Finally, the patent bar helps to prevent the USPTO from examining trivial patent applications, like inventions that supposedly defy the laws of physics or thermodynamics. The patent bar exam also frames a general understanding of how intellectual property law firms are setup. Boiled down, in the realm of patent law there are patent prosecutors and there are patent litigators. A larger intellectual property law firm will have both kinds of patent lawyers.
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Patent prosecutors must pass the patent bar in order to prosecute patents before the USPTO, whereas patent litigators need not pass the patent bar exam at all. In fact, patent litigators need not have a technical degree or technical experience, although such knowledge may be useful over the course of their practice. The relation patent prosecutors and patent litigators have with each other can be simplified to this: patent prosecutors generally represent an inventor up to and including the granting of a patent, while patent litigators represent their clients after a patent has already been granted.
Generally, patent prosecutors facilitate interactions between a private party their client and a public party the USPTO , and patent litigators mostly resolve disputes between two private parties two companies or inventors , often times representing a client entangled in a patent infringement lawsuit. Although eligibility for the patent bar is only necessary for those interested in becoming a patent prosecutor, those without the necessary requirements to take the exam are not precluded from working with patents.
In other words, the arenas of patent litigation, copyright law, trademark law, and trade secrets are still available for those seeking to practice intellectual property law.
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The USPTO can take anywhere between a week to a few months to approve applicants and allow them to register for a test date. Note that neither a law degree nor legal knowledge beyond the scope of the materials is required to sit for the exam. Once you have been approved, you must take the exam within 90 days. Make sure that you have at least two days available to take full practice exams a 6.
What does the exam cover and what does it look like? The majority of the exam is taken from the MPEP procedures and the patent laws. The exam is electronic, six-hours long, and comprises multiple-choice questions split into a three-hour, question session in the morning and another in the afternoon.
The exam does not test scientific principles or knowledge, though familiarity with technical language is helpful in working through the test quickly and efficiently.
Ten of the questions are experimental and do not count toward the score however, the exam taker does not know which questions are experimental. The exam is open book in that the laws, the MPEP, and any relevant USPTO rules and policies are accessible during the test; however, significant knowledge of the testable subject matter is required in order to move through the test quickly enough to pass the exam. Some candidates choose to self-study for the exam as all of the material tested is publicly available in the MPEP or in related documents available on the USPTO website.
And lawyer demographics have not changed much in at least a decade. Nowhere is this more apparent than within the field of intellectual property IP , both in practice and in legal academia. Economy: Update. On one hand, IP law is booming as one of the fastest growing legal practice areas. The American economy has continued to grow in the technology and information sectors, and the need for IP attorneys has followed suit. In recent years, intellectual property has accounted for nearly 20 percent of legal job openings even though IP attorneys make up a small percentage of the legal field.
Of roughly 1. On the other hand, even with such growth, diversity in the IP field has lagged. According to this same report, 70 percent of IP attorneys in law firms are male. There is scant intersectional data related to the combination of race and gender among IP attorneys, so it is not clear how many women of color are practicing IP attorneys. The anecdotal evidence, however, suggests that representation of women of color lags far behind other groups in general.
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This lack of data is problematic given that empirical information is critical to develop successful strategies to attract, hire, retain, and promote women of color in the practice areas that involve copyright, patent, trademark, and related fields like privacy, technology, and innovation law. This intersectionality conundrum makes the experiences of women of color unique and necessitates a unique strategy to diversify the IP field across all related disciplines.
Given this reality, diversity and inclusion efforts cannot exist in a one-size-fits-all type of vacuum. According to Dr.
Arin Reeves, an expert on gender biases, diversity and inclusion efforts affect the majority of the people in that specific category. Given this reality, quantitative data about women of color would provide better foundational context to tackle the issues revolving specifically around diversity and inclusion efforts for this uniquely situated group.
Even without specific data related to women of color in intellectual property, it is clear that the group is significantly underrepresented even though the industries feeding clients to IP lawyers are diversifying quickly. Diversity in the US population overall is, quite literally, shifting the IP landscape. According to the US Census Bureau, people of color will represent a majority of the American population by However, such efforts in the IP field should be more than just a means of providing visible evidence of social progressiveness.
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Diversity and inclusion efforts are becoming economically imperative to do business in a global society. The IP field needs more women of color because clients are requiring more diverse representation. For example, the pool of clients in the various sectors that make up the IP field or IP-intensive industries come largely from the technology, business, and entrepreneurship sectors.
While these industries have historically been white and male, the demographics of these industries are changing. Foreign-born innovators currently make up more than one-third of all innovators in America. What is more, corporations, including large tech companies with vast IP portfolios, are now requiring that their outside law firms have measurable numbers of diverse attorneys and strategies that do more than just pay lip service to diversity.
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Potential clients are using diversity and inclusion data to both differentiate among potential legal counsel and hold them accountable once hired. Diversifying the IP field to include more women of color will take separate, targeted efforts if legal service providers do not want to miss real business development and client engagement opportunities.
No effort, however, can achieve sustained and meaningful success without significant inroads into dismantling systemic barriers that have historically rendered women of color invisible in the practice of law generally and, in turn, the practice of IP law. Science, technology, or engineering degrees are often considered unofficial prerequisites for IP careers—likely because of the requirements to practice in patent cases before the USPTO.
The vast majority of people meet these requirements by obtaining one of the scientific or technical degrees outlined by the USPTO Office of Enrollment and Discipline. Women have obtained parity with men in obtaining science and engineering degrees. Unlike some other legal disciplines, undergraduate and graduate students do not always have a working familiarity with the substance of IP law or what a career in the field might look like.
Supporting pipeline opportunities, which would serve to introduce science and engineering majors to IP careers, would provide IP professionals an opportunity to connect early with women of color who may be interested in pursuing such careers. For the first time in history, women currently make up a slight majority of all American law students.
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These organizations and programs, and others like them, have taken significant steps in the right direction. However, if women of color are to be recruited and retained at high rates, such programs should also incorporate opportunities specifically geared toward this group. The IP field requires a certain level of dynamism among its practitioners—technology and innovation move quickly and lawyers working in those spaces must be able to similarly adapt and think quickly.
IP practitioners are typically quite successful in these efforts.