The Planning Technique I Used: Part Two - The ‘IRAC’ Formula
How do you ensure your answer has complete coverage?
All of us who join the patent profession come from a STEM background and then transition into the world of law. In our academic study, we are often posed with questions having a clearly derivable and definable answer. You’re given a quadratic equation and you know to apply the formula, showing each step of its application and then arriving at the solution for x. We become well versed in showing our working, knowing that the number at the end of an equation is only part of demonstrating a mastery thereof. How many of us go to such lengths when answering legal questions?
Leaving the exam aside, such an approach in your practice I think would be a nice way to answer the questions posed of you by your clients, your colleagues, and your boss. Whilst it is said that FD1 does not test rote memorisation and repitition of the law, it would seem to me that the very nature of a closed book exam means that if you cannot recite key bits then you will be unable to apply it confidently, accurately, and effectively to a given situation, especially where the situation is not crystal clear.
To be honest, I have no idea if I was showing my working effectively in my first two attempts - I didn’t pass so I guess what I was showing wasn’t right, or wasn’t enough.
Last summer, my tutor introduced to me the idea of setting out an answer more procedurally. The eagle-eyed amongst you will have noticed in my previous blogpost that one of my planning sheets had the repeating letters I, R, A, and C therein. For those of you who are unfamiliar, I was applying the ‘IRAC’ formula as suggested by my mentor.
Issue, Relevant Law, Application, Conclusion
The IRAC formula is an attempt to provide a well rounded answer to any legal question. It is very formulaic, but ensures that you are demonstrating that you’ve spotted the issue, know the relevant law, are able to apply it and to form a reasonable conclusion. You may look at it and say ‘well yeah, I do all of those things’. Thinking back to my failed attempts I may have thought about all four steps, but I certainly wasn’t putting them all down consistently in my answer. In other words, I wasn’t showing my working. In my view, applying the IRAC formula to your answer allows you to consistently ensure that you are giving a well rounded answer where you’re showing all of your working (and thus is more likely to attract all of the marks). Using the IRAC formula holds you accountable as you write your plan and your answer. By ensuring they have at least one I, R, A, and C, you ensure that each aspect of a good answer is covered off. Though we’re all well accustomed to ‘therefore’, it can be hard to prompt yourself to do so throughout the examination.
Therefore, I urge you to try using the IRAC formula. Let me lay it out with an example - I’d ask that you do this without peeking at the explanation below.
Take the following situation (in practice, or in the exam):
‘Today’s date is the 1st of April 2019. You receive the following e-mail:
“I filed a GB patent application on the 3rd of January 2018 with no claim to priority. When is the declaration of inventorship due?" Thanks, Jason Dymes”
Advise your client’.
Ignoring what I’ve said about the IRAC formula. What would your answer be? Go on, write it down. No peeking.
Once you have written your answer, scroll past Loki to see what I think and where your answer sits.
Terrible Answer
The declaration of inventorship is due 16 months from the priority date.
This answer is correct, but it’s still terrible. It demonstrates only the R of the IRAC formula. It shows that you know the law, but you do not apply it to the situation, and you’re forcing your client to calculate it based on your advice. The I is implicit.
Slightly Less Terrible Answer
The declaration of inventorship is due on the 3rd of May 2019.
This is slightly better. You’ve at least demonstrated implicitly that you know the law, and you aren’t forcing your client to do the mental work for you, as you’ve given the conclusion. The I is implicit.
Average Answer
The declaration of inventorship is due 16 months from the priority date. Therefore, it is due on the 3rd of May 2019.
This is self-evidently better - you demonstrate that you know the law, and you’ve provided a conclusion for your client. The I is implicit.
Better Answer
When is the declaration of inventorship due?
The declaration of inventorship is due 16 months from the priority date. In this instance, the GB application was filed without a claim to priority. As such, the filing date is the priority date. 16 months after the 3rd of January 2018 is the 3rd of May 2019. Therefore, the declaration of inventorship is due on the 3rd of May 2019.
This is a very well explained answer, it shows the issue as been identified, it states the relevant law in whole. It applies the law to the situation and provides the correct conclusion, but I think we can do better!
Best Answer - the IRAC(A?) Formula
When is the declaration of inventorship due? (I)
The declaration of inventorship is due 16 months from the priority date. (R) In this instance, the GB application was filed without a claim to priority. (A) As such, the filing date is the priority date. (A) 16 months after the 3rd of January 2018 is the 3rd of May 2019. (A) Therefore, the declaration of inventorship is due on the 3rd of May 2019. (C) The deadline is therefore a month away and so we should check if the client needs any assistance with inventorship determination and the filing of form 7. (A?) There is no fee for filing the form 7 (A?).
I think this is the best answer. It demonstrates all of IRAC, but in addition it shows that we are client conscious by using A? at the end.
What is (A?)
In the ‘best’ answer, I’ve used an extra A at the end. I added this because often in the mark schemes there will be an action or some other information that could gain marks. Therefore, the A stands for ‘Anything Else?’. It won’t always apply, but its worth pausing once you conclude and seeing if there’s anything else that is clearly relevant that you can add. Actions for the client, and reasons for those actions, or further things to check.
Further Notes
Please note that an answer might not always be a straight forward ‘IRAC(A)?’ Sometimes, there will be several points of relevant law to discuss, or there’ll be lots of information to apply the law to. You’ll see in my previous blogpost that often my plan would have IRRAAACCC or IRRAC or other things. The point is that you should aim to have one of each.
Another thing to note, is that the IRAC formula does not work for every type of question. Sometimes questions are very timeline heavy - they’ll involve multiple applications with dates criss-crossing and your job will be to figure out the status or validity or prior art situation etc. I personally found that it didn’t work for those types of questions quite as well.
Therefore, please start practicing the IRAC(A?) formula and getting to grips with it and how it works. If you’re scoring in the 40s in FD1 then just think how easy it might of been to pass if you’d applied the IRAC(A?) formula and picked up those extra marks you missed.
Summing Up
Begin using the IRAC(A?) formula in practice and in the Coffee Table Questions to get used to how to apply it. In addition, you can start to combine the planning techniques disclosed so far and hopefully you’ll see the effectiveness of the technique on your answers or past paper attempts. You have to get to grips with this early on in your revision cycle so that you build confidence in the techniques and have worked out any niggles or things that aren’t working for you.
The hardest part of writing an FD1 answer is not the writing down, but thinking through the legal situation in front of you. This is why diving into writing the answer and dedicating a short amount of time to planning is not optimal.
Taking half of the allotted time to plan allows you the time to do the thinking part without distraction. Using the 6-box method gives you a well balanced answer, and using the IRAC(A?) formula ensures that you think through all of the aspects of the situation, and put it down on paper.
Even though curiosity killed the cat, I’d be very interested if you did the above exercise in earnest where abouts your answer fell. Was it Terrible, Slightly Less Terrible, Average, Better, or Best? Leave a comment if you feel inclined!
