Journal

Chapter 4 – Governance

Mercer Review: Chapter 4 – Governance

1. Introduction

1.1. The Mercer Review Call for Evidence asked a number of questions regarding the administration of training and assessing UK patent attorneys:

• Q1a) Is the relationship between CIPA, IPReg and the PEB appropriate for the administration of professional examinations?
• Q1b) Do you have any comments about the administration of the PEB examinations?

2. Methodology

2.1. This sub-group was tasked with reviewing the responses to these questions. More generally, we considered the roles of CIPA, IPReg and the PEB and whether any changes should be made.

3. The relationship between CIPA, the PEB and IPReg

3.1. There was evidence that the roles of CIPA, IPReg and the PEB are not fully understood. Respondents were generally not aware that the PEB operates independently of CIPA. Whilst the PEB was established as a Committee of CIPA, IPReg required the PEB to have independent governance and financial control. The PEB operates from the CIPA office and its staff are employed by CIPA. The recent move to electronic examinations as a result of the pandemic has reinforced this, with the profession generally viewing the PEB and CIPA as one and the same.

3.2. Where the relationship is understood, this is mainly because the respondents were more closely involved in the work of the PEB or CIPA. Although the independence of the PEB from CIPA was understood, respondents questioned why this separation was necessary. This was amplified by questions about the extent to which the PEB is truly independent of CIPA and observations about the extent to which CIPA underwrites the financial stability of the PEB. Questions were also raised about the potential additional costs for candidates of the governance structure of the PEB.

3.3. Observations were made about other legal professional examinations, most notably the examinations taken by legal executives, who fall within the scope of the Legal Services Act (LSA). It was noted that the Chartered Institute of Legal Executives (CILEx), the professional body for legal executives and the Approved Regulator under the LSA, sets and administers examinations directly. Respondents questioned why the PEB needed to demonstrate independence from CIPA if that was not the case for CILEx.

3.4. A number of respondents questioned the structure of the PEB and the need for a mixture of lay and professional members on the PEB. Whilst there was no consensus on how the PEB should be structured, respondents with a closer knowledge of the PEB suggested that the complexity of the PEB’s Governance Board and governance arrangements are a factor of the requirement for the PEB to demonstrate independence from CIPA.

3.5. On the subject of lay representation on the PEB, there was a consensus that bringing in examination and assessment expertise from outside the profession was a good thing. Some respondents questioned if the use of lay members in the independent governance of the PEB was the most effective use of time, as the PEB also employed other external consultants to deliver operational activities and CIPA employs a specialist Head of Qualifications to support the working of the PEB.

3.6. Observations were made about the openness and transparency of the PEB, particularly in relation to the marking of examination scripts and appeals. Respondents questioned the PEB’s approach to dealing with complaints and controversies and the PEB’s ability to communicate with candidates and employers. Some respondents suggested that the PEB’s issues with communication stem from the separation from CIPA.

3.7. The governance and financial separation of the PEB from CIPA comes from a time when independence was a constant feature of discussions between CIPA and IPReg, to ensure that CIPA did not carry out any regulatory activities in its role as a representative body. Perhaps the key question here is the extent to which the administration of professional examinations is a regulatory activity. The accreditation and supervision of an examining body clearly is a regulatory activity but, as is demonstrated in the CILEx model, professional examinations can be delivered by a representative body under the supervision of the regulatory body.

4. Conclusions and recommendations

4.1. In light of the above, we recommend that:

• IPReg should review, with CIPA, the requirement for the PEB to be independent of CIPA in terms of its governance and financial control.

The review should include the extent to which the requirement for the PEB to be independent contributes to the financial viability of the UK patent attorney qualifying examinations and perceptions of a lack of transparency or openness. The review should evaluate other models, such as the professional examinations for legal executives, when considering what, if any, improvement could be made.

4.2. We also recommend that:

• IPReg should create a set of occupational standards for patent attorneys.

The occupational standards will provide the framework for the establishment of the syllabus for trainee patent attorneys, identifying what knowledge and skills need to be acquired and assessed. The occupational standards can form the basis for the accreditation of examining bodies and the guidance of training providers such as universities. This should be more developed and detailed than the existing IPReg Competency Framework.

4.3. With the establishment of a set of occupational standards, and for the reasons given above, IPReg should consider requiring all trainees to pass a common set of examinations, regardless of the training route undertaken. Where trainees undertake university courses, as is often the case at foundation level, the trainees should sit the relevant examination papers to ensure that the occupational standards have been met. Occupational standards will open up the market to other training providers, who may provide courses or other types of learning such as remote learning, to prepare trainees for examination.

4.4. We also recommend that:

• IPReg should test the agility of the existing examination system, to ensure that it can be responsive to a rapid change in the skills and knowledge required by the patent attorney profession.

For example, the pandemic has significantly accelerated to move towards videoconferencing for proceedings before the EPO and other bodies. Patent attorneys are addressing this through CPD and future patent attorneys will need to have this incorporated into initial training and assessment.