Intellectual Property: Important Enough for the California Bar Exam

02 March 2010

Ip’s What’s Up would like to thank its readers for their patience during the last two months.  Ipper goldenrail was MIA, preparing for the California Bar Exam, which was conducted last week.  While studying for this exam, she began to wonder something:  Why isn’t Intellectual Property a subject tested on the California Bar Exam?

Bar Exams in General

For those who are unfamiliar with the process in the United States, students who have completed law school must pass a state bar exam before they are allowed to practice law in that jurisdiction.  (One exception is Wisconsin, which automatically admits graduates of Wisconsin law schools to the Wisconsin Bar.)  Each state bar creates its own exam, with the exception of the one day multiple-choice portion, which is the same nationally.  The multiple choice section covers the basic subjects: property, torts, criminal law, contracts, constitutional law and evidence.  These and other subjects chosen by the state bar are tested in written portions of the exam.

The Bar Exam in California

In California, the other included subjects are: civil procedure, professional responsibility, community property, wills and trusts, business associations (corporations, partnerships and agency), and remedies.  Presumably, the Bar has chosen these subjects because they are areas with which all attorneys will at some point come in contact.  Notice that intellectual property is not included here.  It should be.  Intellectual property is important enough in this jurisdiction that all attorneys should have at least a cursory familiarity with it.

IP is Extremely Important in California

This is California.  Home to Hollywood, to a very large portion of the United States music industry.  Home to Silicon Valley and a constant myriad of start-ups.  Home to wineries and commercial farms.  Home to a number of research and development universities, and home to forward-thinking organizations working on intellectual property reform.  Patents, trademarks and copyright, they are a vital part of everything that makes California California.

billboard in sf cropped Just like the subjects included on the Bar Exam, intellectual property is an area with which nearly every attorney will need to work at some point in their careers.  For corporate attorneys, the usefulness is clear.  The most valuable asset in many companies is the company’s IP portfolio.  It’s easy to see how this is especially true in Hollywood, the music industry and Silicon Valley.  IP assets are also important for the wineries and farms, the trademarks and trade dress that identify the products and secret processes used in the production.  (Not to mention the fun little geographical indication issues that arise because many California wineries insisting on calling their sparkling wine “California Champagne,” much to the chagrin of the rest of the world.)
[Image: Sign in San Francisco]

For other practice areas, the usefulness of basic knowledge of intellectual property might not seem so clear.  But, it is useful.  Criminal attorneys need to know about IP.  Whether defending or prosecuting a criminal infringement case, the attorney needs to know something about the crime at issue.  Family law and probate attorneys need to know about IP.  Copyrights and patents are personal assets that can be included in divorce divisions or passed down at death.  How can an attorney advise their client regarding the disposition of these assets if the attorney doesn’t understand the assets’ limited life-time or how the client can receive value from the assets?

Ease of Adding IP to the Exam

The way in which intellectual property touches so many other areas is not just the reason why to include the subject, it is also a benefit that would help the Bar examiners include the subject on the exam.  Because intellectual property is so interrelated to many other areas of the law, it would be easy for the Bar examiners to create cross-over questions, mixing intellectual property aspects into questions about other subjects.

Are there some attorneys who will never encounter an intellectual property issue?  Yes, just as there are some attorneys who will never need to deal with business associations or never file a case in civil court.  However, that does not lessen the importance of the subject.  Intellectual property touches on too many aspects of life, especially in California, for attorneys to not understand the basics.

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