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Intellectual Property, Commerce, & Technology

Pierce Law Publications & Papers

THE PLACE OF INTELLECTUAL PROPERTY TEACHING IN THE CURRICULA OF UNIVERSITIES AND TECHNICAL INSTITUTES - 1999

by Prof. William Hennessey

1. INTRODUCTION

In considering the place for intellectual property teaching in the curriculum of universities and technical institutes, one must seek an accommodation between the traditions of university teaching both of law and of technology, which in the past granted little recognition to the importance of intellectual property studies, and developments in recent years which are challenging those traditions. Among the latter are rapid changes in technologies (such as those in the computer, media, telecommunications, biotechnology, and environmental industries) . Commercial innovations in these technologies are perceived by most (if not all) authorities to be dependent on adequate and effective intellectual property protection. Second, there is the challenge of global encroachments on national borders and national sovereignty, abetted by the global technological revolution and expanded international trade in goods and services. These developments and influences have placed great strain on the territorial principles which form the basis of law teaching in general and intellectual property law teaching in particular in all countries -- both in the developed and the developing world. As a result of these developments, the place for intellectual property teaching in institutions of higher education has changed radically in recent years.

What is the place of intellectual property teaching in universities and technical institutes today? A proper consideration of the question must begin with an understanding of the traditions of university legal education and how the challenges to those traditions mentioned above have been met. The experience of the United States may serve an an illustration.

II. THE CURRENT SITUATION WITH REGARD TO THE TEACHING OF

INTELLECTUAL PROPERTY IN UNIVERSITIES AND TECHNICAL INSTITUTES IN THE UNITED STATES IN THE CONTEXT OF THE GENERAL STRUCTURE OF U.S. HIGHER EDUCATION

In the United States, up until very recently, few universities and technical institutes offered training of any kind in intellectual property, outside of the law schools. The reasons are many and varied. One reason why intellectual property was not taught in the undergraduate curriculums of the universities was that training in legal subjects -- especially in an extremely complex legal field such as intellectual property -- had been relegated entirely to the graduate professional schools -- particularly to the law schools, which have remained physically and institutionally separate from other disciplines of higher education. Even today, few graduate schools other than law schools offer courses in intellectual property.

In the United States, what is called "higher education" or "post-secondary education" takes place after 12 years of primary and secondary education. Traditionally, primary education takes 8 years and secondary education requires an additional 4 years. Following completion of secondary school, students who go on to higher education enter what is called the "undergraduate" curriculum in universities and technical institutes. Within

the large universities, education is divided into the "undergraduate" curriculum and the "graduate" curriculum. The term "college" is generally used to describe an institute offering the undergraduate curriculum. Sometimes, a "college" is an independent educational institution. At other times, an undergraduate college is part of a larger university which also has one or more graduate or professional achools under the same administrative umbrella.

Government-funded and Private Institutions In general, institutions of higher education in the United States may be funded and operated by state governments or privately. In the case of state colleges, universities, and technical institutes, salaries are paid by the state and professors are state employees. State governments also pay for the construction and maintenance of physical facilities. The costs of attending a state university are comparatively low (approximately one-half to one-fourth the cost of attending a private university), and facilities are generally quite good. There are no longer any state universities in the United States where students may attend for free. (The University of California system was one of the last systems in the United States to offer free education to state residents. The system of free higher education in the United States has been discontinued for budgetary reasons.) However, state universities and technical schools can

be severely impacted by cuts in government funding, and have been so in recent years. The federal government of the United States has not established any national universities or technical institutes. Such government-funded institutions of higher education as exist have all been established by individual states or municipalities. Examples of state universities are the University of California, the University of Michigan, the State University of New York, and the City University of New York. Every state in the United States has a state-operated university.

Private universities and other private teaching institutions in the United States are generally operated without any intervention by the state. The majority of universities and technical institutes in the United States are privately operated. Most are "not-for-profit" institutions; that is, the funds collected from student tuition payments and from charitable endowments are used to pay for salaries and physical facilities, with the entire remainder reinvested for the benefit of the institution. In exchange for maintaining not-for-profit status, private universities and technical institutes are granted considerable exemptions by state governments from taxation of the properties they own or of the charitable gifts donated to support their activities. In addition, many private institutions receive generous grants from federal government agencies to conduct teaching and research. For example, the

Massachusetts Institute of Technology receives over $250,000,000 from the United States government each year to conduct research. Some schools in the United States which appear by name to be public institutions are actually private: for example, Massachusetts Institute of Technology, The George Washington University, New York University, and the University of Chicago are all private, not-for-profit institutions which are not directly or indirectly controlled by any state agency.

Independent Graduate Institutions Although most graduate programs are affiliated with undergraduate programs in large universities, some graduate schools are entirely independent. Examples of private, independent graduate and professional schools are Jefferson Medical College in Philadelphia, Rockefeller University in New York City, Claremont Graduate School in California, John Marshall Law School in Chicago, and Franklin Pierce Law Center in New Hampshire. None of these schools offer programs in

undergraduate curriculum and none are affiliated with universities. Students accepted into these schools must have already received a Bachelor's degree from another university or technical institute before they can enroll.

Undergraduate Curriculum in the U.S.A. The undergraduate curriculum is traditionally 4 years long, and leads to the award of the Bachelor's Degree. The Bachelor's Degree in the United States is awarded in Liberal Arts (Business, Economics, Language and Literature, History, Social Science, Art, Mathematics, etc.), in the Natural Sciences (Biology, Chemistry, Physics, etc.), and in Engineering (Mechanical, Electrical, Chemical, etc.); however, the Bachelor's degree is not awarded in Law in the United States. A student must receive a Bachelor's degree in some other subject before being admitted to the

study of law. The only institutions where intellectual property has been taught are graduate schools of law. Therefore, there has traditionally been no intellectual property "curriculum" in most U.S. universities and technical institutes for undergraduate students..

Graduate Curriculum: Academic Programs Upon completion of the undergraduate curriculum and receipt of the Bachelor's Degree, students in the United States may continue on in the graduate curriculum. Graduate programs are generally located in the universities along with undergraduate programs. The graduate curriculum is divided into [1] academic programs to prepare students for careers in teaching and research, leading to the award of

the Doctor of Philosophy (Ph.D.) and [2] professional programs. The professional programs are primarily concentrated in law, business and medicine. Because intellectual property traditionally was strongly associated with law rather than with science or business, there are no academic programs in intellectual property in the United States other than "academic law" programs in the law schools. Therefore, it is impossible to enroll in a

Ph.D. program in intellectual property studies in the United States because there are virtually no schools which offer the Ph.D. degree in law in the United States.

Graduate Curriculum: Professional Programs Medical schools offer the professional degree of Doctor of Medicine (M.D; and in order to practice medicine in the United States, the M.D. degree is required. Business schools offer the Master or Doctor of Business Administration (M.B.A. or D.B.A.). The majority of M.B.A. graduates assume management positions in corporations. D.B.A. graduates generally become teachers of business in graduate business schools and in business programs in undergraduate institutions. Textbooks on business law for business students tend to devote little time or space to intellectual property studies. A survey of business law textbooks for undergraduate and graduate business students done recently at Franklin Pierce Law Center shows little attention to intellectual property matters in general textbooks in business law. Where such textbooks devote a few pages to intellectual property issues, rarely does the discussion go beyond a general consideration of trademark registration requirements. Because of advances in the biomedical sciences, interest in intellectual property is growing among faculty and students at medical schools, where significant research in biotechnology, diagnostics, and therapeutics is being conducted -- research which may lead to significant social benefits by reducing both the economic costs of illness and medical treatment but the non-quantifiable costs of human suffering. However, to this writer's knowledge, no courses in intellectual property are offered at any U.S. medical school.

In the past, colleges of engineering and technical institutes in the United States rarely offered courses in intellectual property. Colleges of engineering generally award Bachelor's, Master's, and Ph.D. degrees in engineering. Colleges of Engineering are sometimes called "technical institutes"; however, this appellation can be deceiving. For example, the Massachusets Institute of Technology (MIT) is actually a large private university with an undergraduate and graduate curriculum in arts as well as sciences. The Sloan School of Business at MIT, awarding the Master of Business Administration [M.B.A.]

and Master of Managment in Technology [M.O.T.] degrees, The latter is an

illustration of the growing trend toward institutional convergence between

different academic disciplines. One practical reason why colleges of

engineering and technical institutes in the United States rarely offered

courses in intellectual property was that there was almost never any member

of the faculty who was qualified to teach the subject. A second reason was

that the engineering curriculum at most schools of engineering and technical

institutes is very concentrated and focused on acquisition of the knowledge

professional skills needed to become licensed as engineers. Since none of the

professional engineering organizations required an understanding of

intellectual property as an area of knowledge within the discipline of

engineering, intellectual property was not taught at such technical institutes.

Basic and Advanced Professional Programs in Intellectual Property Law

As has been mentioned above, students who wish to study law in the

United States must receive a Bachelor's degree in some other subject before

entering law school. Law schools award the Doctor of Law (Juris Doctor or

"J.D.") degree as a general professional degree, and most states of the United

States (48 out of 50) require a person to obtain the J.D. degree before he or she

can be admitted practice law. Thus, the J.D. degree is the "basic" law degree in

the United States. Some law schools also offer "advanced" law degrees for

persons who have already received the J.D. Examples of "graduate law"

degrees are the Master of Laws (LL.M.), Master of Comparative Law (M.C.L.)

and Doctor of Juridical Sciences (S.J.D.) in specialized subjects (international

law, corporate law, tax law, etc.). The majority of both lawyers and law

professors in the United States possess only the basic law degree, the J.D.

degree. Only a minority of U.S. law professors have advanced law degrees,

although an increasing number also have academic credentials in other

subjects such as technology, economics, and international relations.

Curiously, until recently, few law schools offered advanced programs in

intellectual property. In the United States, only five law schools offer the

Master of Laws degree (LL.M.) in intellectual property law: Franklin Pierce

Law Center, The National Law Center of The George Washington University,

New York University, John Marshall Law School, and the University of

Houston Law Center in Texas. While three of these programs are old and

well-established, the programs at Franklin Pierce and the University of

Houston are relatively new. Furthermore, of the 175 remaining accredited

law schools in the United States, only a few offer a more than one or two

courses in intellectual property for J.D. students. Among the latter are

Chicago-Kent Law School, Dickinson Law School, the University of Baltimore

Law School, Georgetown Law School, and George Mason Law School, In

addition, Franklin Pierce Law Center offers an advanced interdisciplinary

degree in intellectual property [M.I.P.] for law and other graduates, which is

discussed below.

The reasons for a lack of emphasis on intellectual property teaching in the

traditional law school curriculum are several. First, because of the fact that

in the United States, an attorney who wishes to practice patent law is required

by government regulation to have training in a scientific or technical subject,

this area of legal practice was not available to most students in law, who

tended to have undergraduate degrees in political science, government, or

history. As a result, the law professors in the law schools, who rarely had

such technical training, were also unfamiliar with patent law, if not

downright suspicious of the ability of technically trained patent lawyers to

deal with general legal questions of broad scope and import. Patent lawyers

were (and still are!) often perceived by general legal practitioners as legal

technicians or specialists to be consulted for legal advice narrowly, and only to

draft patent applications or to construe minutiae of the patent law. Since

patent law was not taught in the law school curriculum, persons with

technical training who attended law school were required to wait until they

began to work in a law firm before they could receive on-the-job training in

patent law. There are many so-called "continuing legal education" or "CLE"

courses in the United States in intellectual property subjects. Until recently,

such courses were offered primarily by professional associations rather than

law schools. Recently, a number of law schools have begun to offer "CLE"

programs to practicing lawyers in intellectual property subjects. However,

there programs are not available to persons who are not lawyers.

Second, a large number of patent practitioners were formerly patent

examiners who chose to attend law school to become patent attorneys. (The

term "attorney" and the term "lawyer" mean the same thing in the United

States.) Because former patent examiners were thought to already understand

patent office procedures, it was perceived (often incorrectly) that such

individuals did not need academic training in intellectual property. Such an

attitude furthered the perception that intellectual property was an

inappropriate topic for the general law school curriculum.

Third, in the United States, the practice of trademark law was traditionally a

preserve of the patent attorneys who deal regularly with the Patent and

Trademark Office. There are no "trademark agents" who are not also

attorneys in the United States. Even today, many general legal practitioners

are under the misconception that a lawyer must have technical training to

practice trademark law in the United States.

Finally, the practice of copyright law, when not practiced by patent and

trademark attorneys, was generally the preserve of lawyers who dealt with the

literary, publishing, and artistic communities. Copyright law was perceived

as a small and relatively unimportant area of practice for the general legal

practitioner.

As a consequence of the large gap between the traditional law school

curriculum and intellectual property teaching, on the one hand, and between

general legal practice and intellectual property practice, on the other,

practice in specialized firms separate from general practice law firms. General

practitioners remained little aware of the nature of intellectual property

practice until recently. These trends, fortunately, have begun to change.

III. THE GENERAL TREND TOWARD INTEGRATION OF INTELLECTUAL

PROPERTY STUDIES INTO THE CURRICULUM OF UNIVERSITIES AND

TECHNICAL INSTITUTES

Intellectual property training in U.S. law schools The challenges of rapidly

changing technologies and increased international cooperation in intellectual

property matters have had a genuinely positive impact on intellectual

property training in U.S. law schools. In 1990, the Association of American

Law Schools [AALS] established an Intellectual Property Committee to raise

the general familiarity of law school professors with intellectual property

issues. The most recent issue of the "AALS Directory of Law Teachers" in the

United States lists almost 300 law professors in the United States who now

teach intellectual property subjects. While it is quite difficult for general law

faculty members unfamiliar with the time-honored and established traditions

of intellectual property studies to become familiar with intellectual property,

the trend is toward more teaching of intellectual property in the law schools.

In addition, because general law professors bring a fresh perspective to the

subject of intellectual property scholarship, the study of intellectual property

gains prestige in and utility to the general study of law. Unfortunately, few

law schools which have a resident faculty member who teaches intellectual

property expect that faculty member to devote themselves full time to the

study of intellectual property. Rarely does a law school have more than a

single resident faculty member who teaches intellectual property. Franklin

Pierce Law Center has the largest resident intellectual property faculty among

U.S. law schools. Currently, five full-time professors teach primarily courses

in intellectual property at Franklin Pierce. The University of California Boalt

Hall School of Law has three. In the near future, the number of law faculty

positions in intellectual property in the United States is likely to increase

dramatically.

A second gratifying trend is that an increasing number of intellectual property

practitioners in the United States with a wealth of experience in intellectual

property practice have entered the teaching profession, from "adjunct"

professors who continue to practice law and devote themselves to teaching

one or two courses to full-time tenured professors of law in the general

faculties of law schools. Professional associations such as the American

Intellectual Property Law Association [AIPLA], the International Trademark

Association [INTA], the Copyright Society of the United States,and the

Licensing Executives Society [LES] also have established education

committees to study ways of improving the teaching of intellectual property

in the United States and elsewhere. One of the roles of these professional

committees is to encourage practicing intellectual property attorneys to

become interested in teaching intellectual property as "adjunct" professors in

law schools and, increasingly, in technical and business schools as well.

Impact of Technological Changes on the Substance of Intellectual Property

Teaching and Research in U.S. Law Schools

Because of the expansion of the economic sectors the growth of which is tied

to intellectual property protection (such as computer technology,

telecommunications, biotechnology, and environmental technology), the

teaching of intellectual property subjects in U.S. law schools has developed

rapidly over the past decade. Certain law schools have established new

specialized scholarly journals to study intellectual property issues. This is a

very welcome trend, especially since these rapid-growth technologies are

perceived by some legal scholars to be inadequately served by the traditional

concepts and categories of intellectual property (such as patents, trademarks,

and copyrights). New issues such as intellectual property protection for

information in computer databases, for collections of genetic information and

"biodiversity," for electronic information networks, and for new digital

telecommunications and media technologies are now receiving attention

from eminent legal scholars. Furthermore, as the economic importance of

intellectual property has grown, there is a growing recognition within the law

faculties that all lawyers who deal with business, commercial, and

technological clients must not merely be familiar with intellectual property

concepts, but well-versed in them. The central role of information,

technology, and "know-how" to the modern competitive business in the

global economy requires heightened awareness of intellectual property

among all members of the commercial legal community. Therefore, it is

receiving increased attention among law faculty.

Cooperative and Interdisciplinary Programs between the Law Schools and

other branches of Universities and Technical Institutes

Another recent trend has been the growth of cooperative and

interdisciplinary programs between intellectual property professors and

practitioners in numerous arenas. As an example, a paper entitled "Teaching

Intellectual Property Law and Practice: Business School and Law School

Cooperation" by Professors Fryer and Herron of the Schools of Law and

Business at the University of Baltimore was presented to the 1993 Annual

Meeting of the International Association for the Advancement of Teaching

and Research in Intellectual Property [ATRIP]sponsored by WIPO in July 1993.

Colleges of engineering are also beginning to offer programs for engineering

students in intellectual property law. In order to do so, it is necessary to find a

faculty member qualified to teach such a course. This has become an easier

task than in the past, as faculty members of technical institutes become more

knowledgeable in intellectual property law and practice. For example, Dr.

Steven Grossman, who is Professor of Chemical Engineering at the

University of Massachusetts-Lowell and is also a practicing intellectual

property attorney, offers a series of one-day seminars to engineering students.

According to Professor Grossman, a similar course is now offered at Columbia

University's College of Engineering in New York. Professor Edward

Coleman of Franklin Pierce Law Center also teaches a course in patent law at

the Worcester Polytechnical Institute in Worcester, Massachusetts.

Master of Science in Management of Technology and Related Master's

Degrees

Schools of law, management, and technology have begun establishing

programs in intellectual property and technology transfer. The Center for

Entrepreneurship and Innovation at Franklin Pierce Law Center, under the

leadership of Professors Homer Blair and Karl Jorda, established the first

interdisciplinary degree in intellectual property, the Master of Intellectual

Property (MIP) degree, in 1986. The MIP degree is not a law degree but an

interdisciplinary degree which brings together participants with training in

science and technology, business, and government administration, as well as

those with training in law. No other law school offers such a program;

however, tin addition to the program at Franklin Pierce, he following

programs have been established at schools of management and engineering.

Master Degree Programs

Master of Intellectual Property Program

Franklin Pierce Law Center

Georgia Institute of Technology

Master of Science in the Management of Technology Program

MIT/ Sloan School of Management

Master of Science in the Management of Technology Program

National Technological University

Master of Science in the Management of Technology Program

Oregon Institute of Science & Technology

Master of Science in Management in Science and Technology

Polytechnic University

Master of Science of Management of Technology

Portland State University

Master of Science in Engineering Management

Rensselaer Polytechnic Institute

Technology & Management MBA

Stevens Institute of Technology

Master of Science of Technology

University of Minnesota

Master of Science in the Management of Technology

University of Phoenix

MBA in Technology Management

University of Texas at Austin & IC2 Institute

Executive Master of Science in Commercialization of Science and

Technology

University of Texas at San Antonio

Master of Technology Management

University of Waterloo

Master of Applied Science - Management of Technology

Washington University in St. Louis

Master of Science in Management of Technology

Wheeling Jesuit College

Master of Science in Commercialization and Technology Transfer

The National Technical University of Fort Collins Colorado program offers

such courses as Technology and Economic Analysis, Manufacturing Systems

and Technology Strategy, Managing and Leading Technical People, R&D

Management, Taking Technology to Market, Strategic Management of

Technological Innovation, and Analysis of Emerging Technologies.

glory

In the trademark area, the Information Services Committee of the

International Trademark Association [INTA] is conducting a number of

programs to increase awareness of the importance of trademark law in law

schools and universities both in and outside the United States. Based upon

INTA surveys, a number of two-year "junior colleges" have begun to offer

courses in paralegal studies, some of which prepare students for careers in the

growing area of trademark prosecution. The Education Committee of INTA

has prepared materials for basic education in trademark law and practice

which are available for use by the public.

The Innovation Clinic at Franklin Pierce Law Center, under the direction of

Professor Thomas G. Field, has prepared a series of informational pamphlets

on patent, trademark, and copyright law which are distributed by

organizations including the United States Department of Commerce,

Summer Intellectual Property Training Institutes for Law Students and Non-

law Students

Summer Intellectual Property Training Institutes for both lawyers and non-

lawyers have been offered by Franklin Pierce Law Center since 1987. In 1996,

120 law students, university and corporate technical people, business

executivs, practicing attorneys, and government officials attended this

program. A new summer institute has been established at the University of

Washington-Seattle and another at Santa Clara Law School in Santa Clara,

California under the direction of the eminent scholar of U.S. patent law,

Professor Donald Chisum. These programs are open to both lawyers and

non-lawyers who have technical or business backgrounds. The modern trend

is for intellectual property to be viewed increasingly as an area of interest to

persons with training and business and technology as well as those with

training in law. It is important to create an atmosphere for intellectual

property teaching in which both lawyers and non-lawyers in technical,

business, or government positions can participate together. In this way, the

theory and practice of intellectual property can be integrated.

Another important advantage of such summer programs is that students

from universities and technical institutes which cannot devote a faculty

member to teach intellectual property can take advantage of well-taught

courses by professional intellectual property teachers. This, of course, is no

substitute for a more general integration of intellectual property teaching into

the curriculum of such institutions. Many participants in interdisciplinary

programs who are not lawyers can become qualified to teach intellectual

property subjects themselves in business and technical programs.

Cooperation between Universities and Technical Institutes in Different

Countries in Improving the Teaching of Intellectual Property A further

development is the increasing number of programs which encourage

cooperation between educational institutions in different countries

concerning the teaching of intellectual property. Foremost among these is the

International Association for the Advancement of Teaching and Research in

Intellectual Property [ATRIP], founded under the auspices of WIPO in 1981.

The ATRIP meeting each year is the premier forum for teachers of

intellectual property in universities and technical institutes from around the

world to develop mutual understanding and to improve the general level of

intellectual property teaching in developed and developing countries. In the

ATRIP meetings, teachers from many different cultural and political systems

can share insights and commiserate about common problems. The level of

cameraderie among intellectual property teachers from various countries is

greatly enhanced by such gatherings. Every participant in such meetings

returns to the classroom with fresh insights on how to teach intellectual

property more effectively.

A cooperative program was established between Franklin Pierce Law Center

and the International Intellectual Property Training Institute [IIPTI] in

Daeduk, Korea. IIPTI is not a law faculty but an institute devoted to the

training of persons with technical or other background in intellectual

property. Many faculty members from IIPTI have engaged in scholarly

exchange programs at Franklin Pierce Law Center and several Franklin Pierce

faculty members have visited IIPTI as well. One professor from Franklin

Pierce has visited Plovdiv University in Bulgaria in 1992 and one professor

from Plovdiv University visited Franklin Pierce in 1993.

Another interesting development is the offering of courses in the United

States by scholars from other countries in intellectual property. Several

researchers from the Max Planck Institute for International Patent, Copyright,

and Unfair Competition Law in Munich have offered courses at U.S. law

schools, including John Marshall Law School and Franklin Pierce Law Center.

Courses in international and comparative intellectual property are regularly

taught by scholars from other countries, including Germany, Spain and

Switzerland. It is to be hoped that more U.S. law schools will establish

scholarly exchange programs in intellectual property with foreign

universities and technical institutes in the near future. The American

Association of Law Schools [AALS] is also engaged in developing a program

of scholarly exchange with law professors in different countries.

The recent trend in higher education in the United States is that artificial

barriers between the disciplines of civil law, commercial law, business

administration, public administration, technology management, and finance

that had been allowed to persist because of entrenched interests of constituent

groups are crumbling rapidly. Internationally, despite political and cultural

differences, the world economy is rapidly becoming integrated. Intellectual

property is a field of study which requires an understanding of and facility in

dealing with all these areas. Therefore, it is suggested that intellectual

property teaching should moving rapidly into more and more areas of the

curriculum of universities and technical institutes in engineering and

business courses. At the same time, the law schools should remain the major

source of knowledge and of innovation in intellectual property teaching and

research.

In the modern "value-added" concept of organization, knowledge and

expertise from diverse sectors, when effectively combined, increase the

capacity of economic entities to adapt rapidly to changing circumstances in

local and distant markets. Organizations which maintain rigid separations of

disciplines will be unable to compete effectively in such an environment.

Investment in human resources (education) is as important -- if not more

important -- than investment in research parks, laboratories, and

manufacturing facilities. Effective organization requires effective cooperation

between business, academic, legal, technical, and government sectors to create

intellectual property protection which adds value to the contribution of all

participating sectors. Effective intellectual property teaching -- whether in law

faculties or in technical or business school environments -- is emerging as a

key component in adding value to the fruits of human creativity, innovation,

and organization, thereby promoting a more general social well-being.

IV. DEVELOPMENT OF CURRICULA AND TEACHING MATERIALS

ON INTELLECTUAL PROPERTY

The development of curricula and teaching materials on intellectual property

is a critically important aspect of an effective teaching program. It is not

something which can be done overnight. As in the case of an inventor

attempting to reduce the concept of an invention to practice, a writer

struggling over the creation of a work of literature, or an entrepreneur

attempting to establish a successful business from nothing, we who teach

intellectual property can learn how to develop curricula and teaching

materials only by trial and error, constant experimentation and inquiry, and,

inevitably, by making many mistakes. Also, the development of curricula

and teaching materials on intellectual property at one institution must be able

to profit by the experiences, successes, and failures of other institutions who

have gone before in developing such curricula and teaching materials. This

paper is an attempt to describe the process of the development of curricula

and teaching materials on intellectual property over the course of 20 years in

a United States law school. Among the important considerations in

development of curricula and teaching materials on intellectual property are

the scope of the careers for which students are being trained,the educational

level and background of students, the special characteristics of the law and

practice of intellectual property in a particular country, various methods of

teaching the subject matter, the availability of seasoned and knowledgeable

intellectual property teachers, and the nature of the intellectual property

subject matter,

CONSIDERING THE SCOPE OF THE CAREERS FOR WHICH STUDENTS OF

A COURSE ON INTELLECTUAL PROPERTY ARE BEING TRAINED

A primary consideration in developing curricula and teaching materials on

intellectual property is the scope of the career paths for which students in the

course of study are being trained. The subject area of intellectual property is

very broad. Patents, copyrights and neighboring rights, trademarks and unfair

competition, trade secrets, and technology transfer (licensing) are among the

major areas of study. Skills which may be critical for one career path may be

less useful for another. Study of one subject may be influenced by whether or

not a student has been exposed to other subjects. In general, the potential

careers for students of intellectual property may be divided into several areas.

The first such area, of course, includes future intellectual property lawyers

and legal workers. As used here, "lawyer" and "legal worker" are not

synonymous terms. In many countries, the term "lawyer" refers to a person

who is admitted to represent parties before the courts. Oftentimes, there are

many graduates of law faculties who do not become admitted to practice

before the courts but who nonetheless do engage in legal work. Most

specifically, in the area of intellectual property practice, there are legal workers

who perform such services as representing clients to apply for patent or

trademark application, assist lawyers in preparing documents for use in court

proceedings, or assume positions in government agencies as trademark

examiners, legal advisors to patent or trademark offices, international trade

agencies, or government prosecutors involved in enforcing intellectual

property rights, etc.

A second core group of potential participants in intellectual property courses

are persons with training in technology who have no legal training. Primary,

of course, are prospective patent examiners. In the United States, less than

one-half of all patent examiners have any training in intellectual property

law. This is true in most other countries as well. Patent examiners are

chosen for their technical skills and are trained by their patent offices to apply

the legal standards of utility, novelty, and inventive step or nonobviousness

through training courses usually conducted within the respective offices. In

addition to patent examiners, however, there are also the many engineers

and technical people who may find careers working closely with patent

attorneys in law firms or in patent departments in corporations who assume

primarily responsibility for drafting patent applications. Rarely do these

technically trained individuals undergo significant substantive training in

intellectual property.

A third group of potential participants in intellectual property courses are

persons in government service who have not received formal training either

in law or in technology. Most such individuals have a university education

in liberal subjects such as languages, public administration and public policy,

or political science.

Preparation of curricula and teaching materials on intellectual property must

take the career goals of all these potential recipients of intellectual property

education into account.

CONSIDERING THE EDUCATIONAL LEVEL AND BACKGROUND OF

STUDENTS OF A COURSE IN INTELLECTUAL PROPERTY

A second consideration when developing curricula and teaching materials on

intellectual property is the level of education and the subject matter of such

education for those who will be the students in the course. In most civil law

countries, students of law are university students who have not yet received

the Bachelor's degree. In the countries which have adopted the British

system, including Canada and Australia, the study of law is usually integrated

with other courses in the university curriculum in a five-year program. By

contrast, in United States and India, for example, the program in law is a

three-year program which does not begin until after the student has already

acquired the bachelor's degree. Thus, the level of education of a first or

second-year university student is quite different from that of a university

graduate.

In the United States, most, but not all, intellectual property curricula and

course materials are developed for use by students at the post-university

graduate level -- primarily in law schools. Thus, no matter what the major

area of undergraduate study, a program has been developed for general

applicability to students no matter what the subject area of their univerisity

degree. Law graduates and technology graduates are at a similar level of

educational development, and should be able to enroll in courses side by side

without undue frustration. In the eight years of experience with graduate

students with backgrounds in law, technology, business, languages, and public

administration taking classes together, while there have been certain

differences between the expectations of the various disciplines, this is more

than compensated for by the degree to which diverse viewpoints expressed by

differently-prepared participants contributes to an overall understanding of

the materials.

Programs can be offered to university students in legal or technical studies as

well, but must take into account the capabilities of the class of individuals

enrolling in the courses. For example, it seems likely that undergraduate

students in law and others trained in technology could conceivably take the

same courses in intellectual property, it is to be expected that the level of

frustration caused by different expectations would make such a course more

difficult than at the graduate level.

CONSIDERING OF THE RELATION BETWEEN THE EDUCATIONAL AND

INTELLECTUAL PROPERTY SYSTEMS IN A PARTICULAR COUNTRY

AND OF VARIOUS METHODS OF TEACHING INTELLECTUAL PROPERTY

SUBJECT MATTER

A third important consideration in development of curricula and teaching

materials on intellectual property concerns the special characteristics of the

educational and intellectual property systems in a particular country. For

example, in countries which have followed the British system of law -- and

particularly in the United States -- the "case method" of teaching is prevalent.

1. The "Case Method" Under the "case method", the principles and

application of intellectual property law are taught by having the students read

actual judicial and administrative decisions and then requiring them to

abstract the relevant legal principles from the way the substantive standards

of law were applied by the court to the specific facts of the case. Use of the

"case method" in intellectual property education may be less appropriate in

civil law jurisdictions. For one thing, court opinions on specific cases in such

jurisdictions are rarely available. Where such decisions are available, they

carry no precedential effect. Therefore, use of the "case method" of teaching

intellectual property may be inappropriate for many countries and lead

students more to frustration than to enlightenment.

Nevertheless, for example in teaching admiralty law, the "case method" is

used throughout the world. This is because the applicable legal principles

have generally been adopted from the British system. Moreover, the

European Court of Justice has adopted a modified version of application of

legal precedent which makes the "case method" useful for understanding its

jurisprudence -- including in intellectual property cases. Therefore, the extent

to which the "case method" could be extended to the study of both European

and United States intellectual property law requires further examination and

reflection.

2. The Problem-solving Method In the United States, the "case method" of

teaching is predominant; however it is not the only method of teaching. A

second method of teaching is the "hypothetical problem" approach. The

instructor crafts a hypothetical problem and asks the students to craft a

solution to the problem which correctly analyzes the facts of the problem and

correctly applies the applicable intellectual property law. Sometimes the

problems are interspersed with relevant readings, and the hypothetical

problems provide comparatively brief situations which are intended to make

the purpose and relevance of the readings clear. The clear advantage of the

problem-oriented approach over the "case method" is that the facts of real

cases are very messy. Often, several disparate and perhaps unrelated areas of

law may be implicated an a single set of facts. In their attempts to analyze

these facts, several legal considerations may overlap, which leads the student

to more frustration. Therefore, in particular situations, the problem-solving

method may be more appropriate. On the other hand, the strong argument

in favor of the "case method" over the problem-solving method lies in that

very factual complexity and frustration experienced by the students: that is,

upon completion of the course, the student will not be inexperienced in

facing the fact that real-life legal situations are always messy and difficult to

solve. Problem-solving is a good approach to evaluating the student's

understanding of the materials covered in any course in intellectual property.

3. The Simulation Method The simulation method attempts to teach in

a classroom atmosphere the same skills and thought processes which are

taught to an apprentice by a mentor in more traditional educational systems.

In the modern world, students often have little opportunity to locate a

mentor actually in the practice of intellectual property. Moreover, because of

the strains and pressures of competition in both developed and developing

societies with respect to the efficient use of time, experienced practitioners are

often so busy with their work that they have little time to devote to a young

apprentice. A resolution of the problem of the lack of availability of

experienced mentors for the growing flock of potential apprentices is to

conduct a class in which several or many students are given the same exercise

by the instructor, who explains to them how the problem should be solved.

The simulation method is related to the problem-solving approach, but is

more effective where actual skills are being taught and the correction process

consists in gently and persistently monitoring the acquisition of skills by the

student so that the student can develop some of the natural instincts and

intuitions of the master. A particularly fruitful application of the simulation

method is useful in teaching patent prosecution skills. Students can be given

a patent specification with no claims attached and asked to write a set of

claims specifically setting forth the content and scope of the invention. The

master-teacher then can assume the role of the patent examiner and "reject"

the student's claims. Perhaps the students can be provided with references to

the prior art which make the invention according to the claims

"unpatentable", and then request the student to amend the previously drafted

claims to overcome the "examiner's" rejection. The simulation method is

used to teach patent prosecution skills at Franklin Pierce Law Center. It is can

be used to teach trademark prosecution skills.

4. The Doctrinal Method A fourth method is to present the student with the

applicable legal standards and to illuminate the doctrine with an explication

of how the law is applied. The clear advantage of the doctrinal method is that

the principles of intellectual property can be explained with great clarity and

theoretical precision. Secondly, students absorb materials much more readily

when they are presented in a straightforward and logically organized way.

However, there are two related disadvantages to the doctrinal approach --

particularly for students who must leave the academy to apply the knowledge

learned to actual situations in the real world. One is that students have not

been taught to analyze or identify the true nature of the legal issue present in

a complicated factual situation. Students may understand the substance of

the intellectual property law but may not be adept at identifying the specific

factual situations in which the law should be applied. Second, because of

rapid changes in the subject matter of intellectual property protection,

particularly in connection with such rapidly-developing areas as

biotechnology, computer technology, information databases,

telecommunications and electronic media, and environmental technology,

the subject categories of the prior law may have little relevance to new areas

of potential intellectual property subject matter. Doctrinal purity has its price.

Furthermore, giving students an examination which asks them to recite

doctrine is not conducive to understanding the content of intellectual

property or how to apply intellectual property principles. Rote memorization

of doctrine is not a suitable method for teaching intellectual property.

5. The Clinical Method A final method sometimes used to teach

intellectual property is the so-called clinical method. In the ideal clinical

method, the approach used is identical to the traditional master-apprentice

approach mentioned above; however, the students work on real client

problems rather than simulations. Students are allowed to observe actual

interactions between inventors and patent attorneys and assist the master to

provide legal services at low cost. The clinical method also can take place in a

teaching institution, in which actual persons with actual intellectual property

problems seek the advice of the master-mentor while the actual services are

provided for by the apprentice-student. At all times, of course, the instructor

must maintain adequate supervision over the work of students or else the

persons seeking assistance may suffer. Moreover, this method only works

effectively with a very small number of students in a situation where services

can actually be provided. At Franklin Pierce Law Center, the clinical method

is used at present to teach intellectual property through an "Inventors

Assistance Program" conducted in cooperation between the Law Center and

the Department of Economic Development of the State of New Hampshire.

The use of the clinical method is contemplated in connection with a small

"master class" to provide certain parties with assistance with their intellectual

property assets which do not implicate the rights of third parties. A great

disadvantage of the "clinical method" is that in order to be effective, only a

very small number of students can be involved. Despite the disadvantages of

the clinical method, the learning experience for those students lucky enough

to find a mentor is profound.

In summary of teaching methods, the best curricula tend to combine a

number of different approaches into the courses. At Franklin Pierce Law

Center, courses in Copyright Law are taught by a strict case method. Courses

in survey of intellectual property, in trademarks, and in patent and trade

secret law, modify the case method with lectures and problem-solving.

Courses in patent practice and in licensing (technology transfer) combine a

study of doctrinal approach, problem-solving, and simulation. The only way

of finding out which method works best in a particular situation is to

experiment with several methods.

D. CONSIDERING THE AVAILABILITY OF INTELLECTUAL PROPERTY

TEACHERS

Consideration must also be given to the availability of trained

intellectual property teachers. Because university budgets are often strained,

development of the intellectual property curriculum must take into account

the feasibility of hiring instructors who are seasoned and knowledgeable. The

first, and most expensive method, is to identify bright law graduates who are

interested in devoting their careers to teaching and then sending them for

several years to steep themselves in intellectual property courses and

research. The ideal curriculum for an intellectual property program would

bring together several such instructors versed in different aspects of

intellectual property studies. Such a program is not feasible for many

institutions.

A second method is to designate a single faculty member as responsible for

the intellectual property curriculum. This has the advantage of maintaining

a resident presence for students to tap for counsel and advice. The

disadvantage is that no one individual can possibly become an expert on all

areas of intellectual property studies. Where a resident faculty member is

designated to teach intellectual property, it is critically important to allow the

teacher to devote time to the subject over a period of several years rather than

to have a different person selected to teach a course each year or every other

year. From my own experience in teaching intellectual property, the

instructor does not begin to develop a true mastery of the subject until it has

been taught a number of times. The wealth of knowledge which comes from

continual exposure to the materials more than outweighs the expenditure in

human resources inherent therein.

For most institutions, however, full-time instructors in intellectual property

may not be feasible. In such situations, universities and technical institutes

may well consider hiring experienced practitioners, senior patent or

trademark examiners, or others with extensive experience in intellectual

property to develop and teach courses as "adjunct" or "visiting" teachers. In

this regard, even though such persons may be excellent and knowledgeable

practitioners, they may not have the requisite teaching skills or familiarity

with how to communicate effectively with students. Not only are

communication skills important; but effective teachers must be able to

inspire their students to excel in their studies. They must present proper role

models to students; and they must learn how to evaluate the progress of

those in their charge.

As was mentioned above, these are not skills which a teacher develops

overnight. In our experience, sometimes a teacher who is highly motivated

is very unsuccessful the first time. However, if given enough time, that

teacher may develop skills to a highly effective level. Conversely, a teacher

who has effective communications skills but is lacking in enthusiasm for the

subject matter or the student will be found out by the students. Keeping such

a person in the classroom is not advisable. Finally, older practitioners may be

highly motivated to participate as teachers of intellectual property and should

be given every consideration. In addition to their wealth of knowledge, older

practitioners who have the time, are motivated to teach, and genuinely care

for the welfare of their students will be the most excellent role models for

students.

DEVELOPMENT OF INTELLECTUAL PROPERTY TEACHING MATERIALS

Development of effective intellectual property teaching materials also takes

time. The teaching materials must be "user friendly" to both the instructor

and to the students of a course in intellectual property. Materials prepared for

some other instructor or some other group of students may be partially or

wholly inappropriate for a different instructor or a different type of students.

In the appendix are provided syllabi of courses in intellectual property taught

in the United States to law and graduate students who already have a

university degree. These materials are suitable for a teacher and an audience

in the United States but are perhaps not so suitable for teachers in other

countries, such as the countries present at this Regional Workshop.

It is important to find talented individuals in every country who have a a

deep respect for teaching and who also have sufficient experience with

intellectual property to assist students to be effective outside the classroom

when they complete their studies. Such individuals should be encouraged to

communicate broadly with colleagues who teach intellectual property both at

home and in other countries and to seek advice from experienced intellectual

property teachers about how to select, adapt, and organize teaching materials.

It is only through such cooperation that the quality of teaching of intellectual

property can be promoted efficiently without considerable waste of effort

through duplication of the mistakes of others.

In the United States, law school textbooks are available in all substantive

areas of intellectual property law, including patents, trademarks and unfair

competition, and copyright law. Other materials being prepared at Franklin

Pierce Law Center for use in courses in its Graduate Program and Summer

Institute include materials in International and Comparative Patent Law,

International and Comparative Copyright Law, International and

Comparative Trademark Law, Intellectual Property Valuation and Finance,

Licensing (Technology Transfer), Intellectual Property Management, and

International Trade Regulation.

[The appendix of this paper includes syllabi from Franklin Pierce Law Center for courses in the 1995-96 academic year.]

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