Intellectual property (IP) law is an extremely complex legal field that covers not only patents but also trademarks, copyrights, trade secrets, know-how and licensing. In today's highly competitive economic environment which includes national and international competitors, the importance of adequate protection of IP cannot be understated. For example, the rapidly-changing, highly-competitive computer and biotechnology industries have particularly caused a severe strain on IP law.
The demand for IP professionals in general, and patent practitioners, in particular, has far exceeded the supply. And the situation will probably remain that way for some time to come.
In addition to the growth of high tech industries, other factors creating a new demand for IP and patent professionals are the surge of imports and with it the influx of patent and trademark applications from foreign manufacturers, recent IP legislative reforms, not to mention the creation in 1982 of the U.S. Court of Appeals for the Federal Circuit (CAFC) whose jurisprudence has had a very beneficial effect on the patent system and IP law.
While the overall number of U.S. lawyers has more than doubled in the past fifteen years (from over 400,000 to over 800,000 - 1 million by the year 2000), the number of patent lawyers increased only marginally to the present level of over 13,000.
The biggest bottleneck to the entry of new practitioners into the patent field is the need for strong technical credentials. Would-be patent lawyers invariably hold undergraduate degrees (and perhaps second graduate degrees) in one of the sciences or engineering. A prerequisite for taking the patent bar examination that a law student or graduate must pass before admission to practice before the U.S. Patent and Trademark Office (USPTO) is a bachelor's or graduate degree, or the equivalent thereof, in a specified scientific or technical subject from a recognized U.S. college or university. Such subjects are listed in Appendix A.
As in the case for other graduates from law school (typically a three-year proposition), the candidate also has to hurdle a general state bar examination to become a licensed attorney.
Indeed, the basic legal curriculum, fairly standard throughout the U.S., does not include patent or IP related law. Historically, few schools have provided even elective coverage. Thus, most patent attorneys have had to acquire their knowledge and skills on the job. The situation has improved over the past decade or so. A few law schools now offer as many as twenty or more credits (well within the usual range of law school elective hours) in IP law and thirty-five credits in the case of Franklin Pierce Law Center (FPLC). IP courses are merely electives since IP law has not been required for state bar admission purposes and is not a subject covered by state bar examinations.
II. THE GULF BETWEEN LAW SCHOOL AND LAW PRACTICE
Before going into the specifics of academic training in the IP field offered by some law schools, it is appropriate, for background and perspective, to review and illuminate the present state of flux and ferment in law schools with respect to specialization or concentration and the gulf between law school and law practice. Law school teaching has changed very little over the years and decades. Its cornerstone by and large is still the Socratic method and case analysis pioneered at Harvard more than a century ago. Yet, the practice of law has changed significantly, especially in more recent times, following changes in the business and political worlds, and law students increasingly need specialties.
The legal profession complains that law schools don't teach the skills students will actually need to practice law. Since at least 1990 "[c]ries from the organized bar that educators must do more to narrow the gap between the classroom and law-office realities will grow louder." (U.S. News & World Report, March 19, 1990, p.59, 61)
For a long time, the law schools and practitioners argued about whose responsibility it was to teach students practice. Many schools contended their job was only to teach the law and warned against going too far and trivializing law school's scholarly and theoretical purposes and leading to a trade school approach.
This ferment was further dramatically high-lighted by the creation of a "Narrowing the Gap" task force by the American Bar Association (ABA) which led to the so-called "McCrate Report" containing very critical conclusions about the state of legal education in America.
Then ABA President, Talbot D'Alemberte, also deplored this education schizophrenia:
"We are very much a divided profession. Our academic side is over here and the practicing lawyer is over there, and they don't connect very often.
"Our insistence that we are part of the academy and our insistence that we are not a trade school has actually led us to cut ourselves off from the people who have things to say to our students, people from the profession and people from other schools in the university." (ABA Journal, Sept. 1990, p.53)
FPLC, as will be seen below, is clearly ahead of this fray or outside of this furor with its practice-oriented approach, including "bridging semester" or "exit semester" courses and other benchmark alternative (BMA) concepts. This is likely also true at other law schools with extensive IP programs since substantial IP programs and extensive IP training are recent law school innovations and IP faculties still consist by and large of IP practitioners, especially in the patent law field.
III. IP TRAINING IN AMERICA AND IN AMERICAN UNIVERSITIES
A. On-the-job Training, CLE Programs, Patent Academy
As was pointed out in the Introduction, historically most of the IP training has been of the on-the-job type and has taken place in a mentor system and this is still generally the case even nowadays in IP law firms hiring new law school graduates and in corporate IP departments doing the same or transferring scientists from R&D departments to IP departments. Such transfers are taking place on a fairly large and increasing scale due to the shortage of IP practitioners, on the one hand, and, on the other hand, due to certain advantages that this harbors, i.e., familiarity with the company, its culture and its personnel as well as its R&D and IP operations. Often such transferees have gained experience in, e.g., patent practice as [co]inventors or liaison personnel and their training needs are not as urgent nor as extensive. They become patent agents as soon as they pass the examination for registration to practice in patent cases before the USPTO. Most of these, especially the younger ones, also enter upon a four-year law school evening program.
This on-the-job training and mentoring is supplemented by periodic internal seminars and attendance at programs held by local and national bar and IP associations as well as the Practicing Law Institute (New York) or Patent Resources Group (Washington, DC), etc. and with increasing frequency by law schools, such as, John Marshall Law School, George Washington National Law Center and FPLC. In states with CLE (Continuing Legal Education) requirements, compliance with those requirements by attendance at professional meetings and IP courses is an additional motivation.
The USPTO, traditionally a source of skilled patent practitioners for law firms and corporate departments, maintains a Patent Academy which trains its new examiners in an extensive four-phase program. The USPTO admits a few non-government employees to each training course, an opportunity which for the most part foreign practitioners intent on learning U.S. patent law take advantage of.
For completeness sake, mention might be made at this point that some Washington, DC law firms, in particular, hold annual IP training courses also designed to attract foreign practitioners. The Cushman, Darby and Cushman "Advanced Patent Seminar" is typical.
As regards IP teaching in universities, it appears that occasional lectures are given in engineering and science colleges. Dr. Thomas J. Harrison, Chairman and Professor, Department of Electrical Engineering, College of Engineering of the Florida State University wrote:
"I give a lecture each semester on patent law, with some discussion of other means of protecting intellectual property, as part of the introduction to our laboratory courses. During this lecture, I usually discuss the career opportunities in patent (and related) law." (Recent Personal Communication.)
It is highly questionable that apart from such introductory lectures any systematic in-depth IP law teaching takes place in universities in general in either undergraduate or graduate science and engineering curricula. In fact, even graduate business schools have paid little attention to teaching IP law and IP licensing/technology transfer in spite of the pervasive growing economic importance and impact of IP and IP licensing. Interestingly, The Fletcher School of Law and Diplomacy at Tufts University, Boston, will only now start IP teaching with a course in International Intellectual Property Law (to be taught by this writer).
As was stated in the introductory chapter, even in law schools, the most that can be expected is that an introductory IP survey course is being taught by a regular faculty member who is not an IP specialist or an adjunct professor who is a local IP practitioner and that only in about 50% of American law schools.
B. IP Survey Courses in American Universities
The Dickinson School of Law (Dickinson) of Carlisle, Pennsylvania is one of the schools in a second category of law schools with typical IP survey courses. Dickinson, in fact, has three elective survey courses for two semester hours each. This undoubtedly has something to do with the presence of Professor William J. Keating, a former Patent Counsel at AMP Inc., who in fact teaches these courses. Professor Keating assesses the situation as follows: "... the few schools that have an intellectual property program offer a survey course including patents, trademarks and copyrights. Except for Franklin Pierce, John Marshall and the Washington, DC schools, most schools do not have enough students to justify a program." (Recent Personal Communication.) But interestingly Professor Keating's classes are relatively large: they "usually have 40 students in Patents; 70 students in Copyrights and 80 students in Trademarks."
The University of Baltimore School of Law is another illustration of a law school with three IP survey courses, undoubtedly due to the presence of Professor William T. Fryer III, who is well-known and very active in IP circles and associations. In the school's catalog IP is listed with its three courses as a "specialized area" among many others like "Child and Family," "Civil Rights," "Corporate," "Criminal Law," "International Relations," etc. all of which feature seven to nine courses.
To give two more illustrations: Albany Law School, Albany, New York, where IP Professor Michael Hutter has been in residence for many years, has two-or-three-credit survey courses in Industrial Property and in Copyrights, which are taught by adjunct professors and Unfair Trade Practices which Professor Hutter teaches. And Notre Dame Law School, South Bend, Indiana, has two two-credit IP courses taught in alternate years. One covers Copyright, Trademarks and Trade Regulations and is taught by resident Professor Joseph Bauer; the other deals with Patents and is taught by an adjunct professor, a local patent lawyer. A few additional law schools across the country, possibly increasing in numbers due to the present-day "sex appeal" and glamour of IP law and practice, exhibit this three-survey-course pattern.
IV. LAW SCHOOLS WITH IP SPECIALIZATION
A. Ranking of Law Schools by Specialties
U.S. News & World Report publishes a ranking of all American law schools (over 180) in March of every year. In addition, the ten best law schools in the specialties of International Law, Environmental Law, Tax Law, Health Law, Clinical Training and Trial and Appellate Advocacy as well as in IP Law are listed. In the speciality of IP Law, the ranking according to the March 20, 1995 issue (p.85) is as follows:
1. George Washington Univ. (D.C)
2. Franklin Pierce Law Center (N.H.)
2. Columbia University (N.Y.)
4. Stanford University
5. New York University
5. University of Houston
7. John Marshall Law School (Ill.)
8. Boston University
9. Chicago-Kent College - IIT
10.George Mason University (Va.)
Some of these schools as, for example, Columbia, Stanford, New York, made the top-ten list because of their strength and prowess in Copyrights, Trademarks and/or Unfair Competition rather than Patents.
The ranking of law schools by specialties was started in 1992 when only the five top schools were listed and when FPLC ended up in third place after George Washington and New York Universities, which was no small accomplishment for the country's smallest independent law school that was only 18 years old and located in a big city.
B. The George Washington University
The first-ranked George Washington University (George Washington) has a J.D. degree program with day and evening divisions and a summer session as well as graduate (LL.M. and D.J.S.) programs. It has several specialized LL.M. programs: Environmental Law, Government Contracts, Land Use Management and Control Law, International Law and IP Law.
According to the George Washington's 1994-95 Bulletin, the IP Law Program, under the direction of Professor Harold C. Wegner, comprises the following curriculum:
Biotechnology Patent Policy 
Chemical and Biotech Patent Policy and Practice 
Comparative and International Intellectual Property Seminar 
Comparative Patent Law Seminar 
Computer Law 
Copyright Law[2 or 3]
Electronics and Computers: Policy and Practice 
International and Comparative Patent Law 
International and U.S. Regulation of Foreign Trade 
Japanese Patent Policy 
Licensing of Intellectual Property Rights 
Patent Enforcement 
Patent Law [2 or 3]
Patent Policy and Practice 
Trademark Law 
Unfair Trade Practices 
George Washington also has a Joint Juris Doctor-Master's Degree Program so that students can work concurrently toward both the J.D. degree in the National Law Center and a master's degree in the University's Graduate School, in such related fields as business administration, economics, international affairs, political science, and public administration.
Speaking of George Washington it is worthwhile recalling Professor Glen E. Weston's excellent presentation at the WIPO/ATRIP (International Association for the Advancement of Teaching and Research in IP) Symposium in San Jose, September 17-21, 1990. The title of his paper was "Experience of the Teaching of Intellectual Property ... at an English-speaking University." After "40 years of teaching primarily at George Washington," Professor Weston recounted the travails encountered in shaping an IP program as is now in existence at George Washington and, more particularly, the problems of
- persuading university administrations and faculty to approve new IP courses,
- obtaining adequate teaching materials,
- finding well-qualified teachers for IP courses,
- demonstrating sufficient student interest in new courses, and
- continuing close supervision to assure quality.
C. The John Marshall Law School
The John Marshall Law School (John Marshall) of Chicago, Illinois is one of the largest independent law schools in the nation, with an enrollment of over 1,200 students. Its IP Program is the oldest in the country and is now headed by Donald P. Reynolds. The faculty of the IP Division are adjunct professors from the Chicago IP bar.
John Marshall has a day and evening division as well as an eight-week summer session. In the evening division at least four years and one summer session are required for completion. The day division is standard. The requirements for the J.D. degree program are at least 90 semester hours. John Marshall also has two graduate programs: Taxation and IP requiring 24 semester hours or 21 semester hours and an independent study project to obtain an LL.M. The following IP courses are offered at John Marshall:
Advanced Claim Drafting Workshop 
Clinical Legal Education: Intellectual Property Law [1-3]
Comparative & International Patent Law 
Entertainment Law 
Independent Research in Intellectual Property Law [1-2]
Intellectual Property Law Planning and Practice 
Introduction to Intellectual Property Law 
Patent & Trade Secret Law 
Seminar on Selected Topics in Intellectual Property Law 
Trademark & Copyrght Law 
Unfair Competition & Trade Regulation 
V. FRANKLIN PIERCE LAW CENTER
A. An Innovator in Legal Education
Franklin Pierce Law Center (FPLC) began in 1973 as a small, pioneering law school and as New Hampshire's only law school.
Now FPLC has a faculty of over twenty full-time professors and over twenty adjunct lecturers, a student body of about 450 students (close to 50% of whom specialize in IP or related law), and a record of innovations in training students to meet the challenges of practice.
As one of the leading institutions of IP training in the U.S. today, FPLC differs from such other leaders as George Mason, John Marshall or George Washington. Instead of emphasizing advanced-degree or evening-school programs, it provides a well-rounded, full-time curriculum leading to the basic legal degree, the Juris Doctor (J.D.). FPLC is the only law school having more than one full-time professor who is a qualified patent attorney. FPLC, in fact, has five. In addition, the President and Founder of FPLC, Robert H. Rines is a practising patent attorney and an inventor with over 70 patents to his name.
As an innovator in legal education, FPLC emphasizes learning the essential skills for professional practice. As an example, for IP law practice, the skills include preparing patent specifications and claims, negotiating and drafting licenses, and litigating IP disputes. As a result, FPLC graduates "hit the deck running" as IP lawyers.
The number of course credits at FPLC pertaining to patent and other IP law is higher than any other U.S. law school's offerings designed for J.D. degree students. The current list of courses, is as follows:
Administrative & Related Processes in IP 
Advanced Patent Prosecution I 
Advanced Patent Prosecution II 
Computer Law: Use of IP in Commercializing
Computer Innovations 
Copyright Law 
IP & Competition Law in the Europe Union 
IP Management 
IP Pretrial Practice 
Information Technologies 
Information Torts 
International Comparative Copyright Law 
International Comparative Patent Law 
International Comparative Trademark Law 
Introduction to IP 
Licensing IP 
Patent & Trade Secret Law 
Patent Practice & Procedure 
Regulation & Protection of IP in Advertising 
Selected Topics in IP I 
Selected Topics in IP II 
Survey of IP 
Trademarks & Deceptive Practices 
Trial Advocacy - Patent Section 
Description for the above courses are reproduced in Appendix B.
This curriculum is enlarged through independent studies, externships (internships) and special seminars and lectures on IP subjects. One externship opportunity places students in Washington, DC for a full semester in the chambers of a judge of the CAFC, which has exclusive jurisdiction over appeals in patent litigation.
B. Master of Intellectual Property Degree
The Kenneth J. Germeshausen Center for the Law of Innovation and Entrepreneurship (Germeshausen Center), launched by FPLC in 1985, is the umbrella organization for FPLC's specialization and policy studies in the legal protection, management and transfer of IP, especially as they relate to the commercialization of technology. It designs and supports IP programs ranging from brief orientation sessions for foreign visitors to a six-week summer school, to a half-year-long or a year-long, full-time course of study leading to a Diploma or a Master of Intellectual Property (MIP) degree. These programs have been attended by administrators, practitioners and law students not only from virtually every state in the U.S., but also from every continent of the world.
The MIP has been created as a master level degree but not a graduate LL.M.-type law degree inasmuch as some students have technical backgrounds but do not have law degrees. For both foreign and U.S. nationals who do not need law degrees to become licensing experts, the Diploma and MIP Programs are very appropriate. However, starting in the fall of 1996, an LL.M. degree program in IP law will be instituted.
These programs are also appropriate domestically to help alleviate the serious shortage of patent professionals through "training individuals as patent agents for six months or one year," as suggested by the Long Term Planning Committee of the American Intellectual Property Law Association (AIPLA) in 1990.
MIP Program participants spend two semesters at FPLC taking a thorough curriculum of academic courses, practical skills training and comparative law exposure. Subjects intensively treated are contract law, patents, trademarks, copyrights, trade secrets, IP licensing, the law of international trading and business relationships and international and comparative IP law. Skills instruction covers drafting patent claims, preparing patent applications, designing and drafting technology licenses, managing IP assets, and making legal arguments in mock litigation. In addition, students unfamiliar with the U.S. legal structure are introduced to it through special lectures as well as research and writing exercises.
The "third semester" places foreign MIP students for one month or more, in an IP law firm and/or in the IP department of an American corporation and/or a governmental agency.
In July 1990 the New Hampshire Postsecondary Education Commission extended indefinitely into the future the authority of FPLC to confer the MIP degree, after an initial three-year approval subject to annual reporting requirements. The extension was based on the report of an evaluation team appointed by the Commission. The report cited the "extremely impressive" MIP Program as occupying a "unique niche in legal education worldwide."
In a WIPO/ATRIP Symposium in San Jose, Costa Rica, September 1990, Professor Stanislaw Soltysinski, Mickiewicz University, Poznan, Poland, gave a description of FPLC's MIP Program, recognized it as "unique" and recommended its "transplantation" elsewhere in his lecture entitled "Planning of Special Studies on the Protection of Industrial Creations."
The MIP Program began in August 1986 when FPLC enrolled five persons from the People's Republic of China as well as one student from each of five other countries: Taiwan, South Africa , Korea , the Philippines and Singapore.
In the following years students completing the MIP Programs came from all corners of the world, even including such countries as Mongolia, Zimbabwe, etc. They were, for the most part, high-level patent and trademark office and other governmental officials as well as IP practioners from law firms and corporate departments.
When these "students" return to their home countries they have a heightened awareness of how much IP protection promotes invention, innovation and economic progress.
FPLC also offers a shortened, one-semester Diploma Program for applicants who cannot spend an entire year in residence. The six-month Diploma Program includes the same courses as required in the first semester of the MIP Program; upon completion of the semester, participants take part in a one-month internship at a single U.S. institution.
C. Intellectual Property Summer Institute (IPSI)
Further, FPLC offers courses each summer in IP subjects for law students, lawyers, engineers, scientists and managers. IPSI offers a seven-week program in June and July comprising one or two-credit courses on Entertainment Law, Financing & Valuation of IP, IP Management, IP Evaluation, IP Research Tools, International & Comparative Patent Law, International & Comparative Copyright Law (1), International & Comparative Trademark Law (1), Basic Licensing, Patent Practice & Procedure, Patent & Trade Secret Law, Trademarks, and Copyrights.
With the permission of their home schools, law students can apply credits earned in the IPSI toward the J.D. degree. In addition to FPLC students, students from as many as 50 American law schools not having extensive offerings in IP subjects, attend IPSI. Also participants in IPSI have come from major U.S. corporations and research institutes as well as from many foreign countries.
D. Joint JD/MIP Degree Program
In late October 1990 the Law Center faculty approved a program allowing Juris Doctor degree students to earn both the JD and MIP degrees in three years of full-time study. Up to 50 second- and third-year students have already enrolled.
The joint degree program will permit FPLC students to obtain both degrees by satisfactorily completing 96 course credits (including 24 in IP courses, in which a B average must be maintained) and a substantial paper. The paper, to be designed and prepared under close faculty supervision, is the equivalent in the MIP program as a professional degree curriculum of a master degree thesis in an academic degree curriculum. Each paper is to respond to a demonstrated need arising in the administration or practice of IP law for legal or empirical research, policy development, critical analysis, or insightful synthesis. In lieu of such a paper, a faculty-approved project, e.g. national moot court participation, will also do.
The rationale behind the JD/MIP degree program is threefold. First, a student who comes to FPLC to specialize in IP within the parameters of the JD degree finds herself or himself in a squeeze. Enrolling in all or most of the IP courses the school offers leaves the student insufficient time to take the general law courses (including all the ones important in IP practice) that they should take or would like to take. Conversely, students who take the general law courses other JD students take may shortchange themselves by electing less than the full complement of IP courses.
Second, the IP curriculum - over 35 credits - is so extensive as in reality to amount to a separate degree program, especially when joined with the requirement of completing a substantial, professionally-valuable paper. Many of the FPLC IP courses could be offered at the LL.M. level, as is done in other law schools. Third, earning the MIP as well as the JD degree provides students with accurate credentials. Earning both degrees permits them to demonstrate readily, to potential employers and the rest of the world, that specialization in IP at FPLC means much more than, on the one hand, a few courses in the subject or, on the other, a sketchy general legal education.
Graduates from other law schools will also be able to take advantage of the combined degree program. They can apply toward the 24 credits required for the MIP degree up to 12 IP and IP-related credits earned earlier in their JD degree education.
E. Benchmark Alternatives
The gulf between legal education and legal practice, discussed above in Chapter II, is in fact getting wider, notwithstanding clinical-skills programs, as more and more elite law schools emulate graduate schools in emphasizing academic research and writing.
In contrast to this trend, the FPLC faculty is asking questions such as the following: Does the proposed program or course address a real-world issue or concern that legal education isn't adequately addressing? Does it relate to what is going on out in the practical world instead of relating primarily to academic exchanges? Will it improve the education of our students in helping them become more thoughtful, aware, skillful, and humane lawyers? Should the primary responsibility of the full-time faculty be individual growth of our students as legally-trained persons? These questions aim at the greatest weakness in the structure of American legal education - the failure of anyone to be charged with responsibility for training a person who shortly will be licensed to make a major impact on individuals and society under the cloak of professional responsibility.
A practice-oriented individualized learning [IL] program as a benchmark alternative (BMA) to academic research and writing can encompass a variety of steps and things, such as, in particular, "intensive semesters" and "bridging semester" for starters. One illustration of the former is a "legal reasoning" BMA for the first year to strengthen students' basic thinking and reasoning and hence writing skills. Other possibilities for "mastery courses" in other semesters: ADR (Alternative Dispute Resolution) concentration, "master advocacy semester," etc.
An example of the latter is the "Proactive IP Management" course which this writer teaches in the sixth semester and which is designed as a "capstone" course building on all of the IP courses taken in the second and third years, and a "bridging" (or "exit" or "transition") course spanning academia and real-life private or corporate practice. As such, it is a very practical course on how to get a headstart in intellectual property/licensing practice.
The advent of the Golden Age for patents and IP and the severe shortage of patent and IP professionals, have brought about great changes in the world of IP teaching and training. The subject of IP is now perceived as glamorous and enrollment in IP courses of study and programs has increased accordingly. While in the not-too-distant past, most IP practitioners had to acquire their skills on the job, many law schools now offer one or more IP survey courses and some have one full-time IP professor among the faculty. A very small number of law schools - too few - have started or expanded their IP curricula and now offer over 20, or, as in the case of FPLC over 35, IP credit hours. Outside of law schools no systematic IP teaching to speak of (apart from introductory lectures) have taken place in colleges and universities.
Law schools noted for their IP specialization or concentration, apart from FPLC, are George Mason University School of Law, John Marshall Law School, George Washington University National Law Center. Most IP teaching is still largely a matter of evening classes taught by adjunct faculty. But changes are afoot in this respect, too. These law schools also tend to have graduate master-level programs as, for example, LL.M. degree programs.
FPLC has a particularly extensive IP specialization with a full-time IP faculty of five and over 35 IP course credits. The IP program is practice-oriented and involves the actual preparation of patent specifications and claims, of responses and appeal briefs and of license agreements which enables students to take and pass the USPTO admission examination and enables graduates to "hit the deck running" upon entering IP practice.
The graduate program at FPLC, the MIP Program, is also different - in fact its been acclaimed as "unique" - because non-lawyers from the U.S. and from many foreign countries are admitted to it. Most recently, FPLC has started a joint JD/MIP degree program which will permit students to obtain both degrees simultaneously or almost simultaneously provided the requirements regarding more course credits, higher grade average and preparation of a paper are fulfilled.
Karl F. Jorda
David Rines Professor of Intellectual Property
Franklin Pierce Law Center
Concord, NH, USA
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