Patent Bar Ethics

    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.

Comments

[junior mint]

There's a foundational question here I think is important: before asking whether patent agents are more or less likely to adhere to the ethical boundaries that lawyers are taught, we should ask whether patent agents KNOW where those boundaries fall/what those rules require?

I worked at a large firm that employed patent agents (and those patent agents often attended law school part-time while employed by the firm), so in that situation I assume you would get the same level of adherence to rules of ethics from patent agents as you would from associates, with the same partner oversight. But with sole practitioners or firms where patent agents aren't supervised by lawyers, maybe behavior differs.

[Ralph D. Clifford]

The distinctions you raise are important. From my experience with working with associates right out of law school, the supervision ("Do you really want to do that?") from more senior attorneys is key. In any study, therefore, I think you would need to control for both the firm size and the experience level of the attorneys and agents.

The harder question to address would be the patent agent who is a part-time law student. With legal ethics often being required in the earlier part of a legal education (it's necessary to be clinic-ready), these patent agents may be more similar to attorneys in their education about ethics.