2.How should I prepare to sit FD4?

How should I prepare to sit FD4?

Coverage

The preliminary steps that you need to take before you attempt the examination will be discussed.

After you have read this chapter you should be aware of:

1. The real challenges involved in FD4.

2. The need to have the necessary skills.

3.The need to be able to identify and address relevant issues.

4.The need for time control.

5. The need to practice.

As we have seen above, FD4 is a challenging examination, which historically has a very low pass rate. The list of Pass Rates on the Patent Examination Board website shows that in the ten years up to 2014 the pass rate has been between 36.45% (2012) and 55.69% (2007) of the candidates. So even in the best year more than 40% of the candidates failed. Even when one takes into account the fact that some people sit the examination year after year, with no real prospect of passing, the pass rate is low. This might be considered to be surprising when one understands that all of the candidates are graduates, and many have been educated to PhD level. The candidates for the examination cannot be considered to be inadequate in any way, but it seems that a significant proportion of them are unable to rise to the challenges presented by Infringement and Validity.

Possibly the greatest difficulty is that this examination is very different from any of the previous examinations that you have sat before, in that there is no single right answer to the paper. This may be the first paper that you have ever sat where ‘showing your workings’ is much more important than reaching any specific ‘right’ conclusion or ‘answer’ to the problem set by the examiner.

The low pass rate has been a cause for concern for many years, and the PEB has published ‘Guidelines’ to be of assistance to candidates. There has also been a review performed at the behest of IPReg by Middlesex University that was published on 6 March 2017.

The PEB ‘Guidelines’ for the FD4 2015 examination are reproduced on pages 14-17 [candidates should check the PEB website for the most up to date guidelines]: FD4 is an examination that requires some knowledge, but is really an examination that tests skills. The paper is always a race against time. The examination does require you to be able to assimilate information quickly, to marshal that information, and then to write a detailed but terse answer. You must be able to read ‘aggressively’. You are not just reading in a kind I-amwilling-to-understand-what-you-are trying-to-say manner, but instead, you should be reading in a what-could-these-words-possibly-mean manner. You are looking for clues, which may be very small clues, just as if you were a detective. All sorts of small oddities have been included in the paper by the examiners, and you have to find them. Maybe this is the ‘meticulous verbal analysis’ that we have been invited to ‘eschew’ in judicial comment in the past, (see Lord Diplock in the Catnic case), but reading in this way may help you readily to identify the points that you will need to discuss to pass FD4.

The examination is designed so that there is enough time to deal with the essential points, but not enough time to waffle, and not enough time to deal at length with irrelevant points.

To achieve a good mark, the answer should include passages designed to meet all of the sections of the marking schedule. When attempting the FD4 paper you may find it easy to gain the first marks available in each section, but somewhat harder to gain the rest of the marks, demonstrating the law of diminishing returns. Consequently, at least attempting all sections would seem to be a sensible plan, even if some sections are incomplete. If you are sweeping a dusty room, and you have to sweep up the maximum amount of dust in a short time you will probably do better if you roughly sweep the whole area, rather than if you sweep only a part of it to perfection. It is the same with FD4 – if you take the time to do one section absolutely perfectly, you will probably not have left enough time to score a pass mark on the remaining sections. All of this requires good time control, and that can only be achieved with practice.

While doing past papers without any time constraint may be beneficial in the beginning, the need for practice under examination conditions cannot be over-emphasised. Doing a past paper in one two-hour and one three-hour session is not the same as doing it under examination conditions, as there will be time to think and analyse between the sessions. It is by doing past papers within the five hours that you may realise that, for example, you need to practise handwriting, which is something that is not done frequently, in these days of computers and digital dictation. Also by practising on past papers you will be able to assess the problems of timing, and learn the importance of being able to deal with a complex point succinctly, while still covering the major features of the argument. Also you will become familiar with the sort of points that the examiners put into the questions, so that you will be able to identify the points that need discussion when you sit the paper for real.

FD4 has many similarities to the day-to-day work of an attorney. However, in FD4 the ultimate ‘client’ or consumer of your work product is the examiner. You must provide what this ‘client’ wants, and to do that you must be able to put yourself mentally in his/her shoes. The examiner is an attorney of some years post-qualifying experience, and almost certainly holds down a good job in industry or private practice, with expectations that a goodly number of chargeable hours are scored each month.

You can help the examiners (and help them to award you marks) by entering into the spirit

of the examination, overlooking any technical inconsistencies or absurdities (you try writing a scenario for FD4, and see how difficult it is!) and by writing as clearly as possible, so that the examiners do not have to struggle to read your script. Most handwriting can be read more easily if it is double spaced. Also, you can help the examiners by setting out your answer as seven sections corresponding to the seven sections of the marking schedule.

Your paper will be marked by two examiners independently. They then compare the marks awarded, and if there is a discrepancy they will discuss the matter and agree a mark. They will be looking closely at candidates who have marks in the high 40s, to see if they can justify a higher mark. Any scripts where the mark remains in the high 40s will be looked at again by a member of the Patent Examination Board. The examiners really do try hard to ensure that any candidate who has written a script that justifies a pass is actually given a pass.

Being a patent attorney is being part of a service industry, and if you are in a service industry you must be able to work out what the client wants and then be able to provide it. In FD4 it is just the same, but you must understand that the examiner is the client!

Remember, however, that when you are construing, or determining infringement or validity you should be dispassionate, and you should reach the same conclusion regardless of whether your client is the patentee or the infringer. Your client needs to know the situation as it really is. If there are arguments that one side or the other could run, they may be outlined, but you must try to reach a ‘fair’ conclusion, rather than siding with your client while preparing an opinion. It is in the memorandum of advice that you can put forward arguments that specifically support your client.

Finally, it cannot be over-emphasised that to pass FD4 you will need the appropriate set of skills, and you will only obtain them by practice, and the most valuable practice is practice under examination conditions.