Your IP PhD: things to do, things to avoid

Over the years this Kat has examined a good many PhD theses -- but not many good ones. This blogpost lists and explains some of his admittedly subjective feelings about what PhD candidates should, or should not do, based on his own experiences.

Here are some things to avoid:
Yes, they are different -- but a PhD
candidate should still explain why
* The do-it-yourself comparison. PhD theses with a comparative flavour have long been popular for many reasons. A PhD candidate studying abroad may wish to draw upon the law and practice of both his home country and the jurisdiction in which his university is based. The candidate may also be keeping an eye on the potential for turning his thesis into a book, in which the publisher's commercial risk is reduced where a comparison involving, say, United States law, is concerned. Or, less frequently, the divergent legal doctrines of the countries compared offers a fruitful academic exercise from which potentially valuable conclusions may be drawn. Sadly, while the law and practice of two or more countries may be accurately and even interestingly described, the comparison itself is often missing or exists in a vestigial form alone -- effectively leaving the PhD examiner to do the comparing for himself. I once asked a PhD candidate why his "comparison" of two sets of copyright laws was so perfunctory and was told that he had to leave them out "for space reasons". That is not, in my view, an acceptable explanation since practically every undergraduate can paraphrase and if necessary précis different sets of rules, but a PhD candidate should show some intellectual mettle in drawing out their differences and the significance of that contrast.

Does Lessig mean more ...
* The Larry Lessig Syndrome. This is a condition which can irritate the examiner a good deal even in its milder form, but it can become serious and even irremediable if not promptly treated. Incidentally, it is in no sense caused by Larry Lessig, who (on this occasion at any rate) is quite blameless, but I first noticed it in relation to him, in PhD theses and Masters dissertations and then in articles submitted for publication in the Journal of Intellectual Property Law & Practice. The principal symptom of this condition can be found anywhere in a PhD thesis in which the candidate portentously writes "As Lessig says ..." and then cites a passage of text which may or may not have been what Lessig says but which is often taken out of the context in which it was originally stated and which, by virtue of the fact that Lessig has said it, is beyond criticism, discussion or analysis. In the eyes of the candidate the truth of the words is self-evident and unchallengeable, and there is certainly no need to seek out any further support for their veracity. Other contemporary IP commentators whose words have been similarly treated in recent theses include Sir Robin Jacob, David Kappos and even Neelie Kroes.

Painting a general picture is all very well,
but a PhD should be more than superficial
* The "field of interest" thesis. Ideally a PhD thesis should be capable of expression as one or more questions that are asked and answered, or one or more problems that are posed and then either solved or demonstrated to be insoluble. In my experience this is not always so. I have occasionally been asked to examine theses with titles such as "The Law of the Internet", which appear to have no particular objective other than to aggregate and describe a number of laws, drawn from various disciplines, and to say "look, folks, these laws all have some affect on the internet. The failure of a thesis to have a particular thrust is not usually so obvious, and may result from unfortunate or inconvenient events such as a candidate's decision to terminate research early and "cut-and-run" as a consequence of loss of funding, the departure of a supervisor whose expertise cannot be replaced within the university or the realisation that the candidate's chosen subject has lost much of its relevance and academic interest on account of legislative, jurisprudential or technological developments that were unknown when work on the thesis commenced. Even so, a thesis that merely describes a field of interest but does not penetrate to the level of deep analysis of at least part of that field is a thesis that is likely to be of little benefit to the candidate or to the world at large.

Where does it begin ... or end?
* The Persian carpet text. One of the fascinating things about the decoration of a Persian carpet can be the way it presents itself as a complex interweaving of themes and motifs which may sometimes appear to have no apparent beginning or end. Some PhD theses are a bit like this: their structure is allowed to become over-complex and the text is so overlaid with internal cross-references that, whichever chapter one starts with, one is offered references to other chapters which, one feels, must first be read in order to understand the text at hand. I'm not sure why this happens, since my own writing is generally linear, beginning at the beginning and offering a one-track course to the end, but I wonder whether it might be the unintended consequence of a sort of intellectual enlightenment that comes at the end of carefully revising the text for the severalth time and seeing how many elements of the thesis, previously viewed as being disparate, are actually related to one another.
Here, very briefly, are some things a PhD candidate definitely should do [nb PhD candidates -- there are literally hundreds of pieces of advice awaiting you, of which the items below constitute a token sample. If you want more, ask your supervisor, using the request as an excuse for your next meeting ...]:
* Check carefully the spellings of the names of well-known IP authors, judges, commentators and academics. It will save you the embarrassment of discovering that you have mis-spelled the surname of your PhD's external examiner [two of the three candidates whose theses I've most recently examined were quite upset to discover that they'd done just that].

* Make every effort to help your examiners identify and appreciate those bits of your thesis -- and there are unlikely to be very many of them -- which represent your own independent, original and unaided contributions to the thesis topic.  It's not boasting to flag those bits of your thesis that are genuinely your own invention, and examiners need help --  not only to see how your thinking and your analytical techniques have developed but also to select topics which they can discuss with you in the course of the viva [note to candidates: if I can't easily spot your original ideas, I'll try to get you to discuss mine instead -- and there's a good chance that, while I will have given them some thought, you won't have].

* If you have written different parts of your thesis at different stages of your PhD registration (as is quite commonly done), do look carefully for signs that your latter thoughts might be inconsistent with, or in complete conflict with, your earlier ones. "This is what I think now and that's what I thought then" may be true, but it's not the sort of response to secure you a "Dr".

* Check through your text before submission, to make sure that you have filled in all your blanks.  I've lost count of the number of times I've followed footnotes down to the bottom of the page, only to be greeted by "See XXX at p XXX", "Add reference here", or suchlike.
I have kept both lists short in order to give PhD-sensitive readers a chance to add their own, in keeping with this blog's inclusive and participative ethos. If you have any thoughts or comments, let's here from you [and you don't have to be anonymous unless you really have something to hide, adds Merpel].
Your IP PhD: things to do, things to avoid Your IP PhD: things to do, things to avoid Reviewed by Jeremy on Wednesday, August 20, 2014 Rating: 5


  1. Thanks for this very good post. I would probably had to that the temptation to digress too much into other academic fields. While economic theories can often be used to support a thesis in law, especially in IP law, it becomes dangerous to move the discussion too much from a field to another.
    As you mentioned, the worst nightmare is to have an examiner stating: "I did not find any thesis in your PhD".

  2. The "Persian carpet text" is, I'm afraid, the outcome of that major step in human development, word processing. In the time of typewriters and (gasp!) handwriting, one was necessarily forced to provide a more or less linear stream of thought or, lacking that, get an extremely patient typist. Word processing and hyperlinks, on the other hand, allow the most baroque temperaments to flourish, producing texts of extreme clarity to its drafter, but of absolute obscurity to anyone else. The Persian carpet syndrome is by no means limited to PhD theses, but is the bane of all academic writing, much business communication, and even some modern fiction, alas!

  3. Can I write a thesis on the the inability of academic legal or economic analysis to assist ordinary businessmen in the use of intellectual property law to benefit either society or their own pockets or those of their investors

  4. @ Anonymous 09:28

    I think your thesis would be too short to be submitted.
    The reason for "the inability of academics to assist businessmen" is simple: they don't have to and it is not the function of their work/research.
    I believe that role is called counsel. Academics don't act as counsel (unless they are paid).

  5. @Anonymous 09:45
    Certainly you could, but don't expect it to get you a PhD. What would be really interesting would be a thesis on WHY academic law is (sometimes) disconnected from the concerns of business people or practising lawyers. (In fairness academic IP law papers tend to be more grounded in reality than those in some other academic law subjects.) Possible factors in the UK include:
    1. The history of professional law training, which became disconnected from academic law several generations ago, with the College of Law, Inns of Court School of Law, being the providers of the former.
    2. The move of academic law faculties towards a purer, "social science" approach (unlike, as I am told, the position in the US) and a trend towards bringing in knowledge from other disciplines to inform academic law papers.
    3. The fact that one can become an academic lawyer with no experience of legal practice and no roots in the practice world. Conversely, commentary on practical subjects like IP transactions absolutely requires experience of legal practice for it to be useful.
    4. The fact that what academics respect is a knowledge (and citation) of what other academics do, rather than what happens in practice. This is what advances your academic career.

    For all the talk of academic research now being required to have societal impact, we are still a very long way away from a real engagement with legal and commercial practice in much of academic law.

  6. The poor old businessman. How my heart bleeds for them.

  7. Can I write a thesis on the the inability…

    You could certainly try - it might even be worth reading as you attempt to prove or disprove the hypothesis.

    Don't "ordinary" businesses employ lawyers and economists, directly or indirectly?

  8. The "Persian Carpet Text" style is nothing else than the style of the Patent Cooperation Treaty (provided that Rule 26ter1. bis a)(ii)g) is fulfilled but notwithstanding Rule 3.bis.8.(iv)a)(iii).A.(vi).IV(e) second sentence).

    Both can be abbreviated "PCT".

  9. "The failure of a thesis to have a particular thrust ... may result from unfortunate or inconvenient events such as a candidate's decision to terminate research early and 'cut-and-run' as a consequence of loss of funding, the departure of a supervisor whose expertise cannot be replaced within the university or the realisation that the candidate's chosen subject has lost much of its relevance and academic interest on account of legislative, jurisprudential or technological developments that were unknown when work on the thesis commenced".

    All of these factors are outside the candidate's control. What, then, should a candidate do if, after (say) three years of research, it becomes apparent that one or more of these factors may bite? Should he abandon his unfunded, unsupported or irrelevant academic career and find a new start in another industry, with substantial investment of time and little to show for it? I do not think so. Such a student should look for such conclusions as he can sustain from his research, write them up coherently and lucidly, and submit a thesis for examination, aiming either to scrape a doctoral pass or to take the lesser Master of Research degree. Having the student hang on in the vain hope of finding support, funds or relevance does no-one any good, in this situation.

    The resulting thesis may not be of outstanding benefit to the academic community, nor present a useful solution to a predetermined problem, but might well nevertheless be a significant and substantial piece of research, suitable for publication, and showing evidence that it is produced by a capable and diligent student during an extended period of study (say three or four years). Surely that is all that can be expected of a student to be awarded the degree?

    Of course, we all want PhD students to excel and make a name for themselves in the field, both for themselves, their suervisors and their institution. However, a PhD is essentially a license to research, and the production of a thesis is the test of whether the student has the aptitude and the ability to be an academic researcher. It takes the beginnings of an academic career before one can say whether a researcher is a brilliant contributor or a pedestrian supporter of the field. No-one would consider a lawyer's practising certificate as evidence of brilliance, but of minimal competence only in a certain set of skills. The same for PhD's, then.

  10. I think a PhD thesis can be a magical thing. For one brief moment in time the writer may be the foremost authority in the world on the subject. That is combined with the fact that a thesis is very different from a book or an article. It does not have to pamper to the reader, and that allows a degree of speculation that one might not see anywhere else. My supervisor told be this was my opportunity to speculate as much as I wanted; and I did, trying to draw out deep conclusions about what my data meant. He said it is also an opportunity for one's examiners to think up the most difficult questions they can imagine. And they did. My viva was an excruciating couple of hours of unanswerable questions (many of which were not related to my thesis), but which were at the boundaries of what was known. They said my thesis was too speculative, but I passed. I'm sure very few have read my thesis, and I know the data has been found to be unreplicable! However it was truly an amazing experience.

  11. I will keep a copy (whoops;-) of that post to forward to people who write, asking me to read and comment on their draft thesis :-)
    On the practical side, I have in the past included in my replies to these hopefuls some of these humble suggestions:
    • Google (other search engines are available) a phrase like 'Writing a Dissertation with Word'. University librarians and others have written excellent advice.
    • Apply 'Styles' intelligently, so that I can use 'Outline' to collapse or expand different parts, in order to understand how your arguments are constructed.
    • Use one of the reference managers. If you use Zotero, share what you have with me, so that I can easily check your sources.
    • If you copy and paste a reference, ensure the font and point size are those of your thesis, or I will suspect you have not read the case, paper or book.
    • I am sensitive to sudden changes in style or format in the text, inevitably revealing that an unattributed chunk has been pasted into the text.
    • Using a smell checker is not proofreading. Correct spelling, yes. Relevant word, no. Ask somebody else to proofread your text. They do not need any knowledge of law. I see endless patent applications, which confuse 'affect' and 'effect; which applications have undoubtedly sailed through a spellcheck.
    Back in the Middle Ages, I used thousands of index cards. I commend this method, since I am still using them for shopping lists :-)

  12. Anonymous is nearly there. My PhD supervisor stated that I should be the foremost expert of the subject, and that I ought to be able to summarize the thesis in a half page executive summary.

    I think both pieces of advice are correct and essential.

    It so happened that my thesis was in applied physics and my supervisor (and I) were materials scientists, but the advice is true for all disciplines.

  13. "Applied physics"? That must have been a long time ago.

  14. hello, i am trying to find an interesting ip topic to do for a master thesis which i can manage well enough as a non lawyer, any suggestions?


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