IRC: #techbytes @ Techrights IRC Network: Sunday, October 10, 2021

*Topic for #techbytes is: Welcome to the official channel of the TechBytes Audiocast

*Topic for #techbytes set by schestowitz!~roy@haii6za73zabc.irc at Tue Jun 1 20:21:34 2021

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https://ipkitten.blogspot.com/2021/10/breaking-mercer-review-on-uk-patent.html?showComment=1633702038530

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schestowitz

-TechBytesBot/#techbytes-ipkitten.blogspot.com | BREAKING: Mercer Review on UK patent attorney exams released - The IPKat

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AnonymousFriday, 8 October 2021 at 14:11:00 BST

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Absolutely classic- despite being 2.5 years in the making it gets released the Friday before exam week. Echoes of when it was announced the 2018 paper had some "issues" the week before EQEs. When you've delayed that length of time surely a few more days makes sense to give candidates some breathing space during exams?

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AnonymousFriday, 8 October 2021 at 14:14:00 BST

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I'm glad Mercer has finally come out though I doubt nothing will change.

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They have missed a trick though with online exams. The IT online move this year and requirements appear to be even more complex and once again, all burden is on the candidates (for everything). Why is that more and more burden is placed on candidates taking exams. It has taken a significant amount of time away from preparations. Not to mention the 2 mock exams because they screwed up the first one.

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Replies

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AnonymousFriday, 8 October 2021 at 15:02:00 BST

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I couldn't agree with this more - I think this year's online exam is much more complicated for candidates and employers and once again, it places much more emphasis and burden on candidates. The goal=post seemed to have significantly shifted last year. I would have preferred the much simpler approach last year.

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Mercer could address why the burden is shifting more over to candidates. They should not be worrying about set up and IT requirements but instead focus on preparing for the exams. I know candidates at my firm had to buy new printers, some of them buying new phones, speakers etc.. as they are not compatible with the current system. It also adds a lot of pressure on the firms too - no one can go into work that week whilst candidates take their exams.

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AnonymousFriday, 8 October 2021 at 15:36:00 BST

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Hi Anon, don't forget that the Mercer Review is reporting on the points raised by those that responded to the call for action. The fact the burden is shifting over to candidates wasn't raised, so it can't be addressed.

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In addition, this is the PEB and IPReg's duty to make sure the exams are adequate - not CIPA (of which the Mercer Review was commissioned and formed).

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AnonymousSaturday, 9 October 2021 at 08:02:00 BST

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Maybe this needs to be looked at because I completely agree that there is no too much on the shoulder of candidates. Last year was a fair balance. This year, things seemed to have gotten more complex for them.

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AnonymousFriday, 8 October 2021 at 14:15:00 BST

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It will take another 10 years to implement any recommendations. Its ridiculous how long this took.

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AnonymousFriday, 8 October 2021 at 14:23:00 BST

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Still doesn't really address the issue of the unfit for purpose examination of FD4 - What's the point of it? It is far better and realistic as a coursework assessment. No client will pay you or indeed take your advice to request "injunctions" or sue others/stop their commercial activities based on 4 hours advice on infringement and validity. There are so many other matters in the commercial world that influences a company's decision to sue or not,

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and most of this is relevant to the actual infringement or validity assessment.

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AnonymousFriday, 8 October 2021 at 14:28:00 BST

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Some suggestions seems plausible like standardising trainees learning but in practice, it is very difficult to achieve this. The fundamentals of why exams are so time pressured especially in FD4 and its relevance could do with more addressing but as I haven't fully read the document, I shall reserve judgement.

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I would have thought a more modular approach throughout the year like the EQEs is moving towards would make more sense for the modern profession and the new way of working life. Having a set of exams once a year is really old-fashioned and out of date.

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AnonymousFriday, 8 October 2021 at 14:37:00 BST

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I agree that exams should focus on simple basic standards for attorneys and that the purpose of the exam is not to provide more and more complicated subject matter or clever obscure pieces of law/area. Unfortunately, the exams have gotten more complicated and much harder to digest and understand as years gone by. Take FD4 for example, the amount of materials required to analyse, and candidates to understand complex subject matter in infringement and

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novelty sections is too much. It is no longer testing basics. There is far too much to read and analyse in the time given. It is also very repetitive. Claims should be shorter allowing candidates more time to actually reach their judgements + provide reasons to do so rather than rushing to the finish line.

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FD2 is another example. Testing simple drafting skills should not require candidates to be confused about the subject matter. They should understand it and draft a simple claim that covers the invention but recent exams have made it very complex etc...

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AnonymousFriday, 8 October 2021 at 14:40:00 BST

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is there anything in the Mercer report to justify the eye watering £500 fees per final exam. This is a barrier, especially to those who have to pay from their own pockets as their firms no longer supports them. I cannot see why this cost is so high especially if we are moving towards computer based exams and all the burden (as someone pointed out earlier) is now placed on candidates to get their equipment correct.

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AnonymousFriday, 8 October 2021 at 14:48:00 BST

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I am no fan of FD4. There is one recommendation that gives me hope:

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"FD4 should be limited to requiring the candidates to demonstrate that they can construe a set of claims according to the case law in the UK, evaluate prior art, determine whether the claims as construed are novel and inventive over that prior art and determine whether the activities of a potential infringer are infringing acts under UK law and should not require detailed advice on points not relevant to the main topics"

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I might be overly optimistic, but it sounds like they want a more focused exam. The reference to UK law and construction is interesting. If this means construction requires you to apply UK law, this is much better than the current format. E.g. 2016 paper lightweight meant whatever the examiners said it meant (even using client letter to support their view!!??), no need to consider Catnic or any pesky authority on the matter

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AnonymousFriday, 8 October 2021 at 15:07:00 BST

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FD4 exam is especially over-complicated in recent years and more materials keeps getting added to it. They need to reduce its complexity. You are required to do far too much in the available time. Construction, infringement, novelty, inventive step, sufficiency, amendments, advice. There is far too much reading and analysing to do. They could make the documents more easily digestible by labelling the figures for you give the time. They want a

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detailed inventive step argumentation but provide little time for candidates to reach that section.

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AnonymousFriday, 8 October 2021 at 15:07:00 BST

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For 2.5 years of consideration, this report seems quite vague and does not seem to offer much in the way of concrete next steps. Yes, we all agree the exams need changing. How will this happen? By when? Will candidates wait another 2.5 years?

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CynicFriday, 8 October 2021 at 15:22:00 BST

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I don't mean to disparage the huge amount of work that has gone into reviewing and collating all of the responses to the consultation, but... *that's it?*

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Remember that what sparked all of this was an increasing volume of complaints about FD4 (P6) in particular. With regard to overhauling this most controversial of the Finals papers, all the report recommends is that:

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potential infringer are infringing acts under UK law and should not require detailed advice on points not relevant to the main topics."

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This says absolutely nothing about the key concerns shared by many candidates and trainers, namely the sheer volume of material to consider, the proliferation of multiple prior art documents / multiple embodiments / multiple potential infringements that have been seen more and more frequently in recent years, and the time pressure imposed on candidates as a result.

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One could make a reasonable case that even the most egregiously lengthy FD4/P6 papers of recent years did not stray beyond the remit of construing claims, evaluating prior art, assessing novelty and inventive step, and determining whether or not any infringing acts had occurred. That was never seriously in doubt. The review's recommendation in this respect therefore seems to entirely miss the point.

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Based on this, I cannot share the optimism of Anon at 14:48 (above), even if there are token nods to "examination creep" elsewhere in the report, given that "examination creep" appears to be a term which is linked only with duplication of material across multiple papers rather than being focused on the central substance and methodology of the most controversial papers.

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As someone who sat and passed all of the UK papers almost a decade ago, and who will therefore not be directly impacted by any actions taken or not taken in response to the report, I have to say that this feels like a big missed opportunity to address the central issue that has exercised so many people over the years, even if some of the other recommendations regarding attempts to standardise the "non-Finals" aspects of training more generally are

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to be welcomed.

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AnonymousFriday, 8 October 2021 at 15:31:00 BST

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I too agree with Cynic. There is far too little detail on FD4. The biggest problem with FD4 as seen over recent years is the sheer volume of materials to analyse and read. Its far too much and then to be expected to complete each section in detail. Its wholly unrealistic!

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Please reconsider FD4. Its not fit for purpose and I really don't see how these recommendations would change anything about FD4.

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AnonymousFriday, 8 October 2021 at 16:24:00 BST

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Good suggestion about a pathway for qualifying as a trademark attorney. I got completely done over by picking a firm that did foundations.

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Good idea to have a common set of foundation exams no matter the training route. Will be great to see all the firms cry when they realise the pass rate for 5 foundations (i.e. becoming part qualified as per QM) in 1 year is around 20%. Or maybe they will rejoice - lower wages for longer.

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Anyway, big power grab by the PEB (all foundations exams -> controlled by PEB, Litigation skills -> more of it to be controlled by PEB...). Maybe it is a good time to question what proper educational experience members of the PEB actually have....?

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AnonymousFriday, 8 October 2021 at 20:49:00 BST

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Given how much in these exams depends on exam technique, not providing the marking schemes would take away one of the few tools candidates have in preparation for these exams. How can you give a "holistic" answer when you do not have sufficient information about what is required of you?

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AnonymousSaturday, 9 October 2021 at 21:57:00 BST

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I'm confused how getting rid of mark schemes would be good for students, especially for those who can't afford to go on courses. That is crucial learning material being taken away.

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It seems bizarre how removing mark schemes can improve training. How can candidates revise if they don't know what they have practice is right or wrong. This is one of the biggest issues of FD4 - nobody knows what is deemed the perfect answer. No one knows what is expected of them.

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If you are going to get rid of mark schemes for exams, why did they not consider coursework route or university route?

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AnonymousSaturday, 9 October 2021 at 22:00:00 BST

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PEB exams have been a tool used by many firms as an excuse to suppress wages.

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The changes recommended here would not reallt help candidates training, experience and their pay packages. One point i do agree with is that the exams have become too long and complex. Apart from that, I really don't see much will change from this review.

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https://ipkitten.blogspot.com/2021/10/guest-post-monsantos-conspicuous.html?showComment=1633677920080

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-TechBytesBot/#techbytes-ipkitten.blogspot.com | [Guest Post] Monsanto’s conspicuous African cotton patent - The IPKat

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do not trust the seed businessFriday, 8 October 2021 at 08:25:00 BST

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I fear that the statement "Firms like Monsanto might be able – given the existence of the TRIPs Agreement and the current state of global patent law – to charge African farmers for their technology. But they cannot be allowed to do so twice." might not withhold firms like Monsanto to claim license fees more than twice.

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They will find ways to do so, for instance by introducing a gene which will render the seeds sterile and will not allow more than once to be used.

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That the US embassies in Africa support firms like Monsanto is no surprise.

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When you know that Syngenta, another big player in the agribusiness is actually Chinese, Chinese embassies will also play a role in the future.

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https://ipkitten.blogspot.com/2021/10/guestpost-opinion-skirting-frand.html?showComment=1633792697089

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-TechBytesBot/#techbytes-ipkitten.blogspot.com | [GuestPost] Opinion: Skirting FRAND requirements under the guise of promoting innovation and efficiency (Part II) - The IPKat

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Thanks for providing such a well written couple of articles. One wonders how the court of the Eastern District of Texas will react when WilmerHale present them in the recently filed complaint of Ericsson v. Apple.

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Merpel McKittenSaturday, 9 October 2021 at 16:18:00 BST

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Thank you, Kant, for the comment. Would be interested to hear your views on the substantive issues. Looking forward to the debate.

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https://ipkitten.blogspot.com/2021/10/does-court-of-appeals-21-split-in.html?showComment=1633614358340

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-TechBytesBot/#techbytes-ipkitten.blogspot.com | Does the Court of Appeal's 2:1 split in Thaler underline the need for legislative review? - The IPKat

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"While the answer to the question of whether A orB owns the copyright in a digital photo is certainly correct under current copyright law, it was not always so. Under the 1956 Copyright Act,in the absence of an agreement to the contrary, copyright in a photograph belonged to the person who owned the film and not to the person who took the photograph. Thus under the previous copyright law, posession of the pre-existing tangible (film) did result in

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posession of the intangible (copyright in a photograph). This was a consequence of an explicit provision of statute law rather than common law."

https://nitter.eu/bap47/status/1447156454839005188

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schestowitz

-TechBytesBot/#techbytes-nitter.eu | Barry Phillips (@bap47): "Free or inexpensive healthcare for all should be top of the aims for all administrations on this planet. Enormous challenge but a marker for humanity. Shame on the Democrats for stepping back, if indeed, that’s what they have done. @DemGovs" | nitter

https://twitter.com/lfastenberg/status/1447146459137257472

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-TechBytesBot/#techbytes-@lfastenberg: This is true https://t.co/DxZXsmDNck

-TechBytesBot/#techbytes-@schestowitz: Today my dad told me he spoke to a retired journalist, who had told him that over the past 15 years #journalism bas… https://t.co/kszef3rvPT

https://nitter.eu/VictorEkari/status/1447144718534680578

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-TechBytesBot/#techbytes-nitter.eu | Ekari Victor (@VictorEkari): "@schestowitz do you have an opinion to YouTube censorship? The solution to this problem is web3.0 this platform will give us zero censorship through @3speakonline . The only solution is a decentralized platform to stop the complaint. Join now 😁" | nitter

https://nitter.eu/GasTSOua/status/1447130558438518787

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-TechBytesBot/#techbytes-nitter.eu | Gas TSO of Ukraine (@GasTSOua): "The weaponization of energy comes in many forms. The manufactured gas market crunch is the carpet bombing that tests the adversary’s will to fight. And what we can expect next is a precision strike against Ukraine in the coming months. https://www.euractiv.com/section/energy/opinion/the-weaponisation-of-nord-stream-2-has-already-started/" | nitter

https://twitter.com/BritishTribune/status/1447120092144230403

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-TechBytesBot/#techbytes-@BritishTribune: @schestowitz Europe Reacts to Biden’s Afghanistan “Miscalculation” (xbne) https://t.co/dPcoA88q6Q

-TechBytesBot/#techbytes--> thebritishtribune.com | Europe Reacts to Biden's Afghanistan "Miscalculation" - thebritishtribune

https://twitter.com/iridesce57/status/1446993909033443329

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-TechBytesBot/#techbytes-@iridesce57: @schestowitz https://t.co/7HaC4ij7Ar

-TechBytesBot/#techbytes--> slate.com | Facebook banned me for life because I created the tool Unfollow Everything.

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schestowitz

Save water, help with the refill

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We’d like to say a huge thank you for all your help over the last month.

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The recent rainfall and huge efforts by your community to use less water at home means that Lake District reservoir levels have gone up by nearly 10% this week.

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Although this is brilliant news, levels are still much lower than usual for this time of year at 39%, rather than nearer to 70%.

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Reservoir refill

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As we come from the driest 6 months on record, followed by a month’s worth of rainfall in just one week in parts of the Lake District, Haweswater and Thirlmere reservoirs will still take some time to refill, so we’d really appreciate your continued support in saving water at home, whatever the weather. Click the link below to check the levels of the reservoirs.

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