.

How has the transition from JEB to PEB been?

A lot of work has been done "behind the scenes" – largely a lot of overlaying of processes and procedures to formalise how the exams are run and documenting processes. Although this may seem like a lot of extra work, it should help to ensure consistency between the exams from year to year. We have also defined a number of quality assurance roles to help in this respect. In addition we have retained a large number of examiners from the JEB on the PEB which means that, although their roles have changed slightly (in terms of what the examiners have to deliver and by when), there should be continuity between the exam papers over this transitional period.

Looking at the new PEB website, one of the most obvious changes that the PEB has implemented (apart from the renaming of the exams) is the publication of new syllabi and examination guidance notes. Why were these changes made, and are there any greater changes that both trainees and trainers will see/experience?

The changes to the syllabi and the provision of the examination guidance notes were a result of discussions with the lay members. Although the syllabi are still written by the two patent attorney members of the Governance Board together with the relevant Principal examiners, the lay members really questioned us as to what it is that we, as the PEB, are trying to test and why. This has resulted in the use of "Blooms Taxonomy" (i.e. the use of the learning outcomes and objectives) as part of the syllabi – allowing us to distinguish between the skills tested at foundations level (for example indicated by the use of lower level skills such as "describe") compared to advanced level (for example indicated by the use of higher level skills such as "analyse"). The actual material being tested remains largely the same (the same sections of the Act and Rules are being tested) – instead it is hoped that the new syllabi and guidance notes makes it clearer what is being tested so that candidates can be better prepared (and pass!) when they sit the exams.

How are the exam papers set and marked?

The responsibility for each exam paper (at both foundation and advanced level) primarily lies with the Principal Examiner for each paper with oversight from the appropriate Chief Examiner. The papers are marked by marking examiners (the exact number depends on the number of candidates). The Chief Examiners and the members of the Governance Board will see the papers, but by and large the papers are set by the (experienced) Principal Examiners. As part of the new syllabi, particularly with respect to the advanced level examinations, an aim is to ensure "commonality" among the papers – for example, FD2, FD3 and FD4 (P3, P4 and P6 in old money) – and so there will be consultation between the Principal Examiners responsible for these papers.

In terms of marking, each finals paper is marked by two marking examiners. If a candidate's average mark is close to 50, or if there is a large discrepancy between the two marks awarded, the script is reviewed by the Principal Examiner.

Something new you'll see we introduced this year is a breakdown of the spread of marks per paper – so that it is easy to see if there were a lot scripts close to the pass mark.

Is there any aim to achieve a particular pass rate in the papers? For example, many candidates will look at the pass rates and infer that, for example, if last year's paper had a low pass rate then next year's paper will be easier. Is there any truth in this?

No – there is no aim to achieve a particular pass rate. Sometimes looking at the pass rates can be misleading, for example if a large number of candidates failed a paper one year, the pass rate may be higher the next year – this doesn't mean that that paper is easier, it may just mean that the candidates were better prepared because they had another year to prepare. Ideally we want all candidates to prepare well enough to pass. That is why we have tried to make the syllabi clearer. What is more worrying to us is when it is clear that a candidate has sat the paper without preparing at all (or nowhere near well enough). Publishing the spread of marks for each paper as we have started doing now helps to show where candidates have prepared very poorly or not at all, or have just sat the exam too early.

I see from your website that there is a draft syllabus for the litigation skills course. What is happening with this?

The PEB and CIPA are both still awaiting approval from IPReg before they can start assessing and providing training for the basic litigation skills course respectively. The draft syllabi published for the basic litigation skills course expands upon the list of skills to be tested as defined by IPReg – therefore other third parties that may already be providing basic litigation skills courses will have to reach the same standard. The PEB draft syllabus expands upon this and hopefully makes it clearer what we will be testing. [NB: Approval was received shortly after the interview.]

Can we expect any other changes from the PEB in future?

The most major potential change depends on IPReg's overdue response to the public consultation on proposed reforms to the examination system that ended in March 2014. We still have not heard anything further from IPReg on this point and so cannot comment further.

Another change we hope to implement – based on discussions with the Informals – is to try and bring the publication of exam results forward (without clashing with the EQEs). However, I am sure you will appreciate that we have tried not to change too much too quickly for fear of compromising the quality of marking of scripts.

Fundamentally we want everyone to pass the exams as we want there to be more good quality patent attorneys out there. However we do not want to lower the standard of the exams and we do not believe that this will be beneficial to the profession. Our job is to make it clear what is being examined and ensure consistency among the exams, so that well-prepared candidates can sit and pass them.

This article originally appeared in the April 2015 edition of the CIPA Journal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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