Journal

Chapter 2 – Training

Mercer Review: Chapter 2 – Training

1. Introduction

1.1. The Mercer Review Call for Evidence asked a number of questions regarding training as a UK patent attorney:

• Q2a) Do you have any comments about the current knowledge, understanding and practice covered by the Foundation Certificate examinations?
• Q2b) Are there any additional areas of knowledge, understanding or practice that should be covered by the Foundation Certificate examinations
• Q2c) Are there any areas of knowledge, understanding or practice that should be removed from the Foundation Certificate examinations?
• Q2d) Do you have any other comments about the Foundation Certificate examinations, for example in terms of language, timing, subject matter or training period?
• Q2e) Do you have any comments about the use of university qualifications, such as those provided by Queen Mary University of London, Bournemouth University and Brunel University, as an alternative to the Foundation Certificate?
• Q3a) Do you have any comments about the current knowledge, understanding and practice covered by the Final Diploma examinations?
• Q3b) Are there any additional areas of knowledge, understanding or practice that should be covered by the Final Diploma examinations?
• Q3c) Are there any areas of knowledge, understanding or practice that should be removed from the Final Diploma examinations?
• Q3d) Do you have any other comments about the Final Diploma examinations, for example in terms of language, timing, subject matter or training period?
• Q6a) Do you have any comments about the requirement for newly qualified patent attorneys to obtain a qualification in Litigation Skills within three years of entry onto the Register?
• Q7a) re there any other areas of knowledge, understanding or practice for which CPD should be mandatory following admission to the Register?
• Q8a) Do you have any comments about the professional education and training of trainee patent attorneys in preparation for qualification?
• Q8b) Should there be greater guidance on the knowledge, understanding and practice required for trainee patent attorneys to undertake the PEB examinations?
• Q8c) Should there be a mandatory training requirement before a trainee patent attorney is eligible for entry to the PEB examinations? If so, how could this be applied uniformly, given the vast range in size of patent attorney firms and in-house departments?
• Q8d) Do you have any comments about the support provided for trainee patent attorneys by the Informals?
• Q8e) Do you have any comments about the general support available for trainee patent attorneys?
• Q9a) Do you have any other comments or observations about the education, training and assessment of patent attorneys?

2. Methodology

2.1. This sub-group was tasked with reviewing the responses to these questions. More generally, we considered whether current training measures are adequately training candidates to be qualified and successful patent attorneys.

2.2. The responses to the Call for Evidence gave rise to a good deal of consideration as to what learning and training is required. In this chapter, we summarise the responses received in relation to different topics. We also summarise some of the activity which is already taking place.

3. Existing training

3.1. In this section, we summarise some of the activity which is already taking place.

3.2. Pre-joining information

3.2.1. From a review of the responses, it is clear that more information should be given to those who are entering the profession so that they understand what they are getting into. Some information is available via the following websites (not all of which are easy to navigate):

• CIPA website;
• Yellow Sheet website;
• Informals social media pages (such as a LinkedIn group and Twitter)
• IPReg;
• PEB;
• IP Careers;
• Careers in Ideas; and
• Firms’ websites.

3.2.2. There are many routes to qualifying as a patent attorney and different employers will provide different experiences. When looking for an initial job, trainees are likely to take what is available and may not understand the upsides and downsides of the different routes. They will never be the same: employers have different resources, different opportunities, different workflows and different ways of training. Sometimes, trainees will have to move jobs in order to get a type of training which suits them.

3.2.3. The core set of standards which are required to be a patent attorney have been discussed in Chapter 1. A trainee needs to be able to meet these standards, regardless of whether one ends up practising in a small corner of the profession or in a broad-based practice. That may require trainees to learn topics which are not germane to their current job, but may be required by a different employer.

3.2.4. The Informals is already reviewing information on some of those websites and seeking to provide entry-level guidance. This is also likely to include what to look out for in employment contracts and what to ask about training.

3.3. New Entrants

3.3.1. CIPA runs a training course for new entrants. This used to be a single day at CIPA but, in 2020, was delivered over Zoom over a number of different days. That will make it more accessible to those who cannot come to London for the day course but is less effective for networking.

3.3.2. The Informals have been putting a buddy scheme in place, to help new trainees find their feet, with support from those in other firms.

3.3.3. The Informals have also established a new committee role, the Welfare Officer. The Welfare Office is a focal point for information relating to mental health and wellbeing. The Informals have also established a Welfare and Wellbeing section of the Yellow Sheet blog that provides a repository of information and resources. The Informals now also has a number of Mental Health First Aiders (MHFA) and manage a MHFA email to support trainees. Finally, the Welfare Officer provides the link between the Informals committee and the mental health charities such as Jonathan’s Voice

3.4. Support for trainers

3.4.1. CIPA has been providing ‘Train the Trainer’ seminars. Only a few of these were put on before Lockdown. They do not work so well remotely and will be revived once the pandemic is over.

3.4.2. CIPA’s Education Committee is planning a trainer network to enable firms to discuss best practice and support each other with issues relating to trainees and training.

3.5. Foundation training

3.5.1. CIPA has new foundation training manuals in hand. The Patent training manual is the most advanced. Work is also underway on Trade Mark and Design training manuals.

3.5.2. The members of the Informals are provided with a free copy of Paul Cole’s book on drafting. At least one commenter suggested that the patent training manual replaces Paul Cole’s book.

3.5.3. The Informals are in the process of delivering a revamped set of foundation lectures. They intend to take advantage of the new CIPA website and its ability to store and make content accessible. These lectures may not then need updating from year to year.

3.5.4. There are commercial organisations which organise courses to prepare candidates for the FC examinations.

3.5.5. There are three IPReg accredited university-based courses which provide exemption from the FC examinations.

3.6. Finals training

3.6.1. This is the area where there is least support. There is difficulty in knowing what is needed, given the different routes to foundation-level qualification, the different amounts of in-house training that different firms can provide, and whether a trainee is in private practice or in industry. However, IP Inclusive mentioned a number of statistics in their response, one of which was that 18.1% of student respondents to their 2019 survey stated that insufficient support through training was a leading cause of stress.

3.6.2. A common theme is that any training opportunities, e.g., meetings, seminars, and webinars, tend to be heavily London-centric, such as the Informals’ lecture series. There is no doubt that in recent times the shift to online webinars, seminars and meetings has helped with the geographical issues. However, care must be taken to ensure that things don’t regress.

3.6.3. The Informals are planning an advanced lecture series. The bandwidth freed up by the foundation lectures moving to a video-on-demand service will enable the Informals Lecture Officer to focus on providing more advanced lectures to support finals standard training, tailored towards the PEB final diploma examinations. However, a number of responses made the case that the Informals should not be a body that provides primary training. In particular, some questioned if the responsibility should lie with the students of the profession to organise such events, as opposed to the Institute as a whole and the employers who belong to it.

3.6.4. There were a number of comments that CIPA should be taking the lead on the professional education and training and trainee patent attorneys in preparation for qualification. Many responses indicated that CIPA should work to reduce the variability in training across the profession. Currently, CIPA organises tutorials to help those with what is required in the examinations and provides webinars on the FD examinations. In particular, a number of responses highlights that the ability of qualified attorneys to provide guidance on exam-specific technique is limited, particularly as the nature of the exams appears to evolve over time. Therefore, firms rely on external partners and providers to provide the exam specific technique. One response in particular proposed consultations between PEB and organisations offering training, so that the training accurately reflects what the PEB is looking for. Training for the EQEs demonstrates that such consultations can take place without comprising the examination process.

3.6.5. The Informals also provide a mentoring programme for repeat resitters of FD1 and FD4 (specifically two or more attempts). The mentoring programme connects the resitters with mentors within the profession with experience in tutoring for FD1, FD4, or both.

3.6.6. There are commercial organisations which organise courses to prepare candidates for the Final Diploma examinations. The quality of these courses is variable not only by provider, but also by tutors who work for those providers. Some come highly recommended, others less so. It is noted that the providers offer techniques to pass the PEB examinations, potentially highlighting that the PEB exams rely on technique as much as knowledge.

3.6.7. For the last few years, CIPA has run webinars on what is expected in some of the PEB examinations. CIPA is hoping to arrange further communication between the PEB examiners and those who are training those preparing to sit the examinations.

3.6.8. Part of what is currently tested are skills, rather than simply knowledge. Skills take time to build up. This requires the trainees to spend time trying to accumulate those skills either by being given real world experience on client work, by being set test exercises by trainers or by working through old examination papers (which are based on real world problems). Some of this can only be learned by the trainees putting in the time, over a period of years, to learn the relevant skills.

3.6.9. There is a limit to what CIPA can provide by way of training. There is a balance between what CIPA training is free to members and what needs further payment. Although their partners and many members of staff are likely to be members of CIPA, the individual private practices are in competition with each other – and that competition extends to competing for the best students and the best qualified staff. It is not to be expected that those firms (or industrial departments) who offer the least training can have their trainees trained by those firms who offer the most training. However, CIPA aim to increase some of the Advanced level training by seeking input from across the profession.

3.6.10. A few responses have called upon the PEB to provide the training that CIPA, the informals, or the profession cannot. Suggestions include providing online courses or recorded seminars that are freely accessible to all, regardless of the size of firm or in-house department.

3.6.11. Greater support for trainees’ mental health and wellbeing has been discussed, in particular from the individual responses. As discussed above, the Informals recently established a new role, the Welfare Officer, A new Welfare and Wellbeing section of the Yellow Sheet blog has also been created to further signpost the support available for trainees, such as LawCare, Jonathan’s Voice, Samaritans, IP Inclusive, as well as the Informals’ own Mental Health First Aid email line.

3.7. Post-Qualification training

3.7.1. CIPA provides a series of webinars which are run by the Professional Development Working Group (PDWG, a CIPA sub-committee). Input for those webinars is constantly sought. These are now free to CIPA members as part of the membership fee. Some special webinars require an additional fee.

3.7.2. CIPA provides a number of conferences each year including the Life Sciences Conference and CIPA Congress, which both provide CPD.

3.7.3. CIPA runs an EPO Oral Proceedings training course.

3.7.4. CIPA runs the IPEC training course.

3.7.5. CIPA has stopped running the Basic Litigation Skills course as there was insufficient demand from the profession and there was competition from CPD Training and Nottingham Law School (but there are comments to rethink this or fold some of the training into other parts of the curriculum).

3.7.6. Both CIPA and IPInclusive provide a number of soft skills training courses.

3.7.7. There are some thoughts about providing further certificates for training in specialised areas, which may not need to be examined – but could be directed to certain post qualification specialisations – such as SPCs or licensing.

4. Foundation Routes

4.1. Availability of different routes (accessibility)

4.1.1. Overall, there was considerable support for maintaining both the Foundation Certificate and university exemption course routes as options for learning foundation-level content (though as discussed in the previous chapter, the university course examinations may require some modifications). This flexibility is a key strength of the UK system; reducing options would harm access to the profession and diversity within the profession.

4.1.2. Several respondents commented that the Foundation Certificate provides accessibility to trainees who cannot attend the university courses, for various reasons. Reasons for not being able or not wanting to attend (or send trainees to) university courses included: in-house or small firm employers unable to lose their employees for months at a time; high cost of courses; location; disruption to work/training; hard to attend if a trainee has caring responsibilities. These comments came from trainees and employers.

4.1.3. In contrast, some in-house trainees considered the exemption courses essential as it was hard to prepare for the FC examinations whilst working in-house.

4.1.4. There appears to be a number of firms who exclusively use one or the other. For example, some firms exclusively send their trainees to QM-UL, whereas others exclusively have their trainees sit the FC examinations.

4.1.5. There were no comments that demonstrated support for removing the FC examinations and many comments actively against this. Some respondents were against this since it would permit loss of control over training candidates and possibly be a conflict of interest, as well as the reduction in accessibility. On the other hand, there were some comments that indicated their support for abolishing the exemptions provided by the three university courses. Reasons for this included that the taught courses would not ensure candidates possess the necessary skills at a viable training cost and that the content was less useful for day-to-day skills or the FD examinations.

4.1.6. Some respondents expressed a concern that the FC papers can take a very long time to pass, which is unfair to those trainees taking the FC rather than an exempting course. Others expressed concerns that the content/amount of work required for the different courses and the FC can differ vastly. Similarly, there was some concern over the difference in pass rates between the university courses and the FC examinations and those expressing this concerned also indicated this gap ought to be addressed and closed.

4.1.7. There were several comments indicating they would prefer the university courses to be standardised with each other and with the FC. In that sense, the university courses could teach to the FC examinations, so that all trainees sit the same examinations and have the same overall grounding for the Final Diploma. Others suggested the FC could be made more similar to university courses (in particular QM-UL). These comments came from trainees and employers; from these respondents, there was generally a view that more standardised foundation routes would be fairer, would promote consistency in training/standard of trainees and would better prepare trainees for the FD.

4.1.8. However, other respondents mentioned that the difference between courses and the FC was irrelevant since everyone would have to sit the same FD, and that would sufficiently standardise candidates.

4.2. Regional Considerations

4.2.1. There were several comments regarding the geographical basis of foundation training routes, particularly of university courses that provide exemptions from the Foundation Certificate. Brunel University, Bournemouth University and QM-UL are all based in the south/south-east of England. This makes it more difficult for trainees in other areas to attend these courses. Several respondents commented there should be more options available in other areas e.g. the north of England. These comments came from trainees and employers.

4.2.2. In addition, and possibly in light of the Covid-19 pandemic, there were comments expressing that a stronger reliance on technology by the universities would support more extensive distance learning.

4.2.3. We note that at least the Bournemouth University course is partly a distance learning course; and due to the Covid-19 pandemic, the 2020-2021 QM-UL course was entirely distance learning.

4.2.4. We further note that a course ran by the University of Manchester used to exist until relatively recently. However, this course was discontinued because it could not get enough participants to be viable to run, despite being well supported by both industry and private practice.

4.3. The Different University Options

4.3.1. Some respondents commented that, of the university options, they did not rate the Bournemouth University and/or Brunel University courses as highly as the QM-UL course. In particular, there were multiple comments expressing concern that the Bournemouth course only has a single examination and that English law is unexamined in that examination. Other respondents did highly rate Bournemouth and commented that it had excellent, high-quality teaching materials. One firm mentioned that they stopped using the Brunel University course due to the lack of relevant teaching and little rigour in the examinations.

4.3.2. In general, from several respondents it seems that the university courses, particularly QM-UL and Bournemouth, offer a good coverage of the fundamental knowledge that trainees need – and that possibly is not gained by the FC.

4.3.3. There were also comments expressing concern over the quality of teaching at QM-UL. One anecdote recounted a lecture being repeated several weeks after it had already been given and was continued despite the lecturer being reminded by attendees they had already had this lecture. Other commenters also thought the standards of QM-UL might be falling and/or that the QM-UL course was teaching to pass examinations rather than to be a patent attorney.

4.3.4. Several respondents commented that the university courses may need reviewing/auditing more frequently than present to ensure they are still of sufficient quality and covering suitable content to adequately teach trainee patent attorneys what they need to know.

4.3.5. We note that at present, the university courses do not feature the same exams as the Foundation Certificate, but it is possible that they could, in the future, teach to the same FC examinations to help unite the foundation level training routes.

4.4. Other Considerations

4.4.1. Several commenters noted that the timing of any changes, implemented as a result of the Mercer Review, must be considered to prevent any negative impacts on trainees. For instance, it was noted by several commenters that some trainees who work in-house do not have a supervisor who is qualified, and thus heavily rely upon the Informals and CIPA to provide not just training webinars and seminars, but also network opportunities. Any alterations to the training required to become fully qualified may disproportionately disadvantage in-house and small firm trainees who already have a non-conventional route to qualification, and the information may take some time to transmit across the entire profession.

4.4.2. The online European Qualifying Examinations (eEQEs) are a part of the EPO’s overall digital strategy for modernising the examinations. In a discussion paper published by epi, an exemplary timescale of 3 years (at least two whole examination cycles) for implementing changes to the examination process is given, with provisions for trainees on the legacy examinations. Early feedback appears to agree this is a reasonable approach to any changes made to an examination structure in the profession.

4.4.3. There were several comments expressing a desire for the number of study days/amount of study leave available for preparing for examinations to be increased. Reasons for this desire included: to sufficiently complete the large amount of examination preparation indicated necessary; and, on the basis that the qualification is essential to the job, so more time in working hours should be available to dedicate to training. This would especially help/improve accessibility to those with caring responsibilities.

4.4.4. There were also a few comments indicating that the Informals foundation lectures are not reliable for first teaching and need to be improved.

4.4.5. It was also suggested that, outside the profession, it was unclear which courses are or are not accredited and that more clear guidance on this would help those wishing to enter the profession, amongst others.

4.4.6. One person commented that pay rises/promotions could be allocated per examination passed, rather than once passing all the examinations (either FC or FD), to promote a more even rise in salary/fairness between trainees at different employers.

4.4.7. IP Inclusive and the Informals have suggested that a template training contract be provided, by which employers commit to supporting their trainees through the qualification system, and which clarify the arrangements for study leave; payment of exam entrance fees and tuition fees; provision of resources such as text books; in-house tuition and supervisor availability; pastoral support and the resolution of problems; whether and how these arrangements differ for exam resits; and outline example claw-back clauses.

5. Training Periods

5.1. There were several responses which raised the issue of whether there should be a compulsory training period before a candidate could be allowed to attempt the FC examinations. Such a training period would be in line with the current EQE system that requires candidates to be in the profession for two years before they can sit the EQE pre-examination (pre-EQE). Of the responses, some were in favour of a compulsory training period and considered this could take the form of minimum time in office (examples given included 1 or 2.5 years) or minimum number of tutorials attended before being able to sit FD examinations. Others suggested a minimum number of past examination papers should be attempted (and possibly marked/reviewed by a qualified attorney) before the finals could be taken.

5.2. Others in favour suggested a minimum of e.g. three years in the profession before being able to register as a registered attorney – this would prevent candidates registering before this time even if they had passed all examinations, ensuring sufficient development of ‘soft’ skills.

5.3. Of those in support of a minimum training period, some expressed concern of a possible overlap with the EQEs and that they thought this should be avoided.

5.4. Some specifically mentioned a minimum period, such as one year, before being able to sit foundation examinations (either FC or the appropriate university course exams).

5.5. On the other hand, many respondents were against a minimum training period. Some considered that no minimum training period was necessary, especially considering IPReg’s requirement of two years under supervision or four years without supervision before entry to the register.

5.6. Of those against such a minimum training period, many were of the opinion that time makes no difference to passing some of the FD examinations. For example, some candidates pass e.g. FD4 on their first attempt while others take it multiple times before passing. There appears to be no correlation (i.e. there is no trend that the more years’ training one has, the more likely one is to pass the FD exams). Introducing such a time limit would therefore make it even harder to qualify. On this note, however, we refer again to the December 2019 CIPA Journal article by Julia Gwilt reporting statistics on PEB examinations, which shows that completing a longer training period before sitting the examination for the first time appears to be beneficial.

5.7. Similarly, some commented that, because trainees might not be exposed to some types of work at their particular employer (e.g. drafting), a minimum training period of two or three years would make limited difference to their (drafting) ability.

5.8. Others mentioned that the mandatory training period for the EQEs does not appear to have a bearing on the EQE pass rate either and so might not help improve pass rates. Others commented that such a minimum period would harm the flexibility that is provided by the current system and that makes allowances for individual circumstances. For example, someone may enter the profession having already worked in the IP world for many years and may be more likely to pass examinations more quickly than someone entering the profession with limited experience.

5.9. Some respondents were of the opinion that the examinations should be sufficient, so long as they are designed correctly.

5.10. Others commented that introducing a minimum training period would be a heavy-handed approach and a softer approach, such as improving training opportunities, accessibility, materials, tools etc. would be a better way to ensure candidates are of the expected standard. Other suggestions included the requirement that candidates be signed off by a qualified UK patent attorney before they can sit the final examinations.

5.11. Overall, there was no consensus opinion on minimum training periods that came through in the responses. One respondent comment stated it would be impossible to ensure all trainees will have the same form of training and that, if the review was trying to achieve this, it will disadvantage profession overall due to the risk of reducing standards.

6. Post-Qualification Training

6.1. Litigation Skills Certificate

6.1.1. The call for evidence specifically invited comments on the LSC qualification which newly qualified attorneys have to obtain within three years of entry onto the Register. Of the 47 respondents who made comments, more than half (27) supported getting a litigation skills qualification in some form, with 20 supporting its current format as a compulsory ‘post-registration’ qualification. 12 did not support the qualification being compulsory, with many of those suggesting that the qualification was unnecessary to the practice of most attorneys and anyway did not provide the necessary skills to be able to take on cases without the assistance of someone more experienced, such as a solicitor. A number of respondents suggested alternative skills training which might be more appropriate to all attorneys or which could be non-compulsory add-ons, described in the section ‘Areas for development after qualification’ below. It was also noted that, since the LSC is a compulsory element, its provision should be assessed to ensure that it does not create a barrier to entering the profession.

6.1.2. History of the Litigation Skills Certificate

6.1.2.1. A number of the respondents mentioned that the LSC was introduced in 2012 as a quid pro quo for the profession retaining its rights to litigate and rights of audience before the IPEC and on appeal from the IPO, and its abandonment therefore could not be taken lightly. It was further mentioned that its requirement could provide evidence of higher skills than the European model for qualification, justifying grandfathering in of CPA attorneys to rights for representation in the UPC courts. It was also suggested that it might be possible to rationalise litigation skills qualifications and argue for higher advocacy rights for patent attorneys on the basis of the LSC and the Higher Advocacy Certificate alone (i.e. without needing the Higher Courts Litigation Certificate as well as the Higher Courts Advocacy Certificate), moving towards putting patent attorneys on a similar footing to solicitors.

6.1.3. Pre- or Post-Finals

6.1.3.1. A significant number of the respondents who commented on the LSC expressed the view that the subject area should be examined before qualification if it is sufficiently important to be compulsory after qualification, for example by incorporating the subject matter into FD1 and/or FD4. A number of respondents identified overlap between the Foundation Certificate paper FC2 and the subject matter of the LSC and suggested that the balance of what is examined where should be considered. Others opined that the practical element of the qualification is invaluable, and cannot be replaced by a written examination, with some suggesting that the academic aspects should be incorporated into the existing qualifying examinations, and the practical aspects could be replaced by broader based advocacy training which would be of value not only in the UK patent court, but in other oral proceedings, for example at the EPO.

6.2. Post-Qualification Training

6.2.1. One of the questions asked in the call for evidence was whether there are any other areas of knowledge, understanding or practice for which CPD should be mandatory following admission to the Register. The vast majority of the responses supported the current level of mandatory CPD (20 out of 24). Respondents commonly argued that CPD should not become over-prescriptive because of the great divergence in career paths for individual attorneys and that it is appropriate for individuals to choose which areas within their profession to develop. A small number called for additional compulsory elements, such as compulsory attendance at a webinar (presumably put on by CIPA) to accompany a major change in circumstances, with BREXIT being provided as an example.

6.2.2. One respondent noted that it can be difficult to find clear guidance about how to approach CPD and it would be helpful if all newly qualified attorneys had some training during the first year post-qualification in what CPD is all about, such as attending a lecture at CIPA. It was also suggested that a ‘Guide to best practice of CPD’ could be issued and attorneys could use the guide to monitor their CPD on a self-certification basis. It was also suggested that the current rules are confusing, for example around the difference between a live event and a recording. A review of the rules in light of the recent change in practice might be appropriate. Other suggestions included having a compulsory webinar each year on all core changes in law in the UK and EPC with IPReg producing a list of key cases each year that attorneys are all expected to have read.

6.2.3. A number of alternative approaches to the current system for CPD reporting were suggested, mainly based on CPD practice for other professionals. A couple of respondents suggested monitoring CPD solely on a declaration/self certification basis, not monitoring hours spent performing particular activities, in line with what it was reported solicitors have to do. Another respondent suggested a system similar to that for Chartered Engineers who maintain a portfolio and have to plan their own CPD activities, and also reflect on them and evaluate them against the objective for their learning, but do not have to spend a minimum amount of time on CPD each year. Finally, another suggestion was the use of an online multiple-choice self-test to be performed every year to confirm that an individual is up to date with current law and practice. We do, however, acknowledge that such additional examinations, especially with this frequency, are unlikely to be a popular introduction, and would be difficult to administrate.

6.3. Areas for development after qualification

6.3.1. A number of areas were discussed in the responses in which attorneys should continue to develop post-qualification (though not necessarily added to a list of compulsory CPD activities). ‘Training for mentoring’/’training for the trainers’ was commonly mentioned as being very useful/desirable, both for the aspiring trainer and also for the benefit of their trainees, since newly qualified attorneys who have recently taken the professional examinations commonly then take on the mantle for training the next generation (5 responses). Training for business accounting and management was mentioned as being particularly appropriate post-qualification, along with advocacy skills, IP management and strategy, IP commercialisation and business development skills. In order to recognise an attorney’s increased competence in these additional areas, it was suggested that it might be desirable to introduce ‘certificates’ as add-ons to strengthen the response of qualified attorneys to unregulated providers of these services, rather than make any of them compulsory, so that an attorney’s developing skills can be tailored to their particular career trajectory.

7. Support wanted from CIPA

7.1. A number of respondents suggested that CIPA could provide training in the form of free of charge video-on-demand series of lectures for foundation and advanced topics, with the videos being shorter than the current lectures. It was suggested that this could be in the form of a set of e-learning modules. CIPA is already working on providing a video-on-demand service, in addition, most webinars are now included in the membership fee. In particular, CIPA aims to provide access to all previous webinars as a video-on-demand server.

7.2. In addition, there were some suggestions that CIPA should have greater control or oversight over tutorials and advanced lectures, supervised in-part by the Informals, rather than the current system. It was suggested that CIPA should aim to provide support for candidates training for both the UK and European examinations.

7.3. Additionally, there was a suggestion of the provision of webinars providing a summary of all of the core changes to the law for both the UK law and the EPC.

7.4. One respondent suggested that CIPA provide a course or a guidebook which gives new entrants to the profession tuition relating to the very basics of the contents of applications, the various IPOs, and basic types of objections one might receive therefrom. Another suggested that CIPA should run JDD-style courses to give finals candidates further guidance on the requirements to pass the exams.

7.5. Finally, it was suggested that CIPA could define a common training framework or guideline for firms to sign up to which provides a set of minimum standards when it comes to the training provisions provided to trainees.

8. Conclusions and recommendations

8.1. The issues raised by the responses were discussed to see if a consensus position could be found.

8.2. We consider that more information should be given to those who are entering the profession so that they understand what they are getting into. In this respect, we recommend that:

• CIPA should provide better information on its website about what is required to enter the profession and to progress in the profession and keep such information under review;
• CIPA should provide such information to careers services;
• the PEB should make its website easier to navigate;
• IPReg should support registrants in making available to any possible recruit details of the training scheme which the recruit will follow, preferably in the form of a training contract; and
• The Informals should continue, with the support of CIPA, its efforts to assist possible recruits in understanding such information.

8.3. We considered that candidates should have available as many ways of being trained as possible, so as to enable recruits from any background to be trained, but that all ways of being trained should lead to the candidate being able to meet the standard set out in Chapter 1 at each level of qualification. In order for the same standard to be reached by all candidates, we recommend that:

• that a common examination should be passed by all candidates at each stage.

This avoids any problems which may arise from any differences between the examinations presently available to test the candidates for fitness to move onto the FD examinations. This should allow any provider to provide training, in whatever format the provider wishes to offer. The cost of providing the training should be able to be reduced as the requirement for setting and marking examinations would be removed from the training providers. There would be no need to accredit the providers as market forces would operate to eliminate unsatisfactory providers.

8.4. It is envisaged that providers could use any of the formats currently in use but that it would be possible for other providers to come into the market with different formats. The digital revolution would allow providers to use face-to-face and/or digital teaching and different training schedules. The providers should be able to adapt the teaching to the circumstances of each candidate and his or her employer.

8.5. We also recommend that:

• CIPA should continue to provide train the trainer and other support for those providing training;
• IPReg should accredit the syllabi for the FC and FD examinations and the PEB for setting the FC and FD examinations;
• IPReg should require all candidates to take the PEB FC and FD examinations;
• Any provider should be allowed to provide training for the FC and FD examinations without requiring any accreditation; and
• CIPA and the Informals should co-operate to determine what formats of training are lacking and encourage providers to provide such training.

8.6. On the matter of a minimum training period, we were of the opinion that there was no need to impose such a period. It was felt that the requirement of IPReg for two years’ service under a registrant or four years’ service otherwise, as well as having passed the FD examinations, was sufficient. The candidates in most cases also have a minimum training period imposed on them by the EQE and so another, possibly different, training period, would be confusing.

8.7. However, it was considered that there is too much pressure on candidates to take the examinations too early to improve career prospects and increase salary. This can be counterproductive as it can induce candidates to take examinations for which they are not properly prepared and then fail. It has been shown that the chances of passing a failed paper, especially FD4, tend to go down. It was felt that not enough candidates use the modular nature of the FD examinations to their advantage. We therefore recommend that:

• CIPA and IPReg should encourage its members and registrants to adopt career progression systems which are not solely linked to examination success and training systems which encourage candidates to make use of the modular system so that they take any particular examination only when they appear to be ready to take that examination.

8.8. On the LSC, we saw that there are advantages in any candidate having the skills taught by the course, not only for UK litigation but also for opposition proceedings before the EPO and litigation in other jurisdictions. However, it was considered that much of the ground covered in the LSC is black-letter law, which should be covered in the FC syllabus and examination, and advising on litigation situations, which should be covered by the FD1 syllabus and examination. Thus, we recommend that:

• the LSC course should be cut down to the practical matters of advocacy and the preparation for advocacy; and
• the black-letter law content of the LSC should be transferred to the FC syllabus and examination, the application of the black-letter law in giving written advice to a client should be transferred to the FD1 syllabus and examination and the practical aspects of the course should be retained in a reduced assessed LSC.
  Such practical matters, in our view, cannot be examined in a written examination.

8.9. We consider that there should be a CPD requirement for all registrants and it should be compulsory to report on meeting the CPD requirement to IPReg. We consider that the onus for carrying out CPD should be on each registrant individually and that each registrant should be prepared to provide details of her or his CPD to IPReg on a random basis.

8.10. We also consider that there should be opportunities for registrants to expand their areas of expertise but these should generally be voluntary. We welcome CIPA’s decision to make all its webinars more widely available and to expand the scope of the webinars. IPReg and CIPA should also encourage other providers to offer training in non-examined areas.

8.11. There are three areas, trade marks, practical litigation skills and higher court advocacy, where it was questioned whether there should be assessed training.

8.12. As regards trade marks, it used to be possible to become a dual-qualified attorney by an on-the-job examination route. However, at present, it is only possible to become a registered trade mark attorney by following a university course. It is felt that this reduces access to the trade mark profession. Since entry on the trade mark register is the responsibility of IPReg, it is considered that any training for entry onto the register should be assessed by examination. We therefore recommend that:

• IPReg, CIPA and CITMA should investigate whether there should be a route to registration as a trade mark attorney other than via a university course, for instance by an advanced examination at the same level of the FD examinations or by following an assessed training course.

8.13. As regards practical litigation skills, it is considered that it should be compulsory for all registered patent attorneys to complete an assessed course on this subject. However, this course should be limited to the practical aspects of litigation skills and that the other parts of the present course should be incorporated into the FC and FD syllabi and examinations (see above).

8.14. As regards higher court advocacy, we consider that the training for this subject should remain as it is, with a requirement to follow an assessed training course before the grant of a certificate.