The Practice of Federal Regulatory Law
INTRODUCTION
Few people understand or appreciate that they may be eligible to practice law in the United States, depending primarily upon their knowledge and experience, without first having to pass a state bar examination, or attend law school.
Two such licensing opportunities are outlined below.
UNITED STATES TAX ATTORNEY
For example, the United States Tax Court governs admission to the federal tax courts and administers its own bar examination based upon detailed knowledge of the United States Tax Code. By passing this bar examination, one earns the right to use the title “U.S. Tax Attorney” and represent clients before both the U.S. Internal Revenue Service and the United States Tax Court in all tax-related matters. Of course, the tax bar is difficult; few people pass, or even attempt, the U.S. federal tax bar.
UNITED STATES PATENT AGENT
Likewise, the United States Patent and Trademark Office (USPTO) governs admission to practice before the Patent Office and administers its own patent bar examination based upon detailed knowledge of 35 U.S.C., 37 C.F.R., and the Manual of Patent Examining Procedure (MPEP). By passing the patent bar, one earns the right to use the title “U.S. Patent Agent” and represent clients before the United States Patent and Trademark Office in all patent-related matters. Of course, the patent bar is difficult; each year 4,500 people sit the U.S. federal patent bar, only 40% pass the examination on their first attempt.
THE KERNEL
The crux of the idea is that the applicable law is federal regulation, not the common law; thus legal training of limited scope is permissible because knowledge of the whole breadth of common law jurisprudence is not ordinarily called upon in the practice of a legal specialty founded solely upon federal regulation.
EUROPEAN UNION
The formulation of European Union Federal Regulation has created two remarkable opportunities for the practice of law founded solely upon federal regulation.
In almost perfect analogy to the two aforementioned specialized fields of law in the United States (tax law and patent law) for which licensure does not depend upon prior admission to the state bar or law school attendance, European Union Federal Regulation has created licensing opportunities for the practice of patent law and trademark law that do not require prior admission to the bar in a Member State or even law school attendance.
In both cases, the new federalism in Europe has resulted in licensing opportunities for the practice of law in the European Union that are based solely upon European Union Regulation, not the common law or customary law in the participating Member States.
EUROPEAN PATENT ATTORNEY
The rules of admission to become a “European Patent Attorney” are founded in federal regulation and allow technically qualified individuals to sit the licensing examination, called the European Qualifying Examination (EQE), administered by the European Patent Office (EPO) pursuant to the European Patent Convention (EPC).
The European Qualifying Examination (EQE) is designed to establish whether the candidate has the requisite aptitude and knowledge to represent applicants before European Patent Office (EPO) pursuant to the European Patent Convention (EPC).
Specialized legal knowledge is required. Candidates need to be conversant with European patent law, the Patent Cooperation Treaty (PCT), the Paris Convention, European Patent Office Board of Appeal case law and national laws insofar as they apply to European patent applications and European patents.
Of course, the European Qualifying Examination is difficult. In 2007, 684 candidates took the European Qualifying Examination (EQE) for the first time. Of these, only 165 (24%) passed all parts of the examination.
EUROPEAN TRADEMARK ATTORNEY
The rules of admission to become a “European Trademark Attorney” are founded in federal regulation and allow technically qualified individuals to be enrolled as listed representatives before Office for Harmonization in the Internal Market (OHIM) and represent clients in all Community Trademark Registration and Opposition & Cancellation Proceedings before the Office for Harmonization in the Internal Market (OHIM), and International Trademark Registration before the World Intellectual Property Organization (WIPO) in Geneva, Switzerland, using the MADRID AGREEMENT and MADRID PROTOCOL.
The key to registration as a “European Trademark Attorney” is the admittance to practice before the central industrial property office of the Member State in which he has his place of business or employment.
Professional recognition before the Office for Harmonization in the Internal Market (OHIM) and authority to use the title “European Trademark Attorney” is granted to those entitled to represent natural or legal persons in trademark matters before the central industrial property office of the Member State in which he has his place of business or employment.
For example, an Irish Trademark Agent is entitled to represent natural or legal persons in trademark matters before the Irish Patent Office (IPO), the central industrial property office in the Republic of Ireland. However, an Irish Trade Mark Agent would further be required to have his place of business or employment in the Republic of Ireland because he must be entitled to represent “natural or legal persons in trade mark matters before the central industrial property office of the Member State in which he has his place of business or employment.”
The Office for Harmonization in the Internal Market (OHIM) administers no separate professional licensing examination. Rather, authority to use the title “European Trademark Attorney” is conferred by the OHIM upon certification by the central industrial property office of the Member State in which the applicant has his place of business or employment that the applicant fulfills the conditions of Article 89(2)(a), (b) and (c) of the Community Trade Mark Regulation (CTMR).
For example, the Trade Mark Agents Registration Board of the Irish Patent Office (EPO) will certify that an Irish Trade Mark Agent fulfils the conditions of Article 89(2)(a), (b) and (c) of the Community Trade Mark Regulation (CTMR).