As I continue developing my summer’s writing project, I am faced with another issue. The patent bar is not comprised of just attorneys; instead, almost a quarter of the individuals who can file patent applications for others are “patent agents” rather than “patent attorneys.” The only difference between the two groups as far as the Patent Office is concerned is that a patent attorney is a self-reported member of a state’s bar. Both groups must establish generalized technical competence (but see here) and familiarity with the rules of practice propagated by the PTO.
The lack of legal training has another significant difference, however. All law students (at least at ABA Schools, see Interpretation 302-9) are required to study legal ethics and are introduced to the idea that their conduct as attorneys must be done within the bounds of the rules of practice. This training would not be obtained by most patent agents.
Two questions occur to me. First, does it make a difference? Are patent agents more likely to engage in inappropriate behavior before the PTO than a patent attorney? Second, which ever way the first question is answered, what does it say about the ethical training we provide in law school?
I am beginning to think about ways my first question can be measured. One possibility is to determine who is disciplined more by the PTO for ethical breaches, attorneys or agents. My guess, though, about this approach is that the number of disciplinary cases is so small that no statistically significant result will be obtainable.
Assuming there is a solution to the first measurement problem, there would be one answer — there is no significant difference between attorneys and agents — that is reinforcing of the status quo at the PTO. If agents turn out to be statistically less reliable than attorneys, it would behoove the PTO to reexamine the admission standards for patent agents. Of course, if attorneys are established to be the more problematic — or evan as problematic — we may have to reevaluate how we train them in ethics in law school.