“Given the sheer dearth of skilled patent lawyers in this country, I am very partial to the idea of a specialised IP law school. Particularly since the premier legal institutes in the form of the National law schools do not focus on science at all, a discipline that is absolutely essential for churning out decent patent lawyers.
….I don’t necessarily see a problem with a specialised “IP” focus in an entry level LLB course, provided other foundational legal courses such as contracts, torts, criminal law, constitutional law etc are also taught.”
This post generated a number of insightful comments, some of which touched on the broad issue: how critical is a formal science degree for entry into the coveted club of patent attorneys? I began by replying to the myriad comments and then realised that (as is wont with most of our ilk in the legal profession), verbal diarhoea took over and my thoughts ran into a good 2 pages or so.
So rather than burdening the comments section, I thought it fit to post my thoughts here. I am still thinking through these issues and have quickly penned down what are best rough ideas. May I therefore invite all of you with an interest in this theme to pitch in with your thoughts and perspectives on this challenging issue?
Freedom of Academic Instituitions To Design Curricula
The key issue in this legal dispute is about the freedom of institutions to devise their own courses and entry requirements (within the broad bounds of the Bar Council [BCI] norms). There is a difference between this institutional freedom and a legal requirement (mandated by the BCI or some other institution) that only those students with science degrees can practice patent law. The Supreme Court petition is really concerned with the former and not the latter.
However, the latter is an issue that is closely connected with the former issue and deserves some discussion: How important is a “technical background” (science/engineering) for producing good patent attorneys?
Some of you have suggested that a good keen mind is more important than formal education. While I broadly sympathesise with this line of thought, this argument can be stretched to an extreme to suggest that we don’t need any formal qualifications for lawyers at all i.e no need for an LLB degree and anyone should be permitted to argue in court! The problem with such an argument is that we then have an unregulated pool of people who are vested with the responsibility of legal cases (on behalf of clients) and are also meant to be “officers of the court” helping it dispense justice.
Therefore, some level of regulation might not be out of place. If that is our baseline, we then ask the next question: how do we regulate entry to this profession and what kind of courses should people interested in joining the profession learn? Should we just have a five year law degree or a 3 year law degree (taking only candidates with a first degree) or should we just have a bar exam (anyone who passes this is entitled to practice law) or a combination of the above.
The same framework (and questions as above) can be extended to patent attorneys who are but a subset of the overall category of the legal profession.
This profession differs from other legal areas in that it requires a proficiency in both “technology” (science/engineering) and law. What is the harm then of permitting an institution such as the IIT to insist that its intensive law course (with a special focus on IP) is open only to science graduates? Provided of course, that the special focus on IP does not come at the cost of teaching students other foundational legal courses such as contracts, torts, constitutional law etc.
And again, it bears reiteration that one must make a distinction between a bar council requirement that only a science or engn graduate can practice patent law (which is not the case here) to a case where an institution (of its own volition) mandates such a requirement for entry into its course. If patent law requires a substantial dose of both science/technology and the law, I see no harm in the IIT insisting that only science/technology graduates join its program, so that it need not waste time inculcating the philosophy of science/technology, whilst teaching patent law to these students.
Of course, this debate must be careful to appreciate that the patent profession itself is not a monolithic structure but lends itself to further divisions:
1. Patent drafters/prosecutors
2. Patent litigators
3. Patent academics/researchers
4. Patent paralegals
Patent Drafters
For patent drafters and prosecutors, science is an absolute must. And I think it is with good reason that Indian law does not permit one to be a patent attorney, unless one has a science/technology degree and one passes an exam that tests one on science fundamentals. As to whether this exam is an optimal one for testing candidates on science/technology proficiency is another issue and I leave it to those of you who are more familiar with this exam to give us your thoughts on this.
(ps: As many of you know, this requirement of a science degree and an exam came in only in 2003 or so–and I may perhaps have been one of the last people to have qualified as a patent attorney without having a science degree.)
But this category leaves me with two uncomfortable questions. If someone has a basic degree in chemistry, is that person qualified to draft a patent covering a telecommunication technology? Should we then have separate exams for all these fields and each patent attorney is to be identified with his/her specific field of expertise. From a policy perspective, this kind of further classification seems unduly cumbersome.
Perhaps we ought to resign ourselves to the fact that perfection here in unattainable and we ought not to make the “perfect” the enemy of the good. In other words, lets have “science” qualification as a must for making the cut for a patent attorney (who drafts and prosecutes) but lets not further categorise them and tie them down to their specific areas of technological expertise.
The second uncomfortable question is this: Given that a patent is a techno-legal document, should not patent attorneys (who draft and prosecute) have some formal training in the law as well?
Patent Litigators
As for the other categories outlined above, I’m not sure if I would go to the extent of insisting on a formal science degree as an entry level requirement. After all litigators deal with so many different areas of law and have to argue before judges who may not be trained in science and patent law. And some of the best patent litigators the world over have no formal science background. Take the case of Judge Randall Rader of the US CAFC, one of the finest patent judges the US has ever known–he is an English major.
More importantly perhaps, patent litigation may involve other areas of law as well. And to insist that the “patent part” be split from the rest of the litigation and argued separately by a science qualified person may be plain absurd.
Patent Academics/Researchers
If the case for exempting patent litigators from the requirement of a science degree is a good one, then that the case for exempting researchers and academics is an even better one. Anyone with an interest in the area (but no formal training) ought to be able to write and research on this subject. And there should be no fetters on academic freedom of this sort. We find that some of the best patent literature came from economists (think Fritz Machlups 1960 report) and even from geographers (think Graham Dutfield).
Patent Paralegals
The last category, “patent paralegals” ought not to have any specific formal entry requirement, since most of the work they do is normally overseen (and signed off) by qualified lawyers/patent attorneys. A large part of our LPO segment comprises of folks who may be broadly termed as “patent paralegals”.
These are very rough ideas–and I look forward to a discussion.
Dear Shamnaad
I think that even for patent litigation, science degree is a basic minimum. I say so because no lawyer can argue the case without really knowing what is claimed by the patent. The most common are infringement suits, for which the lawyer has to prove same or distinguish claims of one patent from another, which essentially requires some understanding of the technology.
Regarding specialized IP education, ofcourse a person with B.Sc. in chemistry cannot be expected to file a patent on telecommunications, which is the reason why in countries like US, and even Europe, patent attorneys are highly specialized, with super specialization in single area only. However, Indian patent filing statistics have been way below the statistics from countries like US, Japan, Korea etc., as per WIPO statistics and eventually the patent agents right now end up filing national phase applications only. We may think of institutions with superspecializations in a single area, but Indian market is not ready for it right now. Thus, the experiment of IIT-KGP is, according to me a welcome step. For others, the options of LLM in IP, or even superspecialization in a field of science is always open. However, since the specification part of a patent, which actually discloses the technology is always provided by the inventor himself, and it is the claims which is the most important part and have to be drafted by a lawyer, thus, thrust on law papers is essential.
After going through this post, it appears clearly that in order to have a good patent lawyer in this country, a candidate first must have science/technical background in order to first understand the concept of an invention. secondly, if he/she could subsequently inherent patent course from an institute and as well inherent a basic legal degree, this would blend the two requirement altogether, and would better help not only in drafting and prosecuting but also in opposition and litigation proceedings.
Hi,
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Warm Regards
Scienz.info Team
http://www.scienz.info
I have worked with patent attorneys, patent agents and lawyers. IMO, science is absolutely necessary for creating decent patent lawyers.
we also have a field of patent managers. Patent managers may have certificate or diplome in some form of IP education.
Hi,
I am a regular follower of your blog and having drawn inspiration from you, have started my own blog-bollywoodlawreporter.
It is absolutely necessary that we have this discussion on general legal education in India. I believe, in order to upgrade the quality of legal profession as such, we need to improve the standards of legal education. While many do not qualify or could afford ‘national’ law schools or similar variants of the same, people from varied backgrounds join the profession, either as practitioners or even in in-house legal roles.
It is essential that a bar exam in introduced with variables as per the aspiration and limitation of the candidate; this would mean that exams would be modeled based on whether one would want to practice at which level of the judiciary. May be for district level, no prior trial court experience would be required but to take the exam for High Court, a two year stint as a paralegal with law firm or district level court would be required. Similarly what if a specialisation like patents is required, I would suggest that the present model of Patent office exams to have both science and law degree would suffice. Without a science degree from a client-consumer perspective, it is better that a science background is must if one has to practice as patent attorney exclusively. To have patent lawyers without a science background is like allowing a butcher to work as a beautician. It would be extremely disadvantageous for clients. In India we haven’t yet reached to that stage of patent drafting and filing, like say in Germany or Europe as such or even US, a specialization in science to the level of doctorate in a particular stream would only enable you to write patents in that field, meaning a biotechnologist would not be writing patents of mechanics.
Similarly if one wants to practice labour law in labour courts one should either have a specilised knowledge or should have practiced as paralegal in those courts.
I think the new government should introduce a legal education where performance in bar exam would determine your capability to be a lawyer-either in court of in-house and not mere family lineage as is the case with some of the big firms in India.
Sir
Not only IIT-Kgp, but the University of Petroleum and Energy Studies in Dehradun, which till now used to offer a BA-LLB program with specialization in Energy Laws , has started an integrated B.Tech-LLB program with the option of specialization in either cyber laws or IPR laws. The admission is through an entrance test and only people with a 10+2 in Physics, Maths and Chemistry are eligible. Also, in those NLUs and other law schools where BSc-LLB is being offered, only the students with 10+2 in PCM are allowed to take that up.That means , by the petitioner’s logic, such courses should also be banned as they infringe the fundamental rights of the students with an arts backgroundI wonder why the petitioner chose to question only IIT-Kgp’s degree? Maybe it is a case of sour grapes.
Regards
Achintya Nath Sexena
RGSOIPL
IIT-Kgp
Dear Vinati, Manish, Marie, Achintya, ARA, Ayan and all,
Thanks for your thoughtful comments and suggestions.
Ayan–terrific blog there. Keep up the good work–its an area that really needs a lot of discussion and debate.
I would be extremely interested in knowing if there are science degrees that can be pursued after LLB. And how ppl feel about that…would there be a mind block towards such practice? would the readers be of the opinion that it is a waste of time..or too late? I would think its a good idea..only so one is ‘legitimized’ in the patent field.
Dear Shamnaad,
I think here we should look into the practical aspect. A technical person, for example an engineer will directly move into patent prosecution and will not go into litigation as he gets an easy entry into patent prosecution. Thus, law graduates entering litigation in most of the cases do not have a formal science education. Therefore, in case of litigation, a case is argued by lawyers who are experienced with the court procedures (lawyers praticing law, i.e., with no formal science education). Thus, patent attorneys are busy with prosecution and rarely into litigation.
Krishna singhania
I read this post today and I think this discussion was long overdue.
I think it is absolutely essential for a patent attorney to have a science background. And that does not mean only a B.Sc.or a B. Tech degree. Such a basic degree does not equip one to handle sophisticated patent applications. It has to be an advanced degree like a PhD or at least an M.Sc. or an M.Tech. This automatically qualifies one for being a super specialist in ones field. A person with a chemistry background will have no idea about telecom/mechanical patents and should not be handling them. Most of the law firms in India dump all kinds of patent applications on their patent agents/attorneys. It is neither fair to the client (who will not get inputs that he expects and deserves) nor fair to the patent attorney (who will be at sea with applications not belonging to his/her subject).
Thanks
Anju Khanna
Dear shamand,
science is essential for filing a science patent and take part in legal proceeding related to science patent issues.
I think that the government should make arrangement to study IP law for the science proffesionals those who are working in patent firm like ip service providers, ip law firm and the like.
Dear Shamnad,
The questions you’ve raised are of great importance. But let’s look at the issue from a student’s perspective.
Assuming a student with a technical background confident of his interest in IP wants to pursue a law degree, he/she has very limited options in terms of good law schools within the country. National Law Schools such as NLS and NUJS, two of the best schools which have good IP faculties and infrastructure do not offer LLB programs!
So, to produce patent attorneys with substantial technical backgrounds-knowing that these backgrounds are absolutely essential for a patent attorney- educational institutions with the required infrastructure should step up with more inclusive programs.
The IIT initiative is great in that respect. Also, to a certain degree I am not sure of the efficacy of 5 year law courses in churning out good lawyers. But, that’s a matter of a separate discussion.
Dear all,
Thank you’ll for your thoughts. Based on my experience as LL.M-IP Law Graduate from Munich Intellectual Property Law Center, MIPLC, Germany, I would like to share my thoughts as under.
You’ll must be aware that the Headquarters of the EPO is in Munich. Therefore, lots of IP firms focusing on patent prosecution are scattered thereat. During my stay there, I was privileged to personally interact with few European Patent Attorneys and judging by the pulse of our long conversations, I always felt the necessity of a science/engg./technology related qualification as justified. More so because, almost every European Patent Attorney in Munich that I met, holds at least a Master’s Degree in their area of science/engg./technology, and anything above it, namely a Ph.D or two! Most of these IP veterans have spent their entire professional lives drafting, filing and prosecuting patent applications related ‘only’ to their respective area of technology.
Coming to the blog writer’s reference to Judge Randell Rader, as students at MIPLC, we were honored to hear him speak as a teaching faculty during one of our courses on ‘International & Comparative Patent Law’. While discussing a case related to Bio-technology, He once asked the class, “Who do you think is a person ordinarily skilled in the art (POSITA)*, in the field of Biotechnology?” After a long silence in the audience, he himself answered that a POSITA is nothing less than a Ph. D (Biotech) holder! Personally, my first reaction to this was; if the Judge is capable of understanding the significance of a ‘qualified POSITA’, the high standards that are expected from a local patent attorney, can only be imagined!
Reverting back to the situation as prevalent in India, the fundamental question here is, are the Judges in India qualified to ‘judge’ a patent infringement case? It is ironical to notice that a person wanting to qualify for the Indian Patent Office patent agent / attorney exam must possess a Bachelors Degree in any area of science / engg. / technology. Contrastingly, no such requirement is thrust upon a person who is appointed to judge a patent infringement suit. Thereby, a patent agent is capable to draft the most appropriate patent claims as per his knowledge, but is the Judge capable enough to understand the same claims if they are contested in His Court? I have my doubts about it! Very few people like Judge Rader who are not technically or scientifically qualified, can handle such cases very efficiently. But as rampant in India, is it appropriate to solely depend for a decent judgment from a non-qualified Judge? Is it not important to procure scientifically qualified Judges for this purpose? That is a big gray area in our patent regime, which perhaps our reforms and policy makers will have to address.
Regards,
Gaurav Phadnis
* POSITA- It is the minimum parameter to assess the the validity of a patent claim for inventive step / obviousness.
I dont think having a science degree would make all the difference , all depends upon how quickly you grasp the subject and & anyways who is to test your science skills. Its all relative.
Now Arun Jaitley doesn’t have a science degree but he is Cipla’s counsel for most of the post grant patent invalidation cases.
We cant define a person skilled in the art as one having 99 percentile in GATE , he might have knowledge of the subject but no aptitude for law
Everything depends on interest ..I am Masters in Pharmacy more specifically Pharmacology( which is pretty interdisplinary ) and I handle patents on Chemistry better than a Chemist .
no offence intended but i have noticed that people who have advanced science degrees are so into the science that they cant articulate or draft as well as lawyers do and again command over English remains an issue . An ideal patent attorney would be one who has decent grasp of the subject ( need not be a PhD..) and has great command over the language.
In patent invalidation can be through reexamination or they can be invalidated through appeals in the court.So many patents which were reexamined and found to be valid (by a Controller person skilled in the art) were invalidated in the court ( judge a person not skilled in the art). All boils down to interest.