Teaching Method and Pedagogy

 

Intellectual Property Teaching Methods and Pedagogy at the University Level

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Introduction

The purpose of what follows is to highlight the importance of intellectual property educational programs at the university level, and to give some guidance to university professors and administrators as well as governmental officials, on how to establish an effective university curriculum in intellectual property.

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Types of Intellectual Property Programs

The range of students that would benefit from intellectual property education is broad. It includes students of business, law, the fine arts, engineering, the sciences, journalism, etc. Naturally, a broad range of teaching programs should include intellectual property in their curriculum. However, of the many types of programs that might include intellectual property, three stand out as most commonly including intellectual property courses. First, almost all business programs include some overview of the basics of intellectual property. It is important for students who hope to go into business or government to have a basic understanding of the role that intellectual property plays in the modern concepts of economics and trade. Recently, students of engineering and science need to understand the role of intellectual property, as technology management requires basic knowledge of IP assets management. Second, basic law degree programs offer intellectual property courses that give students a general understanding of the philosophy and application of intellectual property law. Even law students who do not intend to specialize in intellectual property should be familiar with the basic rights that are protected by intellectual property law. Third, specialized post-graduate (LL.M) programs typically provide a more comprehensive, specialized knowledge of the theory and practice of intellectual property law. Such programs are intended to supplement the often fragmentary knowledge that a practitioner acquires in his practice, by covering all the issues that are of importance to the protection of intellectual property.

Specialized intellectual property programs deal with three main aspects of intellectual property practice: the nature and extent of rights that are available to protect intellectual property; the process of obtaining and registering intellectual property rights (called "prosecution" where the filing and examination of an application is required), and the process of protecting and enforcing intellectual property rights once acquired, which can be done in the courts through civil "litigation", and by other, more conciliatory means.

Educational programs in business primarily focus on the first aspect—the nature and extent of the rights that are available to protect intellectual property. While such knowledge is only the starting place for an intellectual property practitioner, these are the most important aspects for business decision-makers and government policy planners. These programs give a basic understanding of the types of creative and technological products and processes that are protectable, the forms of intellectual property protection that are designed to protect each type of intellectual creation, and the effectiveness of the protection available. The student gains an understanding of the ways in which protection of intellectual property can enhance economic competitiveness. This understanding is even more important for the business planner or the economist who is concerned with the long-term economic health of his company or his country than for the author, artist or inventor, who is primarily concerned with the practical aspects of obtaining protection.

In addition to business programs, all basic university training programs for lawyers include courses in commercial law and property law, as well as courses dealing with civil and criminal procedures. Such courses are an indispensable foundation for a basic understanding of the concepts that are reflected in intellectual property law. Professors teaching such courses, particularly those of commercial, economic or property law, often include sections on various types of intellectual property protection, especially those which are of interest to the business or economics student.

Some university law schools include one or several classes, or even a complete program of classes, designed for students who intend to become intellectual property practitioners. These classes are designed to give future specialists a broad, if not deep, comprehension of the range of possible forms of intellectual property available. Such classes are valuable for the student who intends to help authors and inventors protect their works under national or foreign law, and for the student who, as a business attorney, will advise his client, the company, on this aspect of law which will have great importance for its viability and growth.

Students who enter a post-graduate specialized program in intellectual property (for instance an LL.M degree program) will typically be intellectual property practitioners who are interested in deepening their understanding of the legal foundation of intellectual property law, and of increasing their skills in the acquisition and enforcement of intellectual property rights. Often, practitioners from one country will enroll in an LL.M. program in another country in order to gain a better understanding of the intellectual property laws in that country. Such programs go into great depth on the theoretical underpinnings of the law of intellectual property. But being designed for practitioners whose daily work consists of the acquisition and protection of intellectual property rights, such programs will also include practical classes taught by experienced practitioners, covering actual techniques of prosecution of applications for intellectual property rights and litigation to enforce those rights.

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Intellectual Property Faculty

The quality of an intellectual property educational program will depend in large part on the level of experience and interest of the faculty. There are a number of full-time university faculty members in most countries who have made their speciality the study of one or more aspects of intellectual property. However, many universities do not have such specialists, and the education of students in intellectual property depends on professors who take a side interest in the field in addition to their main speciality.

Basic intellectual property courses in a law school curriculum are best taught by full-time law professors who can dedicate the time needed to counsel and guide students through the program and into the speciality in which they have the most ability. Ex-practitioners who become full-time professors have the advantage of their experience in the specialized job market of intellectual property law, and often acquire their counseling skills quickly. Experienced law professors have the advantage of understanding law education and the needs of law students. However, to engage full-time professors is not easy in countries where the number of practitioners and IP professionals is small.

An interim source of qualified teachers that may effectively fill the vacuum left by the lack of full-time intellectual property professors consists of practicing attorneys who are willing to give part of their time to teach intellectual property courses. Often called "Adjunct Professors", these instructors provide an effective and economical way of building a comprehensive and high-quality intellectual property program. This is a symbiotic process - it brings the benefit of many different qualified experts to a university program, providing a breadth of expertise that would not be available in a few individuals, at a fraction of the cost and gives to the practitioners the prestige of being affiliated with a law school program, the motivation to keep abreast of new developments in the law, plus the stimulus and inspiration that comes from teaching fresh minds who engage in re-thinking old problems.

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The Teaching of Intellectual Property in Developing Countries

WIPO has taken a number of initiatives in order to bring about an awareness of the programs of teaching and research in the field of intellectual property in various developing countries. These initiatives were designed to complement the activities of WIPO for the training of personnel, which are a part of WIPO's development cooperation program.

While the number of universities and other institutions at which intellectual property law is taught has increased dramatically, the fact remains that in a number of developing countries, intellectual property law has not yet been introduced as a course in the curriculum or is only taught as part of a course on commercial and other laws. This is largely because of scarce resources.

There are, nevertheless, a number of universities and other institutions in developing countries which have introduced intellectual property courses. They have also organized periodically, in cooperation with the government bodies and the legal profession, interested organizations, and with the assistance of WIPO, general introductory courses on intellectual property law. Moreover, in some developing countries, special courses, as well as workshops and seminars have been organized on particular subjects of intellectual property law, directed to university students, researchers from institutes, government officials, legal practitioners and businessmen, and even members of the public, having a particular interest in intellectual property law. Symposia and other meetings have also been organized, devoted to a review of intellectual property laws in the light of current economic, technological and social developments.

At the forefront of these developments in the teaching of intellectual property law have been university professors, administrators of universities and policy makers who have had foresight and have realized that intellectual property is not an abstract concept but that it is an indispensable instrument in achieving desired economic and cultural objectives. See the Academy's worldwide directory of universities/education institutions and a paper describing the recent trend in IP education.

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Selecting Intellectual Property Courses

Four types of intellectual property courses are typically taught at the university and law school level. These are Survey Courses, Specialized Courses, Advanced Seminars and Practice Courses.

Survey Courses are basic, broadly focused courses, which are intended to give an overview of the various fields of intellectual property law, with enough specific facts to interest students who might decide on a specialty in intellectual property. Survey courses, which may be titled, for example, "introduction to Intellectual Property" or "Patent, Copyright and Trademark Law", are popular with business and government students, who are looking for an economic perspective on the protection of the creations of individuals. The teaching of survey courses is especially suited for professors who are just starting to teach intellectual property—they may learn, along with the students, the breadth and the complexity of intellectual property protection. However, many experienced professors who specialize in intellectual property enjoy teaching survey courses because they find that the interaction with students from a wide range of backgrounds continually broadens their perspective.

Specialized courses focus in-depth on a single field of intellectual property. Specialized courses carry titles such as "introduction to patent law", "Copyright Law and Practice", "International Trademark Law", "Intellectual Property Licensing", "Unfair Competition", etc. These courses convey the particulars of the field of law under consideration, including a study of the statutes, regulations and procedures involved. Court interpretation of the law and judicial doctrines in common law countries, procedures for applying for and obtaining rights and procedures for enforcing rights are some of the topics which would be addressed. After finishing such a course, a student should be familiar with all the important doctrines of the field of law, and should have a good understanding of the most important standards for obtaining and enforcing rights.

Advanced Seminars are designed for students who have taken a specialized course in a particular field, and are prepared to learn more detail about one or more particular aspects of that field. An example of an advanced seminar in the patent field might be a course which examines the history of the protection of an invention, from the time that a patent application is filed, through the process of examination and issuance of the patent by the Patent Office, and through all stages of enforcement of the patent through litigation in the courts. In this way, the student would learn the practical application of the principles of patent prosecution and litigation that were learned in a general form in the specialized patent course. Another type of advanced seminar might examine an aspect of intellectual property course. For example, a seminar on "Anti-trust Aspects of Intellectual Property Law" would fill in a gap that may have been left by the basic courses. Seminars can also give students the opportunity to prepare research papers on current issues for presentation to the rest of the class, or give the professor the chance to teach his own particular specialty in depth, or to teach new and emerging fields such as biotechnology law or computer law.

Practice Courses focus on the actual steps that an attorney would take in practice to obtain and enforce intellectual property rights. Courses such as "Patent Office Practice", "Copyright Litigation" and "Trial Advocacy for Intellectual Property Attorneys" challenge students to do the very things that they will be asked to do in their legal practice. Practice courses are often best taught by practicing attorneys as Adjunct Professors, who will be teaching the things that they are currently doing in their daily work.

The task of selecting the proper type of course to include in an intellectual property curriculum will depend on the nature of the students, the faculty, and the type of degree program offered. Most university programs, when they decide to, incorporate intellectual property education, begin with a modest program, offering a survey class and one or two specialized classes. They gradually increase the number and complexity of courses as the level of student and faculty interest increases.

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Choosing Teaching Materials and Writing a Syllabus

The types of materials chosen will be dictated to a certain extent by the form of the course to be taught. However, after choosing a course the instructor may discover that appropriate teaching materials simply do not exist in printed form, or that the materials needed exist in several different sources which must be combined. Where a satisfactory text is not available, where the presentation of a chosen text is to be re-arranged, or where several texts are used in combination, a proper "course syllabus" must be provided to facilitate the organization of the class and the effective education of the student.

Much labor must be exerted in compiling teaching material and reference sources on the particular area of intellectual property to be taught. Teaching materials used by other professors can be a starting point, and may even be used until the professor has had enough experience with the class to be able to choose his own materials. But some guidance and even some sort of starting materials are needed. This section will aid the teacher in selecting proper teaching materials.

In all cases, a course text should be chosen which is compatible with the interests, expertise and teaching style of the professor. A new professor, or a professor who is teaching an intellectual property class for the first time, must choose a text which will educate and challenge not only the students, but himself as well. An established text written by a recognized authority in the field will always be the safest choice for a beginner.

More experienced professors and practitioners, who are more familiar with the available texts, may decide to gather materials on their own, or combine resources from several texts to reflect the course content and emphasis that they consider most appropriate. This allows the materials chosen to better reflect the instructor's own philosophy and teaching style, and prevents confusion between what is presented in class and what is read in the text. While different points of view should always be presented, such differences are effective as teaching tools only when properly presented by the professor as such, and not when they appear to the students as differences between the professor and the text.

Although difficult and time-consuming, it is sometimes necessary to compile one's own course materials, given the relative lack of effective teaching materials available. If at all possible, the class itself should not be used as a testing ground for the materials.

A comprehensive syllabus covering the entire course should be presented to the student before the class starts. A syllabus is a list of the topics to be presented in the course and the reading materials which correspond with each topic. The syllabus provides an "educational road map" for the students. An effective syllabus might separate the topics to be covered in the class in outline form, list the days on which each topic will be covered, and give the names and page numbers of the reading materials. At its best, a syllabus provides a coherent outline of the course, giving the students in advance an idea of the topics to be covered, and giving them in retrospect a guide for reviewing what they have (or should have) learned in the course. In scheduling topics for the various class sessions, it goes without saying that the amount of time spent on each subject should correspond with the importance or difficulty of the subject. However, some advanced subjects should only be mentioned in passing and should be left for more advanced courses. One test for the effectiveness of a syllabus is to use it as an outline for introducing the content of the course on the first day of the class, and for reviewing the content of the course on the last day. This follows the effective communication strategy of "tell them what you are going to say, say it, then tell them what you said."

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Choosing Materials for Particular Courses

Materials for Survey Courses are the most widely available texts for intellectual property courses. It is often advisable to contact teachers of the course at other universities and ask which texts are used and why. A text should be chosen which gives, as far as possible, a balanced treatment of all topics: each student in a survey course has a different interest. Intellectual property texts may also be supplemented with articles or texts which focus on the economic and political aspects of intellectual property. These may stimulate interesting discussions, and will deepen the student's understanding of the relation of intellectual property to the economic health of his country. (See Academy's research and http://www.wipo.int/sme/en/case_studies/index.htm).

Course materials for Specialized Courses are more difficult to find: there are fewer students taking specialized courses than survey courses, so that the writing and publication of specialized texts is not as well rewarded. However, excellent materials are often available, especially in the patent, trademark and copyright fields.

Where a specialized text is available, the instructor should check to see if the text is written by an expert in the field. He should supplement even the best of texts with current materials which update it and make its abstract content more approachable and more interesting. Copies of actual patents, of industrial design registrations along with samples of the product for comparison, samples of two product labels whose marks are confusingly similar, tape recordings of two songs which are substantially similar, all give reality to the principles that are conveyed by a text (see the Academy's resource page).

Choosing materials for an Advanced Seminar is often simpler than for a survey or specialized course, since the materials will be dictated by the subject matter of the seminar. Sample applications and court documents can be obtained from the relevant sources. In-depth articles and studies may be distributed as a basis for discussion. A single important case may, by itself, provide sufficient material for an entire seminar, supplemented of course with commentaries and subsequent cases relying on the main case.

Practice Courses should utilize the same materials that are used by practitioners in the field. Statutes and regulations should be referred to directly. Manuals of procedure published by industrial property offices may be purchased and studied by the students. In litigation practice courses, actual court rules and procedures should be followed. The success, quality and usefulness of a practice course will vary directly with the similarity of the course to the actual practice in the field of law. If the course teaches litigation or appeals practice, the students might argue an actual case from court files, or might argue an appeal on actual briefs submitted by the parties to a case which has been decided by the appeals court. Where patent claim drafting is taught, using an invention from an actual patent will allow the students to compare their claims with those actually issued.

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Methods of Teaching

In the legal field, there are two different basic approaches in teaching that are often used. These are the case method of teaching, and the problem method of teaching.

The Case Method of Teaching. The teaching materials which are widely used in the law schools of universities of the United States of America and the United Kingdom are based on the principles of the common law, with its overlay of statutes and administrative regulations and interpretive judicial decisions. The teaching of that law if usually approached through the traditional "case method" of teaching, which may not be practiced in other countries for a variety of reasons. Some of those reasons are attributable to the fact that the nature of the legal system in the various countries in the European continent, which influences a number of countries in French-speaking Africa and in Latin America, and to a certain extent in Asia, does not lend itself to this method of teaching. The use of such teaching materials requires that the course be constructed on the basis of those principles of common law, statutes, regulations and judicial decisions which arose from the legal system in the developing country concerned.

The Problem Method of Teaching. An alternative approach to the case method is gaining popularity even in the common law countries. Under the problem method approach, a professor will describe a particular set of circumstances which raise interesting legal problems. The students will be asked to apply the relevant principles of law to analyze and solve the problem. This requires of the student not only knowledge of the law, but also effort in thinking through all of the aspects of the circumstances and applying the law to achieve a just result. The general feeling among specialists who have looked into the question of teaching methods is that it might be possible, in the international context, to present samples or models of situations reflecting intellectual property questions and how those situations are treated under the various legal systems.

Recently, e-learning or the distance learning method has been frequently used as an effective self-learning tool. See more in a paper which discusses the recent trend and suggested methodologies.

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Encouraging Student Involvement

A highly effective educational tool is to encourage practical student involvement outside the classroom. Many law schools or universities allow student participation on publications such as law reviews or journals. Many of these journals specialize in aspects of intellectual property law, and most would welcome contributions in the field. Some schools also hold conferences on various topics of intellectual property. Participation, by attending or assisting in the organization of these conferences, can provide a student with a different perspective. Finally, where the educational system allows students to engage in practical employment during law school, they may work part-time for judges, lawyers or government agencies involved with intellectual property.

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Training And Research Institutes For Intellectual Property

Teaching at the university level is never fully effective without the opportunity for professors to undertake intensive individualized research. Such research, in the highly specialized field of intellectual property, can best be done in conjunction with other researchers with the same or related areas of interest. This explains the movement in recent years toward establishment of specialized centers of research on intellectual property law, or centers which combine both research and teaching, often as part of the law school of a university.

Legal research centers in developed countries are a fairly well-known feature. While centers devoted exclusively to research in intellectual property law have not been very extensively established in industrialized countries, there are some very notable exceptions. The Max-Planck Institute for Foreign and International Patent, Copyright and Competition Law in Germany is one of the most famous centers in the world for research on intellectual property law.

Students in attendance at university law schools also engage in research to the extent that this is a requirement for a certificate or diploma or other recognition of the successful completion of their studies. So also the professors associated with a university or a technical institute or with a center, themselves undertake individual research or are members of a research team. The scholars at these centers have specialized knowledge in given fields of intellectual property. While these centers are not devoted exclusively to research, or exclusively to teaching, they conduct excellent programs in research, teaching and training.

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Conclusion

Universities and other institutions will continue to contribute to the training of the persons who will be the legislators, judges, administrative officials, legal practitioners, and even the teachers and researchers, of tomorrow. Research institutes will continue to contribute to the analysis of the intellectual property system and make suggestions for its improvement.

Greater support must be given to research institutes, so that a constant evaluation of the functioning of the law governing the fields of intellectual property can take place, lending support to the teaching process and serving as a foundation for legislators, judges and administrative officials to review the prevailing policies, principles and practices.

Universities and technical institutes must receive appropriate guidance so that technological achievements are more widely known and disseminated, not only to other researchers, but applied in industry. In this way they can be better used, and can best justify the time, skills and other resources expended on them.

Finally, the process of intellectual property teaching and research can only be effective if sufficient resources are committed to them and to the effective organization of educational and research programs. To fulfill those requirements, government and various sectors of the economy, as well as the educational community, must work together. Each must also offer to join their counterparts in other countries to identify interests in common, so that the mutual assistance through international cooperation can function.

The World Intellectual Property Organization (WIPO) and the Academy stand ready to help governments and the educational and research community in the tasks of evaluating, selecting and applying the system of intellectual property law teaching and research that best reaches their goal: WIPO will assist government and industry to meet the needs of the public, and also assist educational and research institutions in their roles as independent institutions in pursuit of learning and scientific investigation.

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