If you had to pick the biggest winner and thus the most promising alternative legal career field of them all, Intellectual Property would be among the strongest candidates of any of the 30 arenas that will be covered once this Law Careers blog series is complete.? For a variety of reasons that will be discussed in this blog, IP is largely impervious to economic ups and downs, as the experience of the past four years has clearly demonstrated.? If you are looking for a legal career and not just a legal job, IP is a good place on which to focus your efforts.? Moreover, IP now covers ground way beyond its traditional patent-dominant fixation and is open to individuals from all educational and experiential backgrounds.
Why is IP So Hot?
The biggest reason?? IP comprises 80 percent of corporate assets, versus 30 percent 25 years ago.? The tectonic shift from hard assets and manufactured goods to IP and other intangibles makes monetizing intellectual assets a core corporate strategy.? The market for IP assets is growing rapidly.? Beginning last summer, corporate IP managers began getting barraged with phone calls about IP positions, strategies, sales and acquisitions. ?Rights owners, venture capital funds, hedge funds, private equity, and angel investors are all enthusiastic about the potential for buying and selling IP.?? At the same time, corporate managers are looking for ideas how to develop longer-term strategies in order to maximize the IP value in their own companies.
Other Reasons?
The concept of IP asset management has caught hold in both corporate and academic circles.
IP practice has been only marginally affected by the Great Recession, not only here but across the planet.? Patent, trademark and copyright filings have been growing despite the bad economy.
The America Invents Act is going to provide a significant boost to bringing innovation to the marketplace, due to three provisions:
Authority to hire 2,000 additional Patent Examiners at the U.S. Patent and Trademark Office (USPTO).
Establishment of four first-ever USPTO field offices outside of the Washington, DC area (Detroit, Dallas, Silicon Valley, and one location to be determined)
Allowing USPTO to retain and invest more of its filing fees rather than turning them over to the Treasury.
Look for 200-250 new jobs to be created by the new field offices, principally Patent Examiners.? More importantly, look for the new offices to become magnets for the creation of new legal positions in the private sector in the areas where they will be located.
University Licensing is now a $60 billion annual business.? Last year witnessed the highest-ever increase in patents issued since the Association of University Technology Managers began collecting this data 17 years ago.? ?657 new commercial products were created by college researchers and universities formed 651 new startup companies to commercialize their inventions.? This kind of technology transfer, a phenomenon that is also present in government (more than 300 federal laboratories do it) and corporate America, is very hot and not likely to cool off at all.
The Ever-Expanding Range of IP
IP traditionally was a fairly stodgy and predictable discipline.? Patent, trademark and copyright practice were calm and uneventful.? No longer.
Patents
Now, patents have gone international and have become the subjects of contentious litigation and arbitration worldwide.? Patent offices are inundated with work.
Trademarks
For most of its history, trademark practice was viewed as an ancillary sideline of patent practice.? If a client had a trademark that needed to be filed, its patent firm would do it, but did not consider it as more than a client courtesy.? Today, that has all changed, and dramatically.? Trademark-only firms are proliferating and expanding throughout the U.S.? The Trademark Office has gone to electronic filing, which has liberated the practice from being tethered to the Washington, DC area and expanded its geographic scope nationally.? With the U.S. as a Madrid protocol signatory and globalization forcing businesses to compete globally, trademarks too have gone international.? Trademark services firms are rapidly moving up the list of organizations that file the most trademarks, and utilize attorneys in a variety of law-related capacities.
Copyrights
For the first 99 percent of its history, copyright law was the quietest, most dead-end IP practice backwater.? If you wanted to work in copyrights, your best bet was one of the handful of positions at the U.S. Copyright Office in Washington, DC.? Today, the Internet and globalization have turned copyright inside out.?
Copyright practices are proliferating in major firms and content provider companies ? music and movies lead this drive.
For years, copyright was essentially based on just one statute, the Copyright Act (the most recent one being the 1976 Act).? Since 1976, the following copyright laws enacted by Congress have made copyrights a very hot area of endeavor:
- Digital Millennium Copyright Act of 1998 ?
- Copyright Royalty and Distribution Reform Act of 2004 ?
- Satellite Home Viewer Extension and Reauthorization Act of 2004 ?
- Intellectual Property Protection and Courts Amendments Act of 2004 ?
- Prioritizing Resources and Organization for Intellectual Property Act of 2008 ?
- Satellite Television Extension and Localism Act of 2010PRO-IP Act
- Pending: Innovative Design Protection and Piracy Prohibition Act ? would extend copyright protection to fashion design
??Sister Act?
Two parallel pieces of legislation were introduced in Congress and given serious consideration until some serious industry muscle got to Members and got both the Stop Online Piracy Act (House) and the Protect IP Act (Senate), designed to stop rampant Internet theft, to be halted in their tracks.? These two very important bills also failed because the public does not give a flying hoot about how Web-based companies steal IP owners blind, as long it continues to receive its free information.?
That does not mean, however, that they are gone forever.? The extent of the theft problem will only escalate and even our timid Congress will have to respond at some point.
| The International Scene The China Syndrome China is in the process of establishing a national office for IP rights infringement, a purported attempt to crack down on counterfeit and pirated products.? For the moment, I think this is pure public relations window dressing, designed to make the West believe that China, by far the worst offender of IP rights on the planet, is actually doing something about these excesses. Confirmation of my assessment is that China is tasking local governments with cracking down on IP rights infringement within their regions. International IP Rights Enforcement The U.S. is finally showing a glimmer that it is getting serious about the rampant IP rights piracy and counterfeiting that is going on around the world and harming U.S. businesses to the tune of an estimated $250 billion per year and 750,000 lost jobs.? The Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act): established an IP Enforcement Coordinator?s Office within the White House (housed in the Office of Management and Budget) to coordinate IP enforcement efforts domestically and abroad, and led to the positioning of more than 700 IP Enforcement Officers at State Department embassies and consulates worldwide.? USPTO is aggressively involved in bilateral and multilateral negotiations about IP enforcement.?? It now also has an IP Attach? Program in embassies around the world.? Anti-Counterfeiting Trade Agreement This international agreement was recently signed by the U.S., Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea, with the European Union (EU) a johnny-come-lately, dragged kicking and screaming to the table, a reluctant signatory.? ?Notice what country has not signed on: China.? The accord targets IP piracy and imposes on signatory nations an IP enforcement regime strikingly similar to the one in effect in the U.S.? The EU balked for this reason. It demands that governments make it unlawful to market devices that circumvent copyright, such as devices that copy encrypted DVDs without authorization.?? This clones a feature contained in the U.S. Digital Millennium Copyright Act in US, where the law is used by Hollywood studios to block the marketing of DVD copying technology.? It calls upon participating nations to maintain extensive seizure and forfeiture laws re counterfeited goods that are trademarked or copyrighted.?? Most importantly, signatory countries must carry out a legal system where victims of IP theft may be awarded undefined amounts of monetary damages. WIPO and the WTO The World Intellectual Property Organization (WIPO), located in Geneva, Switzerland,? has grown prodigiously since its inception and now has 34 separate offices where attorneys work in either mainstream legal or law-related positions.? The Geneva-based World Trade Organization (WTO)?has five such offices.? The U.S. is a member of both organizations and is well-represented within each one.? Bilingual proficiency (English and another major language, especially French) is an advantage. Section 337 Cases Section 337 investigations, conducted by the U.S. International Trade Commission (ITC) pursuant to 19 USC 1337, primarily involve claims regarding IP rights, including allegations of patent, trademark, or copyright infringement by, or antitrust claims relating to, imported goods; misappropriation of trade secrets; and false advertising.? Section 337 cases are the fastest growing type of case before ITC, increasing from 46 in 2010 to 69 in 2011 (there were only nine in 2000).? The primary remedy is an exclusion order that directs the government?s U.S. Customs and Border Protection?to stop infringing imports from entering the U.S. IP Asset Management (IPAM) and Technology Commercialization IPAM (or IAM) has emerged as one of most important areas of business endeavor, thanks to:
IPAM transforms and leverages IP assets (patents, trademarks, and copyrights) and other intangible assets (such as trade secrets, brands, business processes, and employee know-how) into strategic corporate assets. ?It generates value by helping create new uses for IP.? In its broadest sense, it includes:
IPAM is spreading rapidly throughout the business and legal communities, and can be found in:
Criminal Enforcement of IP Rights This is an evolving area of law.? Two years ago, the Justice Department (DOJ) created an IP Task Force consisting of:
As IP continues to grow as a central element of corporate strategy, expect more on the criminal side. Law-Related IP Job Titles The following law-related IP job titles reflect the great expansion of interest in IP we have experienced in the 21st century:
Building an IP Platform A wealth of inexpensive credential enhancement programs exist for those who do not have an educational background in the IP field.? Many of these offerings are online, and note that several are free of charge. DePaul University College of Law?
Licensing Executives Society?Intellectual Asset Management Certificates Certified Licensing Professionals, Inc.?Certified Licensing Professional Certificate Kent State University?Knowledge Management Certificate (online) Franklin Pierce Law Center?Intellectual Property Diploma U.S. Department of Agriculture Graduate School?Technology Transfer Program University of California, Berkeley Extension?Certificate in Technology Transfer and Commercialization World Intellectual Property Organization
University of San Diego?Intellectual Property Professional Certificate New York University School of Continuing and Professional Studies?Certificate in Intellectual Property Law Foundation for Advanced Education in the Sciences?Technology Transfer Certificate Program? MIT?Introduction to Copyright Law (online)[A free, 4-lecture course] Stanford University?Licensing New Technology (online)[A free, 12-lecture course] International Trademark Association
U.S. Patent and Trademark Office ? Global Intellectual Property Academy?
For Further Information? Next: What Else Is Out There? Legal Career Alternatives, Part XVIII ? Intelligence/Security |
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