Title: In Pursuit of Patent Quality (And Reflection of Reification)
Abstract: I. 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 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. …
Publication Year: 2016
Publication Date: 2016-01-01
Language: en
Type: article
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