Intellectual Property Law
Separating Myth from Reality: IP Law and Practice
Professor Cynthia M. Ho, Loyola University Chicago School of Law
Myth 1: IP is only for geeks, or those who are recovering geeks.
Reality: FALSE. IP rights include copyrights, which are owned by pop stars and musicians, as well as other entertainers, ranging from Oprah Winfrey, to Walt Disney and Pixar. In addition, IP rights also include trademarks, which are created and used by corporations in all sectors of business; for example, would you rather buy an ipod, or a Target-brand music player? Similarly, the marks Porsche, Ralph Lauren, and Evian, are not typically associated with geekiness. Nonetheless, those who have been considered (or alleged to be) geeks also may find a comfortable place within IP practice - patent law requires a good understanding of technology, including material that is considered "geeky" to most.
Myth 2: It's easy to get an IP job, because IP law is "hot."
Reality: Did you really buy the Brooklyn Bridge? It's true that IP law is considered "hot," and that many firms are adding this to their practice area. However, that does not necessarily mean that is "easy" to get an IP job - especially if everyone is under the (false) assumption that this is the ideal job. However, if you are genuinely interested in the area, rest assured that there are, and will likely continue to be, jobs.
Myth 3: It's easier to get an IP job if you were an engineer, rather than an art historian.
Reality: Maybe. While it's true that the market is generally better for patent attorneys (who are a subset of IP practitioners with some technical background, including engineering, chemistry, biology, biochemistry, physics and computer science), an art history background could be quite relevant for the practice of trademark law. Similarly, prior experience in advertising, publishing, or the music industry may provide good background for copyright or trademark practice. Nonetheless, there is a greater demand for patent lawyers than supply at the moment, so in that respect it might be easier for engineers. However, the types of jobs that engineers are most qualified for, are probably not the ones that former art historians aspire to.
Myth 4: If I say I'm interested in patent law, I will have a better chance of employment.
Reality: FALSE. Patent law is much more than a buzzword. Rather, it refers to a fairly narrow area of law. Plus, employers will quickly be able to assess whether this is a good "fit" for you. On the other hand, if you have a technical background (something like engineering, biology, chemistry, physics), firms with patent departments may be more interested in you than general practice firms because of your expertise.
Myth 5: If I want to do IP, I have to take a different bar exam.
Reality: Maybe - depending on what type of IP you intend to practice. First of all, almost everyone must take a state bar exam after law school (except if youre going to school in Wisconsin and intend to practice there). In addition, those who are interested in patent law may need to take what is commonly called the patent bar. What this exam does is it qualifies you to correspond with the United States Patent and Trademark Office as either a patent agent or a patent attorney. Typically, before a patent is issued, there is correspondence between the PTO and the inventor or his/her representative (the agent or attorney). The back and forth correspondence is actually called patent prosecution and has nothing to do with criminal prosecution - just a good thing to know for interviews and other important information. But, back to the patent bar. The patent bar is the only exam required to do patent prosecution and can be done well in advance of the "regular" bar. Some people in fact work as patent agents without attending law school, although most eventually do because there is usually a pay increase for those who become attorneys. In addition, some people work as patent agents in the day and attend law school at night. So, to re-cap the extra exam only applies to those interested in patents, but not for those interested in trademark or copyright law.
Myth 6: If I want to do IP, I need to take as many IP classes as humanly possible.
Reality: FALSE. A basic foundation of IP law is much more important than a knowledge of many specialized areas. You should remember that an IP attorney is still an attorney and should know certain basic areas of law to best serve his/her client. Plus, IP law is ever-changing, both as a result of Congressional amendments, as well as judicial evolution. Accordingly, it's best to learn the general framework and how to negotiate within the general types of subject matter, such as statutes and case law. In addition, there are various types of roles within IP law that may suggest the relevance of non-IP courses. For example, there is IP litigation, which involves litigating IP cases; for this practice, all classes related to litigation would be relevant, including evidence, trial practice, and moot court. Similarly, IP may be part of corporate practice, including a practice devoted to licensing; so, for a corporate career-path, classes focused on commercial transactions would be appropriate. Finally, no matter how many classes you take, there will always be new law. So, a good foundation - of both IP and non-IP courses - in law school is important. After all, many courses that "real" (practicing) IP lawyers consider to be most important are actually not even IP courses - in particular, practicing IP attorneys have noted that fundamental first-year courses such as civil procedure and contracts are important. In addition, many IP attorneys note that good writing skills - which need not be acquired through IP classes - are very important. Also, practical experience through internships/externships is often an invaluable educational tool, as well as an asset on the job market; these experiences enable students to engage in work that is most similar to real IP practice. Judicial externships can help strengthen writing skills while simultaneously exposing you to actual IP cases. Many Loyola students who have participated in federal judicial externships have had the opportunity to work on IP cases when they have expressed such an interest.
Myth 7: I have to decide ASAP whether to be an IP lawyer.
Reality: FALSE. You certainly don't need to decide at the beginning of law school what area to focus on since everyone has the same 1L classes. Even after your first year, it is possible to explore other areas. Some people actually end up as IP lawyers after initially starting out as general corporate attorneys or litigators. However, it is nonetheless to your advantage to find out as much as possible while you are in law school to maximize your opportunities. Remember that this includes not only classes, but more informal avenues such as student groups and organizations.
Myth 8: I must pass the patent bar to get a patent job.
Reality: FALSE. Passing the patent bar can be a "plus" factor on your resume that helps you land a job. But, I have seen plenty of Loyola students get summer jobs, and even permanent jobs without taking the patent bar. These students are often in the enviable position of having their firms pay for them to take the patent bar - including the prepatory course. However, successful passage of the patent bar is an alternative route to employment for other students. That does not mean you should never consider taking the patent bar during law school. If you have the time to seriously study for the exam (including the potential cost of a prepatory course) and you think that it would substantially improve your chances of employment, then it may be something to think about.
Myth 9: I need to know more science to pass the patent bar.
Reality: FALSE. The patent bar requires that you are technically qualified. However, there is no actual science on the exam. Rather, the patent bar tests knowledge related to the rules and practice of the United States Patent and Trademark Office. It's roughly analogous to the rules of civil procedure, but with even more technicalities.
Myth 10: If I can just pass the patent bar, I'm guaranteed a job.
Reality: FALSE. The patent bar can help those who are already well-situated land a job. However, there are many people who can't take the patent bar at all because the USPTO has requirements that applicants have technical background. This is generally based upon the fact that most patent applications are technical in nature (although there are some seemingly non-technical and/or internet-related applications). Generally, if you have a major in engineering, biology (and related areas, such as microbiology), chemistry, or physics, you have an adequate background to take the test. Some computer science majors also suffice. In addition, there are some other categories that permit you to take the exam - for example, a pharmacy background, or a full roster of pre-med courses will also suffice. However, even after you pas the patent bar, there is still a supply and demand phenomena and certain types of subject areas tend to always generate work for patent attorneys.
