Intellectual property law deals generally with the legal rights to creative works and inventions. These laws encourage people to produce new inventions and creative works for profit, benefiting both the creators and society. Intellectual property law comprises both federal and state bodies of law.
People and businesses who have created original works of art or invented new items and want to obtain a trademark, patent, or copyright benefit from the services of an intellectual property attorney. An intellectual property lawyer can help a person or business apply for a copyright, patent, or trademark and then enforce their rights against uses by others that infringe on the protection.
Or, an intellectual property lawyer can defend a client accused of copyright, patent, or trademark infringement. If a person has been alleged to have infringed on a copyright, patent, or trademark, an intellectual property lawyer can defend the person against the allegation. Lastly, people or businesses holding trademarks, patents, or copyrights can profit by licensing them to others for uses to which the owner agrees. An intellectual property lawyer can help a client negotiate and conclude licensing agreements.
The attorneys may also represent clients in cases involving intellectual property issues in state and federal courts and hearings with agencies such as the U.S. Patent and Trademark Office (USPTO).
Technically, Intellectual property (IP) law gives creators and inventors a set of rights to exclude others from making, copying, or using certain intangible creations of their intellect or creative talent. The U.S. Constitution gives Congress two powers related to IP rights. The first one is in the IP Clause of the Constitution. It gives Congress the authority to grant “authors and Inventors” an exclusive right to their “writings and discoveries.”
The second one is the Commerce Clause. This gives Congress the right to regulate interstate and foreign commerce.
There are four main areas of intellectual property law as follows:
- Patents: A patent gives a person or business exclusive rights to manufacture, sell, use, or import an invention. The United States Patent and Trademark Office (USPTO) issues patents, which last for 20 years from the date of application. The USPTO issues three kinds of patents:
- Plant patents are issued for certain types of plants, primarily those used in agriculture production;
- Design patents are issued for the ornamental characteristic of a device;
- Utility patents are issued for inventions that have particular usefulness;
- Trademarks: Trademark laws prevent the unauthorized use of logos, symbols, slogans, and other works that identify and distinguish products or services;
- Copyrights: Copyright law gives photographers, musicians, dancers, and other creative artists exclusive rights to display their work publicly. The law protects only the content of the work. In addition, the work has to meet certain requirements to qualify for copyright protection. The term copyright varies, depending on the type of work copyrighted and whether an individual or a corporation created the work;
- Trade Secrets: Trade secrets protect information that is commercially valuable and may even be critical to the profitable operation of a business. A wide variety of information can qualify as a trade secret, including business, scientific, or technical information. The critical feature is that the information has value because it is not generally known to others, especially competing businesses. Common examples include secret recipes for food items, chemical formulas, financial information, source code, or manufacturing processes.
How Are Intellectual Property Lawyers Paid?
Lawyers are paid in several different ways. One typical fee arrangement is called a “retainer fee.” Some IP attorneys prefer this kind of fee arrangement. A retainer fee is an advance payment of a portion the client is expected to owe for a lawyer’s services in a given period, e.g., a month.
Any amount that does not go towards the legal representation or the costs of representation would be returned to the client or carried over to the next period. Alternatively, if the retainer is not enough to compensate the attorney for the work they have done, the client would need to pay for whatever the retainer does not cover.
Attorneys like retainer arrangements because they are paid upfront. They then know they will be paid for their work and have funds to cover some or all of the costs associated with their representation.
A retainer fee arrangement is a variation of the hourly fee arrangement because the retainer simply covers an attorney’s hourly fee. Most intellectual property attorneys are paid an hourly fee for the hours they spend working on a case.
The attorney would agree on the hourly fee with the client before their representation begins. It is best for both sides if a written fee agreement specifies all of the terms and conditions of the attorney’s representation for the client, including the fee arrangement.
One other common option is a contingency fee arrangement. This is more common in personal injury law but may happen in an intellectual property case. In a contingency fee arrangement, the lawyer is paid a percentage of any money they recover in a lawsuit for their client. If the lawyer does not recover their client’s money, they are paid nothing.
An intellectual property lawyer might also charge a flat fee for a completed service. For example, a lawyer might charge a flat fee to obtain a patent for a client’s invention.
How Can I Become an Intellectual Property Lawyer?
Generally, it can take 7 years of full-time study to become an intellectual property attorney. A person must obtain a bachelor’s degree from an undergraduate college or university, usually takes 4 years. If a person knows that they aspire to become a lawyer who practices intellectual property, they might consider selecting a major in a scientific, computer, or engineering field.
A person must then earn a juris doctor (JD) degree from a law school. To gain admission to an accredited law school, a person must take the Law School Admissions Test (LSAT). The person’s score on this test is one of the main factors law schools consider in their admissions decisions.
It takes three years of full-time study to earn a JD degree. Most states require attorneys to get their JD degree from an American Bar Association (ABA) accredited law school. However, some states, e.g., California, allow a person to qualify for admission to the state bar after engaging in a personal study program with a licensed attorney.
A person who wants to practice intellectual property law would want to take the courses on that topic that their law school offers. While in law school, students can complete clerkships or internships or simply take part-time jobs with firms that practice intellectual property law. These experiences give students additional education that may improve their job prospects.
Before practicing law, the lawyer must become a member of the bar of the state in which they want to practice. This requires the lawyer to take and pass a state bar exam, which tests their knowledge of law and professional ethics. Most people who plan to take their state’s bar exam engage in a commercial program of study for the bar exam. The state bar association determines which scores on the test qualify the applicant for admission to the bar and the resulting license to practice law.
A person can also pursue a Master of Laws (LL.M.) degree. This degree allows a person to study a specific area of the law in greater depth. It also gives attorneys additional expertise and credibility as a professional.
Today, many states require that licensed attorneys participate in continuing legal education regularly as an additional requirement to keeping their license to practice active. This helps attorneys stay current with changes in the law and new court opinions on issues of general interest to the profession.
Do I Need the Help of a Lawyer with My Intellectual Property Issue?
Consult a qualified intellectual property lawyer to apply for patent, copyright, or trademark protection. Or, if you need help managing trade secrets, an intellectual property lawyer can also help with that project.
Or, if you have a copyright, trademark, or patent and believe it is being violated, you want to consult an IP lawyer for help defending against infringement. Also, one of the ways to profit from having a copyright, trademark, or patent is to license it to others for their legitimate use. Again, an intellectual property lawyer is the person who can help you profit from, as well as protect, your intellectual and creative productions.
