In a recent blog post by Prof. Shamnad Basheer at Spicy IP, he discussed the issue of whether or not patent lawyers should be required to achieve a certain level of training in science/engineering before being admitted to the patent bar. In his discussion, he addressed the question of whether individual academic institutions should be able to limit the number of available spots in their specialized IP programs to those who have completed an undergraduate degree in science/engineering.

I can definitely understand the points provided in support of imposing a limit like the one proposed above, however, I think that the imposition of a limit of this sort would unduly constrain access to the patent bar by many capable and interested individuals. For instance, many law students are completely unaware of the opportunities available in patent law until they are actually enrolled in law school, so imposing a limit on them at such an early stage seems premature and unfair. I believe that a better solution to this age-old debate would be for various law schools to design and implement specialized LLM programs in intellectual property (similar to the one that is set to commence in winter 2010 at Osgoode). Offering a program of this sort would be a great way to ensure that those who are interested in practising patent law (but lacked the foresight to realize this interest during or prior to commencing their undergraduate studies), would not be barred prematurely from doing so. Resources permitting, these LLM programs could be further divided into more specific streams of IP, namely; patents, trademarks, copyright, etc. The patent sub-specialty program could ultimately be broken down into various areas such as chemical, biological, computer/software, mechanical, etc. Of course, the viability of such a program would depend fully on the accessibility of necessary resources, demand from students and the availability of full-time faculty members who possess a requisite degree of knowledge within each niche area. Practitioners could also be recruited to teach in areas where the specific knowledge of full-time faculty is lacking.

Rather than imposing such a drastic limit on students at such an early stage of the game, IP firms could impose the requirement that any new associate (lacking the requisite technical background) who wishes to practice patent prosecution within any specific niche area, must attain an accredited LLM in that area prior to doing so.

However, while I believe that imposing the LLM requirement is certainly preferable to limiting access to the patent bar to lawyers who have completed undergraduate degrees in science/engineering, this solution is not without its defects. The pursuit of higher education is a costly endeavour, both in a monetary sense and in terms of time-spent. By the time they have completed their JD, many law students are so far in debt that the last thing on their mind is continuing legal education at the masters level. Therefore, imposing a differential graduate education requirement on non-science/engineering grads that is both costly and time-consuming may act as an effective bar in and of itself.