Probably the hottest practice group in all respects for the past several years has been intellectual property law. However, many attorneys have little idea (1) what the definition of intellectual property law is, (2) why intellectual property is so popular, and (3) the four types of intellectual property attorneys and what area is the most marketable. The purpose of this article is to answer the question ”What is IP law?” and these other two questions.
On a daily basis, attorneys call us and say they want to do intellectual property law. We are always interested in talking to an attorney with experience in intellectual property law because it is, generally speaking, one of hottest practice areas in the United States. Most sophisticated firms in every market that we serve have an interest in intellectual property attorneys with certain backgrounds. However, "intellectual property law" is a very general term. There are many types of intellectual property law, and many areas of intellectual property law are not hot at all. To define what intellectual property law means and what’s hot and what’s not is very important to our discussion.
One of the most amusing facets of intellectual property law to us is that unless someone is practicing it, or quite familiar with it, he/she is unlikely to have a good idea about what the meaning of intellectual property law is. We have found that there is a bit of confusion with respect to what it really means to be an intellectual property lawyer.
Recently, one of our recruiters received a call from the Managing Partner of a well-known law firm. This Managing Partner had been practicing law in excess of two decades and was very well known in a practice area other than intellectual property. This a rough approximation of what this conversation went like:
|PARTNER:||I need an IP lawyer with 3-4 years of experience. We are dying for someone like that over here|
|BCG RECRUITER:||What kind of IP attorney? Are you looking for hard or soft IP?|
|PARTNER:||Yeah. What do you mean?|
|BCG RECRUITER:||Do you want someone to prosecute patents, trademarks, do IP litigation, copyrights?|
|PARTNER:||We need them all.|
|BCG RECRUITER:||And you are only looking for one person?|
|BCG RECRUITER:||Is the patent work you are doing focused on the electrical, mechanical, or biological side?|
|PARTNER:||What do you mean?|
Similarly, each and every day we receive calls from associates who say something like the following to us: "I am currently a litigator; however, I went to X Law School, which is ranked very highly in intellectual property law. I want to join a firm where I can do more intellectual property law." When this same associate is asked what kind of intellectual property law he/she would like to do, he/she inevitably replies, "What do you mean?" At that we point we guess that the caller really doesn’t know what the answer to this question is: what do intellectual property attorneys do?
If you are already an intellectual property attorney, you can appreciate how humorous these conversations are when someone asks (after a while): what is an intellectual property lawyer anyway? At the end of this article, if you currently know little about intellectual property law, you will understand why these exchanges are so humorous.
2. What Intellectual Property Attorneys Do
The term "intellectual property" is used in its general sense to describe:
A product of the intellect that has commercial value, including copyrighted property such as literary or artistic works, and ideational property, such as patents, appellations of origin, business methods, and industrial processes. (The American Heritage® Dictionary of the English Language, Fourth Edition. Copyright© 2000 by Houghton Mifflin Company. Published by the Houghton Mifflin Company. All rights reserved.)
Intellectual property examples include music, books, movies, artwork, product names, logos, slogans and packaging, inventions that qualify for patent protection, and information that is kept secret and not commonly known. Over the past 200 years, a variety of laws have developed within the United States to give intellectual works the same protections that real estate or other forms of property enjoy under the law. Indeed, intellectual property can be bought or sold just like a house or a car. Intellectual property types can even be leased out.
What are intellectual property rights? Significantly, where property such as machines may have once been the primary source of a company's worth, in today's economy much of a company's worth comes from the ownership of intellectual property. What do you think the value of the trademark for CokeTM, Microsoft's Windows operating system, or the rights to the movie Gone With the Wind are worth, for example? Attorneys are generally involved in protecting this type of intellectual property, and their involvement could be in any one of numerous areas of the intellectual property field. In general, there are five basic types of intellectual property work that attorneys do. While this list could certainly be toyed with after some debate, for all intents and purposes, these areas are:
Trademark Law. Trademark law protects words, phrases, logos, or symbols used to distinguish one product from another. In circumstances where a competitor uses a protected trademark, the holder of the trademark can go to court and obtain an injunction to stop the use.
Copyright Law. Copyright law protects the creators of expressive works, such as artists, photographers, writers, and musicians and gives them the exclusive right to protect how their works are used. It is important to note that unlike trademark law, copyright law does not protect names or titles, for example. One way that copyright law can be distinguished from trademark law is in the advertising context. Trademark law would commonly protect the name of the product being advertised, while copyright law would protect the expression. For example, the statement in an advertisement: "If you drive this X car, you will undoubtedly realize it is among the best in the market for what it does," is an example of something that would have elements of copyright and trademark within it.
Patent Law. Patent law protects inventions. By filing and obtaining a patent from the United States Patent and Trademark Office, the inventor of a product receives a monopoly on the commercial exploitation and use of a product for up to 20 years. Patents can protect the functional features of a process, machine, manufactured item, asexually reproduced plant, or composition of matter, for example. In general, the United States Patent and Trademark Office will not issue a patent for anything unless it is:
The United States Patent and Trademark Office generally issues three types of patents:
Trade Secret Law. A trade secret is "a secret formula, method, or device that gives one an advantage over competitors." (The American Heritage® Dictionary of the English Language, Fourth Edition Copyright© 2000 by Houghton Mifflin Company. Published by Houghton Mifflin Company. All rights reserved.) In order to be a trade secret, the information must be such that it is not generally known to others in the business community. If the owner of the trade secret takes reasonable steps to keep the trade secret under wraps, courts will protect the trade secret owner from unauthorized disclosure by (1) industrial spies, (2) competitors who wrongfully acquire the trade secret, (3) employees of the owner of the trade secret, and (4) anyone with any type of duty not to disclose the information.
Licensing Law. While licensing law may make use of all the areas of law above, it is a popular enough type of work that it merits some discussion. A license is a grant of permission to do something with an otherwise protected work or product. A copyright holder, for example, can give permission to other individuals to copy their work. In general, licenses grant rights to do one or more of the following things:
B. Why Intellectual Property Law is So Popular?
1. The American Economy's Current Strength is Largely Based Upon Intellectual Property
If you investigate how to become an IP lawyer and search all of the intellectual property openings on our website, you will quickly become aware that it is by far the most popular practice area in terms of where the majority of open positions are. This is a function of broader trends within the American economy.
While there are many political, sociological, and other reasons given for the present dominance of the United States in the World Economy, in all respects, a great deal of the recent growth in the United States has been fueled by intellectual property-related developments. Not surprisingly, the boom that came to a screeching halt in late 2000 and the beginning of 2001 was referred to as the technology boom. In almost all sectors where technology was exploding, intellectual property had an important role in this growth.
United States economic growth has gone through several major historical transformations. While we are attorney recruiters (not historians), it is worthwhile reviewing this growth to understand the profound importance of intellectual property, the role of attorneys within this field, and why intellectual property plays such an important role in our economy. The below explanation is extraordinarily simplistic; however, it does demonstrate the point we are seeking to make:
Accordingly, while intellectual property was once not something of great importance, today, it is fundamental to the success of our economy. In fact, one can scarcely pick up a newspaper these days without reading an article about intellectual property disputes. Whether it is Napster or Amazon.com's "One-Click Patent," the fact is that protecting intellectual property is extremely important to most businesses. Even in the more traditional manufacturing sector, the need to protect intellectual property is strong. An article in the July 2001 edition of California Lawyer, for example, discussed the fact that Mattel's product, Barbie, brings in $1.5 billion in revenues annually and that Mattel aggressively protects its Barbie trademark.
In fact, this growth in intellectual property-related legal work has been so profound that courts are often at a loss as to how to deal with many of the issues. On October 2, 2000, near the height of the technology boom, CNN.com reported that:
2. Certain Types of Intellectual Property Are More Popular Than Others
With the massive amounts of layoffs in technology-dependent companies in 2001, the importance of the technology industry to the United States could not be more evident: These layoffs have had a devastating effect on almost all United States industries. While corporate attorneys have been drastically affected by the current slowdown in work throughout the United States, the same firms that are laying off corporate associates are interviewing and hiring many of our patent attorneys at an extremely aggressive rate. It’s interesting when people ask what a patent attorney is. I want to answer that it is a very hireable attorney! In one week in 2001, two of our patent attorneys were hired for positions in states they were not even residing in within a week of contacting our offices. The reason for this is that companies continue to aggressively invest to ensure that they protect their technology, and law firms need people to do this type of work.
Without a doubt, the largest demand for intellectual property attorneys is for those who can do patent work. Approximately 85% of the intellectual property placements we make are for patent attorneys. Review the listings on our website. There are more openings for patent attorneys than for many other practice areas combined. This means that finding a patent attorney usually isn’t too difficult.
In 2000, however, there were numerous openings for trademark, copyright, and licensing attorneys. Now there are significantly fewer. The question arises as to why the patent market has not been adversely affected by the current economic slowdown while other areas of intellectual property have been. In 1999 and 2000, for example, there were several openings for "e-commerce" (Internet / software / trademark / copyright / business attorneys). These openings are now few and far between. Conversely, we do not feel the market for intellectual property litigators has been adversely affected by the current economic slowdown in any meaningful way. There are several reasons why this pattern has emerged, and they are important to understand:
3. The Reasons Patent Attorneys Are Continually in Demand
Patent law is without a doubt one of the most active areas for any type of recruiting in the United States, and we have seen no noticeable slowdown in patent recruiting despite the slowdown in the American economy that started in late 2000. As the American economy continues technology-oriented growth, the need for patent attorneys will follow. There are several reasons patent attorneys are in such demand:
Intellectual property is a broad, broad field, and anyone wanting to know how to become an IP lawyer and pursue a career in this field needs to understand this. The intellectual property field is among the most important legal fields in the United States because the involvement of intellectual property attorneys has been integral to the expansion of the economy in this country.
The specialty of intellectual property law in greatest demand is patent law. For the most part, patent attorneys are exceedingly marketable if they have the right backgrounds. This is due to the fact that there are so few of them and that the work they do has been expanding at a rapid pace. In terms of the growth in the patent field, however, there are also numerous different types of patent attorneys, and their areas of expertise can affect their marketability.
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