In pursuit of patent quality (and reflections on reification).

Author:Port, Kenneth L.
 
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  1. Introduction II. Requirements to become a Patent Attorney in the United States A. History of the American Patent Bar B. Data on Entry C. Exit D. Current Requirements for Entry 1. Category A: Bachelor's Degree in a Recognized Technical Subject 2. Category B: Bachelor's Degree in Another Subject 3. Category C: Practical Engineering or Scientific Experience III. Requirements in other countries A. Japan B. Canada C. UK D. France E. Germany F. Conclusions on Comparison IV. Consequences of Having Fewer Patent Attorneys A. Cost Per Patent Will Increase B. Work load of Existing Patent Attorneys Will Increase C. Multiplying Effect Encourages Exit D. Fewer Patent Applications Will Actually be Filed Counter to Incentives E. Fewer Patent Applications Will Have a Negative Impact on American Economic Growth and Stability F. Effect on Patent Quality V. PROPOSED CHANGES TO INCREASE THE NUMBER OF PATENT ATTORNEYS A. Open the Patent Bar to Non-engineers B. Expand the Patent Bar 1. Encourage Women to Enter the Patent Bar 2. Encourage Racial Minorities to Enter the Patent Bar C. Discourage People from Exiting D. Encourage the De-professionalization of the Patent Bar E. Encourage Efficient Division of Labor VI. Conclusion I. Introduction

    [E]very individual ... endeavors ... to employ his capital ... so that its produce may be of greatest value.... He generally ... neither intends to promote the public interest, nor knows how much he is promoting it.... [H]e intends only his own security ... only his own gain, [a]nd he is in this ... led by an INVISIBLE HAND to promote an end, which was no part of his intention.... By pursuing his own interest he frequently promotes that of society more effectually than when he really intends to promote it. Although Adam Smith penned these words at the time of the American Revolution, they are apropos to patenting today. Without patents, inventors would disclose less, (1) our economy would suffer, (2) and the United States would lose ground to its international competitor nations. These are economic truisms that we accept for the purposes of this article. That is, this article is based on the premise that patenting is good for the American economy. (3) Presuming that patenting is good for the economy, a reduction in patenting is, arguably, bad for the United States' economy.

    Another truism in patenting is that the high, reified standards that America requires for individuals to become patent attorneys is somehow connected to the "quality" of American patents. There are many different and competing definitions of "quality." We adopt what we believe is the most objective and reliable definition to conclude that, in fact, the highly reified standards of American patent attorneys has no visible correlation to patent quality.

    We have established elsewhere that new entrants to the patent bar are in free-fall decline. (4) By 2018, new patent bar entrants will be "one half of what they were in 2008." (5) One reason for the decline of the number of new patent attorneys is the reified standard for entry to the patent bar. There is a certain and looming crisis in America because the number of patent bar qualified individuals is in decline and it will decline sharply in the near future. This is not a prediction. It is a certainty. The individuals set to enter the patent bar in 2018 are currently second year law students. That is, we only need to count people in their second year of law school to know the size of the 2018 class. (6)

    In this article, we argue that the number of patent-bar eligible attorneys will decline and that the reification of patent attorneys is not related to American patent quality. The next question becomes what to do about it, if anything. We also attempt to answer this next vexing question with this article.

    We think that a diminished number of patent bar practictioners in the United States will have negative consequences for American innovation and, ultimately, American international competition. There has been plenty of work done by others that has clearly established that one of the reasons for the advanced state of American competitiveness on an international scale has to do with American innovation, and that is a direct result of a robust patent law system. (7)

    We believe that a strong and robust patent system has been instrumental in the development of the United States economy. We worry that, as the aggregate size of the patent bar applicant pool shrinks, many important and negative consequences will result.

    The first consequence is, of course, that there will be fewer people to do the important work that the various initiatives inspire and, in fact, require. As the number of patent attorneys shrinks, the workload per existing patent attorney will naturally increase. This increased workload may have a multiplying effect, encouraging existing patent attorneys to leave the practice of patent law, something we refer herein as "exit." (8) Exit is likely to hasten the shortage of patent attorneys as many law firms have high demands on the productivity of individual patent attorneys, which makes being a patent attorney less attractive. (9) Although compensation per existing patent attorney is also likely to increase as a result, burn out will encourage more and more patent attorneys to exit. (10) As the number of patent attorneys shrinks, the cost per patent is likely to increase to pay for the salaries of existing patent attorneys that will ultimately be in higher demand. As the cost per patent increases, it will discourage inventors from filing patents. This is precisely the opposite incentive provided by the American Invents Act, (11) the United States Patent and Trademark Office itself, (12) all law schools with any interest in intellectual property, and inventor-support groups across the country. (13)

    Of course, and paradoxically, the decreased number of patent attorneys may have some positive consequences. For example, as patent attorneys get busier, they may be more selective of the patents they file, and therefore be less likely to file patents of lesser quality that are not enforceable. However, there is no evidence to suggest that busier attorneys are more selective of the applications they file or clients they select.

    Although the minor and hypothetical positive consequences are beyond the scope of this article, it is important to point out that as patent attorneys become busier, they will likely have less time to devote to non-patent matters such as trademark and copyright work, litigation work, and licensing work as they have done to date. Today, an average patent attorney's portfolio of work usually includes many non-patent aspects of intellectual property law.

    We need not wait as we realize a reduced patent bar pool and the negative consequences that will result therefrom. We should increase the size of the patent bar, not passively watch and report on its demise. We argue that America has, for good or bad reasons (or for no reason we can discern at all), established a uniquely reified class of individuals who can become patent attorneys. We believe that this reification does not contribute to patent quality in America, contrary to the general consensus.

    In this article, we test the notion that reification is correlated or causes patent quality in America. To do so, we compare levels of reification in many nations and look for correlations to quality. As there exists extreme disparity in the levels of reification in comparable nations, we would expect to see disparity in the levels of quality. This, in fact, is not the case. Quality is more or less constant between comparable nations while reification is extremely disparate America's competitors on the world scale do not create such reified classes to the extent that America has with reified patent attorneys. (14) This, by definition, limits the number of people that can do the job of being a patent attorney compared to America's competitor nations.

    Although the high price of entry is a positive for subsisting patent attorneys as they understandably protect market share, it will ultimately have negative consequences on the United States economy's continued dominance on a global scale. As the patent bar shrinks, costs per patent will increase and overworked patent attorneys will exit. And though there is a steady increase in the number of patent applications that are being filed, having fewer patent attorneys to file them will ultimately have a deleterious effect on the United States economy. Accordingly, entry will have to change if America is to remain competitive.

    First, the United States should change the reified requirements of entry to the patent bar. As is, if a person graduates from MIT with a 4.0 GPA in mathematics (a degree that all would agree assures the person is one of the brightest people in America), that person is excluded from entry. On the other hand, if another person graduates from the University of Wisconsin-River Falls with a 2.0 GPA in biology, (15) that person is not barred from entry. The current minimum threshold for practicing patent law in the United States requires, in addition to graduating from law school and passing some State bar exam, a bachelor's degree in one of a very limited number of engineering or science degrees. Though ensuring patent quality is the claimed goal of the patent bar requirements (which we establish below is misguided), that goal alone does not explain why one of the best and brightest in America would be denied entry. Thus, we recommend that this reified standard be liberalized if America is to remain competitive. (16)

    Second, we recommend that law schools do a better job promoting the practice of patent law to existing and potential law students. (17) Third, we believe that the existing patent bar should be made more penetrable so that more people can pass it. (18) Today, it has a passage rate of some 40%. We think this is too low and further...

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