A Meta counsel wants to fix the patent industry’s 'training gap'

Braxton Davis, associate general counsel for Meta, sheds light on the critical patent quality issue at the USPTO and the broader patent industry—plus how a new training credential can help, finds Marisa Woutersen.

The US Patent and Trademark Office (USPTO) and the patent industry as a whole is facing a patent quality issue, according to general counsel from Meta.

Braxton Davis, associate general counsel for Meta, says a lack of practical training in drafting and prosecuting patent applications is preventing more people from entering the profession and holding back talent.

Aside from working at one of the world’s biggest tech companies, Davis is also the executive director for the National Council on Patent Practicum (NCPP), an organisation that “champions equity and inclusion” of patent professionals.

The Meta exec knows first-hand about the damaging impact of this practical gap on aspiring patent attorneys.

It’s this group—those who may lack hands-on experience in drafting and prosecuting patent applications during their legal education—that he wants to help.

“You can go to law school, know you want to become a patent attorney, and never draft a patent during your matriculation in law school, and quite honestly that was me. I am that individual,” he says.

“Although I passed the Patent Bar before going to law school, knowing that's exactly what I wanted to do, I took the patent law classes. At no point during law school did I actually draft an entire patent application—which essentially did me a disservice."

In response to this practical gap, Davis is passionately advocating the Certified Patent Practitioner (CPP) credential, a first-of-its-kind credential in its early stages but gaining momentum.

The credential specifically targets individuals with engineering and science backgrounds looking to enter the legal profession as patent practitioners.

It aims to showcase individuals who have the practical aptitude for drafting and prosecuting patent applications while aligning with the USPTO's quality initiatives for examiners.

“We're hoping for the betterment of the profession for everyone, and to add more access for women and minorities, thus increasing those numbers, as well,” says Davis.

Addresses limitations of the USPTO bar

The CPP credential was created because of the limitations of the USPTO Patent Bar.

The Patent Bar “doesn't assess candidates' practical application for drafting and prosecuting patent applications,” according to Davis.

The CPP examination, by contrast, includes an assessment of an actual patent draft by experienced practitioners.

“It's more practical in nature,” Davis confirms, highlighting the waiver option for professionals with over five years of experience, who have drafted and prosecuted a substantial number of patent applications without facing disciplinary issues.

“For those who don't meet these criteria, the CPP qualifying exam serves as an avenue to showcase their aptitude for drafting patent applications,” he says.

Davis highlights the credential's role in bridging the gap between theoretical knowledge and practical application.

The credential assesses candidates' ability to practically apply the rules set by the Manual of Patent Examining Procedure (MPEP) and the USPTO Patent Bar in real-life scenarios.

“If you want to showcase to an employer that you have what it takes to be a successful technical specialist, patent agent or patent attorney, there's no better way to do that than to have something that says that you've actually drafted a patent application that met a certain standard of quality, as laid out by NCPP,” he argues.

Addressing the diversity challenge

The NCPP’s broader objectives are built around two foundational pillars.

The first is a focus on tackling diversity concerns within the profession through initiatives like the patent pipeline programme—a programme that aims to increase the number of women, minorities, and those that actively support debiasing efforts within the patent profession.

The second pillar is to closely align with the CPP credential, addressing the lack of practical training in patent law within traditional law schools.

“Unfortunately, a lack of training and development in the patent profession comes from the fact that law schools don't train on the practical aspects of patent preparation and prosecution.

“Without practical knowledge and education, it is quite difficult for someone to get their foot in the door at a law firm,” says Davis.

The lack of practical knowledge amplifies challenges for women and people of colour trying to enter the profession, creating barriers to opportunities.

In the field, there is what Davis describes as a “large catch-22,” where employers require individuals to have prior experience.

However, Davis questions, “Where do you obtain prior experience in drafting and prosecuting if you haven't already worked for a patent law firm?”

Women and people of colour have a much more difficult time getting into law school, and typically don’t have the same level of opportunities as their non-minority counterparts.

The CPP credential aims to provide a fair opportunity for women and persons of colour by allowing them to have a “fair shot and get themselves set up the proper way to get into law firm life before even going to law school,” says Davis.

Future impact on the patent industry

Looking ahead, Braxton hopes that the CPP credential has a positive impact on the patent profession, becomes the standard for quality and results in better patent applications and better advocacy for clients.

“We hope to subsidise what the Patent Bar is testing on regarding the legal ramifications of all the laws and statutes found within the MPEP. We hope that this really becomes kind of a sister qualification or certification to the Patent Bar registration,” he says.

He envisions this addressing the quality issues seen in the industry and also helping deal with the issue of individuals thinking that they have to go to law school, in order to learn these things.

Davis outlines the potential benefits of obtaining the CPP credential in advance of or during law school, providing individuals with a head start in their legal careers and making them more competitive in the job market.

“A lot of corporate entities require seven to ten years of practice at a firm before they consider you for the position.

“Therefore, by starting your legal career prior to going to law school, by the time you've graduated law school, you can now qualify for corporate in house positions shortly thereafter.

“Essentially jumpstarting the rest of their career, so that they're five to seven years ahead of their peers,” he explains.

Linking CPP evolution with patent industry evolution

Davis emphasises the importance of integrating litigation and corporate patent practice concepts into the credential, making it a comprehensive qualification that produces well-rounded patent professionals.

“I typically say that in understanding patent prosecution, you are a better patent prosecutor, if you understand two other components; the first component is patent litigation, and how what you do as a patent prosecutor translates into patent litigation practices; and corporate patent practice, in-house counsel and patent strategy.”

Davis envisions a multi-tiered system with different designations based on years of practice and knowledge in various patent areas.

“I see it evolving in that manner, where you have different levels and different designations of the CPP credential based on years of practice, based on knowledge, and whether you have knowledge of prosecution and litigation,” hopes Davis.

Davis will be speaking about the CPP credential in more detail at this years WIPR Summit on the 20-21 March in Chicago, Illinois.