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Preparing Yourself for When the Patent Market Explodes


Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog, Inc.
Principal Lecturer, PLI Patent Bar Review Course
Posted: October 26, 2010 @ 11:59 pm

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Last week I was in San Francisco, California teaching the PLI patent bar review course, and now I am in San Diego, California, on a promotion tour. Today I spoke at California Western School of Law about the patent bar exam, being a patent attorney, resumes that work and how to find a job. I will give the same presentation at Thomas Jefferson School of Law on Thursday afternoon, followed by a presentation on patent blogging for the San Diego Intellectual Property Law Association that evening, at the Del Mar Marriott.

Having just talked to law students about getting their resumes ready in case the economy does come back to life sooner than some expect, I thought I might write about my thoughts on the economy, where patent practice is headed, when we will get out of our economic malaise and how to prepare yourself in advance to be ready when the job market, and patent market, turns the corner, which we all know it will do.

First, unlike many if not most of those who are issuing predictions about the likely state of the economy in 2011, I have a bullish view. While the elections are just one week from today and no one can know what our national and state leadership will look like exactly, if history is any guide and polls mean anything it seems exceptionally likely that one week from today will be a big Republican victory. Even if you want to take a safe or cautious view on the prediction front, it is safe to say that there will be more Republicans in Congress and almost certainly more Republicans in Governor’s mansions across the country. The White House will still be occupied by President Obama, so we will have divided leadership, at least on the federal level, which seems to be about the way that Americans typically like their government.

Divided leadership, or even Democratic leadership but with a much small majority will mean that it will be even harder to get through any agenda that tends to the strong left, and there will be no strong right agenda during Obama’s last two years. That means that whatever happens next Tuesday the policies that will be pursued and which will have the strongest likelihood of passing are those that range from the slightly left to the slightly right, with a strong emphasis of down the middle, common sense politics. So less will get done, which should lead to at least an end to the uncertainty of what could lie ahead in terms of legislation and regulation.

The election of November 2, 2010, is important for another reason. As soon as the polls close and the winners are declared the 2012 Presidential cycle will begin. It seems safe to say that there will be a large number of newcomers to the House and the Senate, some without much, if any, political experience. This crowd of new Congressmen and Congresswomen will undoubtedly be trying to make a difference and engage endeavors to right the economy. Simultaneously, President Obama will be starting his campaign for re-election and he will also ever increasingly tend toward policies that are most likely to stimulate the economy and away from the social engineering legislation that has so far marked his Presidency.

President Obama is already reportedly studying the Clinton Presidency and the so-called Clinton pivot toward the center after the 1994 election, so it would seem that there is a confluence of events starting to come together that should tend toward better economic policies — which means more stable, less uncertain climate for business. With discussion already that the Bush tax cuts may be extended across the board, it is easy to predict a more friendly business climate over the next two years than over the previous two years.

Pundits I have heard talk about the economy suggest that there is anywhere from $1 trillion to $3 trillion sitting in business bank accounts just waiting for a signal. As that money starts to go online jobs will be created, the economy will look up and consumer confidence will start to rise, all of which are critical to signal a new economic re-invigoration. I sense that 2011 will be a better year than what most are predicting because I see signs that the economy is ready to explode, waiting for good news and reason to no longer fear the unknown.

Patent searchers I speak to tell me their business is up, my own patent business is up, and small to mid-size firms I speak to report that they have work coming in. In the patent industry it seems that the largest firms are on the ropes, perhaps never to come back to their full glory. The large IP boutique model seems to be crumbling as companies move toward lower cost, yet quality services that can be offered when you don’t have marble flooring and mahogany conference tables. So the work in our industry is filtering down to those high-quality boutiques that offer good prices due to low overhead. Work from independent inventors, small businesses and start-up companies is filtering into solo practitioners and smaller firms, so it seems to me that the reason there is not hiring at the moment isn’t because the work isn’t there, it is because there is a fear that the work will again vanish or that the influx of new client matters won’t last.

Positive news moving forward into 2011 should continue to be good news for the patent industry, which is a leading indicator given that those inventing and applying for patents frequently also are forming new companies or expanding. In either event they are frequently hiring, which is an important part of what will eventually get Americans to realize it is safe to return to the economy as usual. Of course, in the United States we have a consumer based economy, with nearly 70% of our economy driven by consumer spending. So job creation is critically important to turning things around, and innovation has historically played an important role in that. So news that patent filings where up 4% in FY 2010 together with anecdotal information about more work for patent attorneys and patent searchers gives an important clue that businesses and inventors might be ready to move forward, which can only snowball confidence if tied with a more mainstream political agenda that the vast majority of Americans can support. That was the Clinton model in 1994-1996, and it could well be the Obama model in 2010-2012, particularly if he can find Republican allies to work with, as President Clinton found in Speaker Gingrich.

Law students and those patent attorneys and agents who are looking for work don’t have much reason to hope currently, I know. For the last while we have been in the customary pre-election business holding cycle, which I have seen all too often. If things go as predicted by most there may still be some caution during a lame duck Congress, but the economy should turn the corner moving into 2011 and through the first quarter of 2011. That means that for those looking for work you need to be ready. Dust off your resumes, start working on your writing samples, prepare your list of references and be out and about networking. Join local bar groups, particularly patent bar groups and intellectual property law bar groups. Students can attend PLI programs on scholarship for $25, and that can be a nice place to meet industry leaders and network. The key is that you need to keep your head up and be ready. If you have not taken the patent bar exam yet and have been putting it off consider signing up for a review course, taking and passing the exam over the next 3 to 6 months. Get our affairs in order now, because when things pop everyone will be rushing and those who have it all together will be the ones in the drivers seat before others even get out of the starting gate.

Even if I am wrong, ask yourself these questions:

  • Does it ever hurt to network?
  • Does it ever hurt to make sure your resume is up to date?
  • Is it a bad idea to have a writing sample ready to go?
  • Is it a bad idea to already have passed the patent bar when looking for a job?

You all know the answer to these questions. It never hurts to be prepared. If I am right and you follow this advice you will likely have a leg up as others scramble once the economy has clearly turned the corner. If I am wrong what is the worst that could happen? You had to endure a rubber chicken dinner or two? Who knows, maybe the economy won’t turn around but you working to put yourself in the right position might cause you to get noticed and create an opportunity for yourself even while we are experiencing the post-Recession-pre-Election malaise of 2010.

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Posted in: Gene Quinn, IP News, IPWatchdog.com Articles, Patents, US Economy

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

20 comments
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  1. dGene.

    Although I disagree 100% with your politics, I found this post very encouraging indeed. As a very recent law graduate, I am one of those, as you have mentioned in your post, who is absolutely frustrated by the job market. Most small firms and solo practioners I have spoken to me do not have extra work. Some are doing trademark or provisional patent filings until inventors start spending. One can only hope that things will improve soon. I’m glad that Bilski is out of the way so that business method patents can continue, rightly or wrongly. And I am glad you mentioned the PLI scholarships because I did not know about it. Hopefully I will run into you at one of these events. I really hope both your and mine wishes come true and we can again have a golden age of patents only this time both clients and practitioners will have learnt from their mistakes and not overreach with crazy billing, fancy real estate followed by layoffs. Patent law should not be a profession where firms have to lay off en masse while jobs go offshore.

    That being said, I don’t see any good news on Nov 2 when the GOP is expected to take over the House. It
    is their philosophy and policies (aided by Wall Street Democrats, I should add) that created this horrible
    mess which we are trying to dig out of. Even a simple issue such as global warming can be used to innovate
    into low carbon, energy saving invensions but the incoming majority thinks its a hoax!

    Going forward, I feel some controversial policies need to be adoped – including rethinking the outsourcing model which is destroying jobs in US (incl patent prosecution) and figuring out a way to tax companies sitting on record piles of cash while we have 10% unemployment.

  2. Wheel-

    Thanks for your comment. We will have to disagree about who is to blame. You seem to forget that the Dems have been in charge in Congress since the 2006 elections, so the meltdown happened on their watch. If you search Youtube you will also find videos of Barney Frank chastising the Republicans, particularly Alan Greenspan and President Bush, for their continued efforts to reform Fannie and Freddie. So the history is pretty clear that the Republicans wanted to do something about Fannie and Freddie for years in advance of the meltdown, but such efforts were blocked by certain Dems, who then took control of Committees prior to the meltdown and really put their foot on the accelerator.

    In terms of global warming, it actually is a hoax. Just look at the fact that the researchers fabricated the data and admitted they did so. We are experiencing climate change, just as the earth has experienced for billions of years. The ice core temperature data clearly shows wild swings over the last 400,000 years, most of the time when humans were not on the planet and not to blame.

    I recommend you take a look at:

    http://ipwatchdog.com/2009/06/25/liberal-think-tank-says-patents-are-destroying-the-planet/id=3667/

    http://ipwatchdog.com/2009/12/03/say-no-to-patent-sharing-in-wake-of-global-warming-fraud/id=7563/

    In those articles I explain exactly why global warming is a hoax. The fact that global warming is a hoax is pretty well understood at this point. Of course, that doesn’t mean we shouldn’t try and take better care of the earth. I am all in favor of green technologies because they are responsible. No reason not to try and leave a cleaner earth. At the same time, ignoring the facts and scientific evidence, as proponents of global warming have done for decades, is irresponsible. They have corrupted the debate and attempted to make those who look at the facts and science in a critical way seem extreme and even crazy. What is crazy is their approach to science and stomping out debate.

    In terms of outsourcing, we are on the same page.

    In terms of taxing money held by companies, we will have to disagree there. That money has already been taxed once, so there is no real reason to tax it again because companies are sitting on it because they are fearful of government policies.

    Cheers.

    -Gene

  3. Gene,

    I don’t want an IP blog to become a political one but I’ll just mention one point. Conservatives are obsessed with Fannie & Freddie when the real culprit is “leverage”. Just because something happened on someone’s watch doesn’t make them immediately culpable. The seeds of the crisis go far back to the repeal of Glass Steagall days (you can blame Clinton and Rubin) to the reckless leveraged bets placed by Wall Street banks with borrowed money. Bear Stearns had 1:35 leverage ratio! Banks took incredible amounts of borrowed money to place bets (they call it “trading”). And then they figured out how to make money off home loans by securitizing. When the housing market crashed, all gimmicks came tumbling down. What did the banksters do? They ran to the arms of Big Government to bail them out. I worked for a brief while on Wall Street so I have some perspective. The Barney Frank – OReilly shouting match is more of a circus. You can say both parties are to blame but the deregulatory philosophy is more prevalent among conservatives than liberals. Now Ayn Rand devotee Greenspan is saying I was wrong. Too late!

    I don’t want to fight the global warming battle but wanted to focus on the job creation front. Yes just as there are patent lawyers, there are tax lawyers. But is it serving the country much good if innovation factories like Google, Apple, Mircrosoft sit on top of billions of dollars of cash when qualified engineers, lawyers, scientists stay unemployed? I am not talking of tax as a punishment but as an incentive to move money around, create job incubators, training programs, etc. And why should tax be an impediment? Even if after paying a small tax, some of that money is invested in new inventions and jobs, more revenue and jobs could be generated that will more than make up for that tax. And I am sure tax lawyers can further jigger the tax code to make that tax disappear from the books!

    I recently happened to attend a lecture by retired Judge Michel recently where, among other things, he suggested that Patent Office could hire all unemployed engineers and scientists from Detroit and elsewhere as patent examiners. This from a Reagan appointed judge! Kudos! In my humble opinion, I think this is the right kind of thinking at this time. When in severe depressions, government has an obligation to make sure the skillset of qualified citizenry are not wasted just because private sector cannot recover quickly. Unfortunately in the same speech he pointed out why it won’t happen – Congress won’t fund the PTO!

  4. Wheel-

    Please feel free to take the discussion wherever you want to go with it. Your positions are well thought out and informed. Frequently our discussions start one place and go elsewhere and I am completely fine with that. As interested individuals in IP we all have diverse interests in business, tax and politics.

    I think we are in large agreement about a lot of things. O’Reilly vs. Frank was fun to watch, but just for ratings. I was referring to things Frank said in Committee. I think he and others (perhaps even President Bush and certainly some in his administration) genuinely thought that home ownership was a good thing to encourage. The trouble with that is it discounted a collapse and assumed prices would always go up.

    I also agree that leverage was a huge problem, but now I think the banks are swinging the other way and causing big problems. I have never missed a credit card payment either personally or in business, and my personal credit is rated excellent, yet our limits continue to decrease. If that is happening with folks and businesses with excellent credit ratings that is a huge problem. It seems everyone is running scared at the moment.

    I agree Wall Street is plenty to blame, and they are in the pocket of the Democrats and the Republicans who need their money to run and win, which is a whole other problem altogether.

    I hate using the tax code to tinker, but as long as that is the code we have I love the idea of incentives to get individuals and businesses to do what we want/need. Philosophically I would rather a stripped down tax code that doesn’t allow for gaming and charges a fair, lower rate rather than a high rate with tons of loop-holes.

    I agree with Judge Michel and have written a lot on that topic. The one place government could invest to actually create wealth is the Patent Office, yet that isn’t on anyone’s radar screen.

    -Gene

  5. As to the off-shore outsourcing plank mentioned above – especially for application writing – there is an impediment built into the process: BIS regulations.

    As I understand them, in order to comply with the BIS regulations, one needs an export license in order to perform any work on an off-shored basis. The trick is that to obtain an export license, one needs to file the application. It is in writing the application itself that the proper care and effort needs to be taken on a professional basis, thus the bulk of effort must be undertaken prior to the point that an export license is even possible.

    I have seen on other threads of this blog indications that members of the patent bar were aware that application processing (prior to an export license being obtained) was being shipped off shore, along with reminders of the ethical duty particular to members of the patent bar to not only not allow such practice by those not admitted to the patent bar, but the duty to report such transgressions.

    And while once an application has been written and an export license obtained, off-shoring of prosecution is generally allowed, the risk/benefit scenario typically does not favor such off-shoring (there are still better values obtained by prosecuting in the United States, notably Midwest mid-sized firms – and yes, please be aware that I belong to such a firm).

  6. Gene,

    You have every right to “believe” that Global Warming is a HOAX.

    By the same fair and balanced token, others out there have similar rights to “believe” that Patents are a HOAX.

    Or more specifically that Software Patents are a HOAX.

    And yet others out there have similar right to “believe” that Evolution is a HOAX.

    Some out there may say they never saw a “half-man/half-monkey” just as you might say you never saw an honest climatologist (because they all employ tree-ring “tricks”).

    On the other hand, as a patent practitioner you are charged with having a more than ordinary comprehension of the hard sciences (physics, chemistry, thermodynamics) and also with having more than ordinary comprehension of how rhetorical argument works.

    The people who press on with the ClimateGate thing use the rhetoric of FUD (Fear, Uncertainty and Doubt). They have no science on their side and thus they fall back on manipulative rhetoric.

    The people who insist that Software Patents are a scam also have no science on their side and thus they also rely on manipulative rhetoric, such as claiming that too many low “quality” patents issue and that these stifle “true” innovation which would surely explode in exponential glory if only we remove those pesky patents and other government regulations so that the free jungle system can take over and work magic through its invisible appendages. Of course that experiment has been tried in numerous places with well known results. And yet the anti-patent fanatics press on.

    Being that this is a post that is being watched by some unemployed law students, it would be a good time to educate them on the difference between scientific method and persuasion by means of rhetorical trickery.

    You say that our economy/patent market is 101% sure to bounce back and explode into new positive territory just as it had time and time before.

    I would respectfully submit that such argument employs the rhetoric of the turkey farm** (“Farmer Brown has been nice to us 3 year old turkeys two Novembers in a row, time and time again. So why should this November be different?”) and not employment of scientific method.

    It may become the case that the Patent Market never explodes back to the glory days it enjoyed just before the dot.com bust. That is a realistic possibility.

    So the bigger question for turkeys graduating from turkey law school mills might be, what should I do if I cannot get a law job in the next 2-3 years? What are my realistic alternatives?

    __________________
    **BTW, the fallacy of turkey farm logic comes out of Nassim Taleb’s book, The Black Swan -a recommended read

  7. Not sure how many have read or heard about this article, but while we are on the subject of loss of American jobs, outsourcing, etc. I thought I should share with ipwatchdog users one of the more thought provoking articles written in recent times which challenges so-called conventional wisdom. One can already hear the slogans coming – “protectionism is bad”, “we are a global economy”, “win-win” and so on. But the writer of this article is not a lazy editorial writer for some business friendly newspaper but a serious industry leader and engineer – Andy Grove of Intel.

    http://www.businessweek.com/magazine/content/10_28/b4186048358596.htm

    Yesterday I was cheered up by Gene’s post. But step back has a point. What if market does not bounce back or there is a dead cat bounce? After all the momentum is shifting to China, India, etc.

  8. “What if market does not bounce back?”

    The reason I mention science as opposed to sloganism is because we need to do a methodical analysis of the IP market as seen from the eyes of patent practitioners.

    Every business has some sort of raw input resource that the business exploits.
    For patent practitioners that basic input resource is inventors and their inventions plus a desire by someone with capital to protect the inventions by means of patenting.

    If any one of those 3 basic inputs dries up, the patent procurement business dries up (and eventually the patent litigation business dries up, many years later).

    It would seem from recent news that we in the patent procurement business have been seeing a drying up of all three fundamental inputs:
    1) number of inventors
    2) number of inventions per inventor
    3) motivated capital wishing to invest in some of those inventions.

    Could all this drying up be due to Global Warming?
    Of course not.

    However there are many other forces at work including offshoring of American manufacturing and of American jobs.

  9. Wheel,

    Thanks for the link to the Andy Grove article.

    “Scaling” is only part of the bigger picture.

    When a large manufacturing operation centers itself in Silicon Valley (or another USA locale), there is huge infrastructure that grows around the manufacturing operation. Workers need to eat. So restaurants, food trucks, etc. spring up and provide jobs. Workers need to get the clothes cleaned. So laundries, dry cleaners. Workers need nearby housing …

    You get the picture.

  10. Step Back,

    Thanks! On a lighter note, at a recent talk on the patent job market, a practising attorney quipped that there’s a big hotel industry growing up in the Eastern District of Texas. They are monitoring the trial docket and contacting attorneys to book hotel rooms. I guess its good for the local economy but what’s in it for me a patent lawyer?

  11. Guys-

    Excellent point about “what if.” I am crazy busy today, and going to take a day of R&R tomorrow. I will revisit that soon.

    -Gene

  12. Gene–

    Well let me get the ball rolling while you are on a probably well deserved R&R day.

    Law students who are sufficiently skilled to enter the patent prosecution and litigation business are also likely skilled to enter the vertically below market segments where: (1) inventors are encouraged to invent (or “innovate” if you like that word better); (2) inventions are sorted according to which are most likely to succeed; and (3) investors are encouraged to invest (or “innovest” if you like that word better).

    BTW: did you ever notice that the difference between “investor” and “inventor” is an S and N swap?
    Inventors invest their time, energy and passion (and often some money).
    Investors invest their money (and often times, their energy and passion) into propelling a project to the next stage. So it is understandable that not much in spelling separates them.

    Accordingly, even if the more structured, law practice business is not open to now-graduating law students, they may choose to throw their hats into the riskier pre-patent start-up stage where some of the above enumerated activities take place. And they can use their skills for getting the ball rolling again in our stagnated economy.

    Does it pay?
    Well, with great risk comes great reward (or great disappointment).
    However, with the job market being the way it is, is there really much of a choice?

    Besides, if you enlist as a start-up foot soldier in pushing patentable inventions forward to the patenting stage, you will be aiding in opening that latter market segment back up and reinvigorating the economy. Your country will thank you for your service (perhaps).

  13. I don’t want to be presumptuous, but I personally don’t see anything explicitly ‘political’ in Gene’s observations regarding what we can expect after the election. The type of fiscal spending Gene is attributing to the Obama administration should have beneficial effects on the economy during a downturn, at least based on what history has shown.

  14. Gene,

    I’m a current law student hoping to practice patent law. Would it be possible for you to email and or post your slides on the presentations you mentioned about the patent bar exam, resume tips, etc.? I’d also be welcome to any advice from others!

    Additionally, are you planning any presentations in the Southeast any time soon?

    Thanks!

  15. Gene,

    Thank you for taking the lead to dispel many of the current myths floating around online- but I do have a question that I think you and others on this site will be well qualified to answer- how am I legitimately positioned to enter into the job market for new patent attorneys?

    I’m young- only 25, have a chemical engineering degree from the Univ. of Michigan, Ann Arbor and currently attend Chicago-Kent College of Law, IIT. I’ve worked in the interm between undergrad and law school at two Fortune 50 companies. Later, I worked in a small patent boutique (basically a solo with an associate) during law school but was recently let go because of poor grades.

    Now, I know that grades are paramount and I have done very well in all my legal writing courses but I haven’t been able to focus on school alone. Should I look hard to find work at another firm or just focus on grades entirely and see what happens in 1.5 years when I graduate? Was this investment in a legal education at Kent really going to enhance my earning potential above what I was otherwise making as a ChemE from Michigan?

    I enjoy working in the field- but am simply so worried after reading these scam blogs that my good intentions may very well remain as just that- intentions.

    Thanks,

    Navin

  16. Navin-

    When you say your grades are poor, what are we talking about in terms of a GPA. The answer really does matter.

    -Gene

  17. Gene,

    I’m a current law student hoping to practice patent law. Would it be possible for you to email and or post your slides on the presentations you mentioned about the patent bar exam, resume tips, etc.? I’d also be welcome to any advice from others!

    Additionally, are you planning any presentations in the Southeast any time soon?

    Thanks!

    (I apologize for the repost, just was hoping to get these slides!)

  18. Ken-

    Thanks for your interest. I don’t think I have any powerpoint slides. I usually don’t use powerpoint unless it is expressly required for the presentation. In my experience with Powerpoint slides people focus on the slides and not the presentation. I will try and put together an article with resume tips though.

    In terms of the patent bar, John While is doing an audio presentation about the new patent bar exam on February 25 from 1pm to 2pm EST. It is free. You can register at: http://www.pli.edu/Content.aspx?dsNav=Ny:True,Ro:0,N:4294939139-164&fromsearch=false&ID=129433&t=HCU1_IPWDG

    I don’t have any presentations scheduled at the moment, but if you like I can put you in touch with folks at PLI who schedule trips and maybe something can be arranged if there is interest at your school.

    -Gene

  19. Gene-

    I sent you an email with some details through this website, thanks for the help-

    Navin

  20. Gene,

    Thanks for the reply. I’m currently studying for the patent bar using the PLI Home Course. Your site has been extremely helpful in learning more about the profession as well as learning more about the patent bar. An article with resume tips for positions in intellectual property law would be extremely helpful and beneficial.

    Additional idea: It’d be very interesting to have hiring partners in intellectual property firms or in-house intellectual property counsel put in their two cents in the article as well.

    Thanks again!
    -Ken