Patent Jobs and the Myth of the Employment Hypothesis

Prof. Ken Port along with Lucas Hjelle and Molly Rose Littman have an interesting new draft article titled: Patent Jobs and the Myth of the Employment Hypothesis. Although it is not as easy as it used to be, the article explains that:

[F]or one easily identifiable group, the legal job market is strong and growing: job prospects for Mechanical, Electrical, Chemical, and Computer Engineers (hereinafter, “MECC Engineers”) are quite positive. However, despite these positive job prospects, the number of MECC Engineers coming to law school is at near-record lows. The decrease in the number of MECC Engineers enrolled in law schools far exceeds the decrease in non-patent-bar-eligible law students.

The article argues that “this fact will have a deleterious effect on the United States economy.”

 

51 thoughts on “Patent Jobs and the Myth of the Employment Hypothesis

  1. And yet I have over a decade of prep and pros work with a MS in Ch. Eng and MS in EE and still can find a decent full time job doing prep and pros work.

  2. What is happening is that prep and pros is mainly controlled by large corporations. What has happened is a lot of restructuring in law firms to continually push down the cost of prep and pros. The model of how it is done has changed. The business model is now different. The large corporations continue to want more for less. Corporations now pay about 70% for a patent application as they did 10 years ago and that is not adjusting for inflation, so it is probably about 50%. The law firms that are taking over prep&pros are the ones that are enabling a greater percentage of the billing to go to the attorney. So, a big firm like Finnegan I think was at 28% to the attorney, but other ones have gone to like 50% or more by restructuring prep&pros. Anyway, gentle people, that is what is happening. I could go into detail and actually list names of law firms that are winning the business and those that are losing the business.

    Moreover, corporations are beginning to question the value of patents in general. And, are beginning to question the value of R&D as it is becoming more and more apparent that you can take whatever you want and invalidate the patent at the PTAB.

    So, what is happening is budgets are getting squeezed for patents and for anything that is farther away from product development of the next product. This is all in general.

    Moreover, there is a constant pressure from India. India continues to do more prep&pros (often secretly). And, continues to do more work that is patent related (e.g., infringement analysis, searching, etc.) In a lot of the work I do, the big corporations give any work they can to India. This puts enormous price pressures on us.

    Anyway, I don’t think that this blog post or the comments really capture what is the current state of prep&pros, and certainly doesn’t capture the fact that many corporations see the patent system on the verge of collapse. The tipping point is near where corporations will lower budgets 30%.

    So, I suspect what is going on is that the engineers are playing it smart. The writing is on the wall that the Google etc. are burning down the patent system (like anti-trust law was burned down) and that patent law probably doesn’t have a good future.

    1. One way you can tell that there is a big problem is that it is much harder to get an examiner to leave the PTO to come to private practice and there are many more people that are trying to get jobs with the PTO from private practice.

    2. Another aspect of this that is seldom discussed is that the better the job the PTO does the less a commodity prosecution is. The fact is that probably about 1/2 of all allowances are almost random. So, when you review a portfolio and the work attorneys do it is hard to tell the difference between the quality work and the commodity work.

      The fact is high-quality patent attorneys benefit from across the board quality work from the PTO.

  3. Umm–job market is good for prosecutors? Fake news. Pros work handled by outside law firms has contracted–our patent system (and the profession) is in crisis and it is affecting client purchasing decisions internationally. Work has been and continues to move in house, and there is, as suggested in the comments, a race to the bottom in prices. Foreign law firms and companies are and have been developing local U.S. presences and hiring or supplying their own patent agents without the need for hiring U.S.-based intermediary law firms. Perhaps what the profs are seeing are the short term jobs, i.e., the 0-4 year patent agent/associate positions–which makes complete sense in view of the pricing wars and need for firms to market to potential clients, a small number of whom are out bargain shopping this year. Id’ bet job postings these days are one of two types: (1) come work for us and bring your book of business because we’re hurting; or (2) we need a few entry level people to show the foreign law firm that is visiting us all the local patent firms that we have lots of people too and yet can charge the lowest price more than the other guys…. It’s ugly out there right now. This article is, as one of the earlier posters mentioned, self-serving drivel designed to convince would-be patent attorneys that sucking up six figures in debt makes sense right now. Look, sophisticated clients are questioning whether filing and prosecuting patents makes sense right now in view of the current state of affairs that is our anti-patent world for the time being.

    1. I agree Pros Monkey. That was well-said. My bet is that in the next downturn that R&D and patent budgets will get cut by 30% at least. There will be big layoffs in R&D and the patent department.

      What is fake news is that there is no relationship between R&D budgets and the value of patents. They are directly related.

      The way it works is that the farther you get from work that is about the next product that is being developed, the harder it is to get money. Patents help get that money. Think of it is as a line. The person (like I was) that is a product manager can easily get money because I am responsible for building the next product. The researcher that wants to work on something that might not bear fruit for 3 years has a harder time getting money. Etc. It is not hard to understand when you have actually worked in a large corporation.

  4. Some good points are being made in these comments, including how much less lucrative much ordinary pure application prep and prosecution work has become in recent years. However, one countervailing factor to consider [not a factor a young engineer is likely to consider] is in how few years in an engineering job their engineering education will become obsolete, and their salaries will plateau, unless they get an MBA and can move into management.

    1. Engineering> become obsolete in this century> lulz.

      No, more than likely the elites will just dump foreign engineers on the engineering market to depress wages. See open borders, H1Bs etc.

      1. One of the reasons I went into law was because I saw senior engineers getting laid off, replaced with younger engineers with more “up to date” knowledge and way less salary. Similar happenings with coding; how good is COBOL or FORTRAN today?

        Also, engineers tend to get stuck doing one thing, and it becomes difficult to move to something else. Who wants to pay you to train? I got a skill in one area, got laid off, and had job opportunities in that area. But I didn’t like and was tired of that area, thus I went into law instead.

        And if you do get a job at Google, Apple, etc., how much is that high salary going to help in Northern California, where houses are well over 1 million? Better get used to renting with multiple roommates.

        Don’t get me wrong, prep and pros has its own set of issues, many of which are described below; but on average, I’m happier being a patent attorney than I was being an engineer.

        1. “One of the reasons I went into law was because I saw senior engineers getting laid off”

          That’s obviously true. I saw the same kind of thing beginning to happen even in my internship. They didn’t want to expand their repertoire of skills, they’re just wanting to stay stagnant and finish up their last 5-10 years and retire. That’s not the way of the world now.

          “Also, engineers tend to get stuck doing one thing, and it becomes difficult to move to something else.”

          Exactly.

          “Who wants to pay you to train? ”

          That depends on the employer and what they want done.

          ” I got a skill in one area, got laid off, and had job opportunities in that area. But I didn’t like and was tired of that area, thus I went into law instead.”

          Completely reasonable.

  5. “However, despite these positive job prospects, the number of MECC Engineers coming to law school is at near-record lows. The decrease in the number of MECC Engineers enrolled in law schools far exceeds the decrease in non-patent-bar-eligible law students.”

    Sweet! – every Patent Attorney

  6. From the Abstract to the Paper:

    “..the very rationality that leads them to a degree in MECC engineering may be the rationality that diverts them from law school.”

    Based on my experience, this (diversion) is very probable.

    In the UK (and everywhere else in the world except the USA), attorney-at-law and patent attorney are two different professions. The essential attributes of a potential patent attorney are: 1) an unquenchable curiosity about things work and 2) passionate need to explain to others how they work, and 3) the facility with words that one needs, to satisfy that passion. All the rest is secondary. Those reading this who instruct patent attorneys in Europe, how does it seem like to you?

    A small proportion of fresh graduate MECC’s have all the attributes of a first class patent attorney. For those blessed with these attributes, however, the profession of patent attorney is incomparably fulfilling. Conversely, for virtually all fresh graduate MECC’s, being an attorney at law would seem to be impossibly dull, something never in a month of Sundays to be considered as a career path.

    And these days, people take more care, think more rationally, to get into the profession that is right for them.

    That’s my “take” anyway, on the decline in MECC’s at Law School.

    1. these days, people take more care, think more rationally, to get into the profession that is right for them.

      You’ve been reading too many Hallmark cards, MD.

      1. Really? What is a Hallmark card, MM?

        To be honest. I’m quite surprised that yours is the only retort to my post. Judging by their CV’s, US patent attorneys handle all fields through from bio to EE. In Europe, by contrast, patent attorneys draft only in the specialist area of their academic education.

    2. > the profession of patent attorney is incomparably fulfilling.

      I have found it lucrative, but not fulfilling.

      It is a bit masturbatory in that you never get to make anything useful. You just output pieces of paper that no one really looks at or cares about (post-patent office)

      I quit my 1st patent attorney job because I had an existential crisis of not doing anything that mattered. My jobs since then have allowed me to work closer to the business (i.e., general IP/contract work), or work for myself which means that, while each application may be meaningless, the money it provided me was used for something direct and useful.

      1. mom,

        Results may vary and may depend on your own personal attitude.

        As it is, I moved into patent law after careers in engineering and management, and see the work I do as the exact opposite of your take away. The work I do makes the work of others be eminently useful – being protected and thus implemented. That “meaningless paper” is anything but meaningless.

        Maybe it is a function of how we each have gone about drafting that paper….

  7. The article focuses on Ph.D.’s, but MECC engineers can comfortably make a starting salary of $60-80k straight out of college, or $80-100k with a master’s degree (and even more at “big-name” companies like Google). The difference between working a few years in engineering vs. accruing law school debt can be on the order of $250k-500k. In the long run somebody working in big-law can eventually close that gap… but you could be looking at the better part of a decade to do so.

    The article also doesn’t directly address the fact that quality of life is much better at most large engineering companies. Old-school union shops like Boeing or ConEd have great work-life balance and job security, and newer companies like Google and Apple often lure in candidates with flex-time, fully stocked pantries of free food, workout facilities, etc. By comparison, the legal profession has a well-earned reputation for running associates ragged (even patent prosecution associates).

    Unless somebody has a burning desire to work in patent law, it’s really hard to see what kind of motivation there could be for jumping into law school vs. simply grabbing a job in engineering. The only mitigating factor used to be law firms (e.g., Cooley, Ropes & Gray, Fish & Richardson, Wilmer Hale, etc.) training up engineers as “technical advisers ” and patent agents and footing the bill for law school–but my understanding is that these programs have been falling out of favor, which may explain the drop in MECC enrollment in law school as much as anything else.

    1. Yeah, but the firms make up for it by paying the “tech advisors” half what they would pay an associate, so the “tech advisors” would be better off as engineers. So then the firms are figuring out that it is much cheaper to keep them as tech advisors because (1) they get paid less, (2) the firm doesn’t have to pay for law school. Win-win for the firm.

      1. Starting tech advisor positions where I am pay 100-115K, and there is usually an automatic ~10+K raise after passing patent bar. Yearly raises far exceed those in engineering positions. This compares very favorably with starting Ph.D. level engineering jobs…

    2. “In the long run somebody working in big-law can eventually close that gap”

      Yeah, but what about interest on all that difference?

    3. I think the prep&pros is more and more leaving firms like Cooley and Ropes and Gray. Fish only has about 150 prep&pros attorneys. My understanding is that this is not growing at Fish.

  8. The problem with the author’s reasoning is that a lot of people with the background for the patent bar end up hating prosecuting patents. So now they’re out as much as 3/4 of a million dollars in opportunity costs + law school expenses and they are stuck in the declining remaining market for lawyers that she says they should disregard.

    When I was working for a big law firm, we had 90% attrition in the first year alone. People did other practice areas or left the practice of law entirely. Over 7 years to make it to partner, the attrition rate was about 95%.

    I went to law school before engineers had options to make it big at Facebook or Google, when engineering salaries topped out at around $60K. Would I go to law school today? Absolutely not.

    1. Plus, you add in the law firm context the need to increase productivity because of the downward pressure on fees for patent prosecution work, law firms really need to step up their quality of life game. Except for medical emergencies and deaths in the family, I have not taken a vacation in 4 years. When I was an engineer, I worked in a high pressure industry, but the factory had winter and summer shutdowns where we got that time off mostly. Going home at 4:30 or 5:00 everyday was nice too. And quite frankly, patent prosecution isn’t that interesting. I thought it would be an intellectual challenge, but it really isn’t.

      I make nice money and I met my SO in law school, but other than that, in retrospect, I would have stayed an engineer.

      1. “Except for medical emergencies and deaths in the family, I have not taken a vacation in 4 years”

        Man the attorneys I call seem to be off all the time.

      2. “I thought it would be an intellectual challenge, but it really isn’t.”

        Your IQ is probably too high. Plus let’s be honest, the daily everyday stuff isn’t that difficult a challenge.

    2. I agree Still Practicing. I have worked at a AMLAW 50 firm and one of the top three boutique prep&pros firms.

      The workload has continued to grow and the price the corporations pay for the work continues to drop. Every firm that is still afloat is desperately trying to figure out ways to cut costs and improve the efficiency.

  9. Self-serving drivel. Of course law professors at some terrible law school are going to tout their own importance. This article contains so many outright lies that it’s hard to call them all out. The top two are perhaps (1) the claim that no other graduate degree is expected to give all its graduates jobs (wrong–see medical schools and their matching program, which matches all but a negligible number of U.S. MD students with jobs) and (2) that it’s “unfair” to hold law schools accountable for selling worthless degrees because it’s been going on for a long time (this is wrong because the students most negatively impacted are now paying a much higher price with loan debt that will basically never be paid off).

  10. Just from looking at job postings, more companies and law firms are hiring patent agents and technical specialists for patent prosecution. Many posting are for an associate/patent agent.

    Potential law students have to be asking the question “why am I going to law school when I can get the same job without going to law school?” Also, if law firms view associates and patent agents as interchangeable, I’m not sure the partnership carrot is effective.

    1. From my experience as a prosecution associate (BSE/JD) working with patent agents/technical specialists (usually PhD) in a “Big Law” firm, almost none are interested in law school, and the few that are want out of law firms ASAP.

      1. Yeah, the turnover is really high in my experience.

  11. What this tells me is that the economy is expanding giving jobs to American MECC and this is a good thing. MECC’s do not choose law unless they have no choice.

    1. Perhaps “no choice” is a bit strong, but pretty darn close. Explain how the billable hour system works in a law firm and no MECC will take that path.

      1. Yeah you guys really need to end that nonsense.

        1. To that point here, the organization and implementation of strategy for law firms is very much stuck back in the day of guilds.

          However, the amount of inertia is not solely derived from the attorney-side.

  12. Speaking of patent-related myths and jobs:

    Waymo is getting ready to take the same approach. The company has built a real-time command center that allows self-driving cars to “phone home” and consult human operators about the best way to deal with situations it finds confusing. The ability to remotely monitor vehicles and give timely feedback on tricky situations will be essential if Waymo hopes to eliminate the human driver from its cars.

    I love the use of the term “allows” in this context, as if previously (i.e., before this “command center” was built) the technology didn’t exist for “stuck” machine to alert a human so the human could remotely take over.

    But, dang, this sounds like a stressful job. And presumably these operators will be solving the problem using their “guts”, just like people used to solve problems in computer animation.

    LOL

  13. This article leaves out the blatant alternative: just find a job after a BS or MS degree (not Ph.D). With $50-$100K starting salaries without the doctoral degree, why get any doctoral degree at all?

    And any given year, graduates in any one of these fields will be swallowed up by the industry. Now, it is computer vision: link to cnbc.com. A few years ago, it was the startups in Silicon Valley taking computer scientists. Before the oil crash, ME’s were gobbled up by the big oil companies.

    1. Darn, I soo much liked frame-by-frame image processing – okay, maybe with some inter/intra prediction. Is there a book on DVS for Dummies?

  14. Patent bar eligible students (students who possess the appropriate science or engineering degree that makes them eligible for the paten bar and to become patent attorneys) who attend law school are declining precipitously in numbers that far exceed all potential law students in general

    It’s not so much that the legal employment market is so bad (although it is), it’s that the non-legal employment market is so much better for people with STEM degrees. Why would someone take on enormous debt and three years of opportunity cost to get a potentially worse-than-useless degree when they could just go straight into a hot job market?

    According to our research, no other field of study is analyzed, scrutinized, and made to justify itself as law.

    Perhaps, but a law degree is also incredibly expensive and largely useless unless one does, in fact, become an attorney. For many years now law school tuition has increased faster than undergraduate tuition, which itself outpaced inflation. And having a law degree is a net-negative outside the legal employment market.

    Perhaps other fields should be more scrutinized than they are currently are, but I’d say the scrutiny of legal education is entirely justified.

    1. A BSE/MBA combo has much better short-term, and, in all but a few cases, long-term, earning potential compared to a BSE/JD combo.

  15. The article argues that “this fact [The decrease in the number of MECC Engineers enrolled in law schools far exceeds the decrease in non-patent-bar-eligible law students] will have a deleterious effect on the United States economy.”

    That is ridiculous.

    A big nuclear war, on the other hand, might have a deleterious affect but we aren’t supposed to talk about that. After all, some Re pu es might be offended, which is the worst thing ever because they are so very serious and important, especially when it comes to “the economy.”

    1. MM, did you ever think that you could enjoy life just a bit more if you stopped being so hyper-political? I look back at my time in undergrad and law school without remembering any political discussions with anyone in those years. I had no idea whether my colleagues were Democrats or Republicans, and they probably had no idea about my politics, if I had any. Even today, I care a lot more about patent law than I do about any other issue.

      I first recall being shocked politically when I read the Decline and Fall of the Roman Empire by Gibbons. That got me to thinking, and reading. For example, I read a lot of personal histories from people who survived the French revolution. Did you know they spared the lives of pregnant aristocrat women long enough for them to give birth only then to drag them to the guillotine? The central committee executed every person for several Parisian blocks in reprisal for the assassination of one of their members.

      You can rail all you want about conservatives, but the real violence in the world, and the greatest inhumanities, comes as much from the left as from anywhere. And, as must as you LOL about religion, it remains that Christianity was the source of humanism in the Roman Empire that increasing lead to greater and greater rights for slaves and others, and then later, to the Whigs/Republicans repudiation of slavery both in England and the United States.

      1. Rest assured I am enjoying life about as fully as humanly possible.

        Don’t you remember , Ned? It’s angry white pr cks and paranoid rich seniors like you who voted for your orange d00 shbag. Happy people don’t want anything to do with that @ hole.

        1. Rest assured I am enjoying life about as fully as humanly possible.

          Not believable. In the least.

          Albeit, Mr. “6-is-a-genius-because-he-agrees-with-me” is “feeling your swagger” on the political front (only), the amount of cognitive dissonance that you display on a nigh perpetual basis, added to the incessant non-patent item whining, indicate quite the opposite.

      2. “MM, did you ever think that you could enjoy life just a bit more if you stopped being so hyper-political?”

        He’s currently waging a rebellion against the white cis hetero christian patriarchy, so the answer is no.

        “And, as must as you LOL about religion, it remains that Christianity was the source of humanism in the Roman Empire that increasing lead to greater and greater rights for slaves and others, and then later, to the Whigs/Republicans repudiation of slavery both in England and the United States.”

        You misunderstand MM’s and other lefties position on such matters. They’re only interested in freedom, liberty, greater rights, abolition etc. etc. if it’s for their muh victims. They’re not interested in them as abstract concepts for universal application (what christian values underpinned as you brought up). This is because such things being implemented as universal concepts with universal application allegedly just helps (or mostly helps) whitey (as a group, and inclusive of those that are more or less assimilated into “whiteness” as a social construct) cis (as a group) hetero (as a group) males (as a group). Indeed, more and more lefties are being quite open about this. At mythcon this last week a lefty was openly stating such in a debate about such issues. MM himself may not yet understand that such is his position, but he’ll warm to it eventually if he isn’t there already.

        1. To take off on a popular phrase,

          There is an ISM for that.

          😉

  16. I’d switch over from the PTO if they’d let me work from home at least most days of the week (sick parent). You have to say that for public service – our pay may be bad but at least the benefits are great.

    1. Same/similar for me. I have a special needs kid that, well, requires lots of attention. So the flexibility at the PTO is fantastic. I can work morning and evening and take care of my little one during mid-day. Let’s be honest, all the prosecution I did before coming to the PTO could have been done with those hours, too, and just a little bit of planning/coordinating schedules. But such is life.

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