by Dennis Crouch
Many have talked about “raising the bar” in patent cases. In his most recent article, Professor Hubbard (Baltimore) argues for “Razing the Bar.” In particular, Hubbard argues that the current structure of limiting the patent bar to only those with technical educations “is doing more harm than good.” Hubbard also notes the “paucity of critical debate” in this area. As a first step, he proposes that any U.S. attorney, regardless of their technical background, should be permitted to sit for the registration examination.
Hubbard holds a degree mathematics from Dartmouth and a J.D. from Yale; has litigated patent cases; teaches patent law courses; has written extensively on the patenting system; … but is apparently not qualified to become a patent attorney himself.
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A benefit of shift brought about by both the Courts (Alice/Mayo/Nautilus/KSR) and Congress/USPTO (administrative post grant challenges) is that there is a greater incentive to focus patents on the detailed technological improvement rather than some abstracted notion of the invention that was more the norm for past generation.* My experience is that a technology-savvy patent attorney will be better able to cost-effectively understand the important technological details. The technological-education requirement of the patent bar places one hurdle in that framework, but the market continues to operate in this area as well. For instance, many companies only hire patent attorneys with relevant experience in the appropriate technological area and don’t simply rely upon the “patent attorney” status as a total qualifier.
* I see that I’m making a claim here and will look into researching whether there is evidence to back that up. Are patents being drafted today qualitatively different than those written a decade-ago?