Most states and territories in the United States require attorneys to meet continuing legal education (CLE) requirements in order to practice law before their courts. Only Maryland, Connecticut, Massachusetts, South Dakota, Washington D.C., and Michigan do not require continuing education requirements. Despite the fact that the United States Patent and Trademark Office (USPTO) requires lawyers and agents to pass the patent bar prior to practicing before the Office (in addition to the state bar attorneys must pass in order to practice within their respective state), the USPTO does not require CLEs.
The United States Patent and Trademark Office should require agents and attorneys who have passed the USPTO bar exam to attend continuing legal education in order to practice before the USPTO. CLE requirements exist to keep lawyers up to date with a changing legal landscape and to improve the public’s perception of lawyers. The USPTO should hold its practitioners to the same standard.
Continuing education in the practice of patent law benefits not only the practitioner, but also the client. The up-to-date practitioner is able to provide clients with the best possible outcome with few procedural impediments along the way. Simultaneously, the educated practitioner is also more likely to avoid liability that could result from failure to monitor recent legal reforms.
The need for continuing education with respect to patent bar registration is highlighted in the wake of the recently passed America Invents Act, which substantively changes patent law and practice. As part of this legislation, the United States will now conform to the first-to-file system for awarding patents, as opposed to the previous first-to-invent system. While this change may have made headlines in the news sufficient to inform most practitioners, other substantive, but less publicized changes have also occurred as a result of this legislation. These changes include a broadened timeframe for pre-issuance submissions by third parties and the establishment of post-grant review proceedings.
Since continuing education is not currently required to maintain patent bar registration, there is no guarantee that practitioners will be equipped to handle these changes when they become effective. Mandatory continuing education would aid in solving this problem.