IP Lawyer: Everything You Need to Know
An IP lawyer specializes in intellectual property law, which involves rules for securing and enforcing legal rights to inventions, designs, and artwork.7 min read
Updated July 7, 2020:
An IP lawyer specializes in and practices intellectual property law, which involves rules for securing and enforcing legal rights to inventions, designs, and artwork. The law also secures assets like personal property and real estate. These laws give people incentives to improve creative works to gain a profit, which can be beneficial to the community.
Intellectual property lawyers help clients in many different ways, such as:
- Establishing and protecting intellectual capital
- Licensing inventions
- Transferring proprietary technology
- Drafting licensing agreements
- Negotiating settlements
- Conducting IP asset due diligence
Intellectual property lawyers represent clients in federal and state courts and at the United States Patent and Trademark Office and the international trade commission.
Intellectual property lawyers give clients new ideas to increase their portfolios. They may also give sets of rules and regulations for additional protection. You can also hire an intellectual property lawyer to help you file an application for a patent or trademark, defend your patent or trademark, represent your case before a patent examiner or board, or write a licensing agreement.
Education and Background
Intellectual property lawyers must not only possess a law degree, but also a scientific, engineering, or technology-related degree.
Intellectual Property Law
Intellectual property law has six sections:
- Trademark Law
- Copyright Law
- Patent Law
- Trade Secret Law
- Unfair Competition
The expansion of intellectual property law secures the creations of human thought that feature inventions that qualify for patent protection such as:
- Literary and creative works like books, performances, music, and artwork
- Product names, slogans, logos, and packaging
- Symbols, names, pictures, and designs utilized in commerce
- Commerce secrets and techniques
Trademark law protects logos, symbols, or phrases used to differentiate products from each other. A trademark holder can go to court and acquire an injunction to prevent the further use of their protected trademark.
Copyright law protects photographers, writers, artists, musicians, and other creators of original works of expression. It offers the unique ability to help creators guard the use of their works.
It is very important to understand that, unlike trademark legislation, copyright legislation doesn't protect the title of a specific work, just the content of the work itself. Copyrights last for the lifetime of the creator plus 70 years.
The inventor of a product is given every right to use or to sell his inventions. It is protected by a patent.
The functional features of a process, machine, manufactured item, asexually reproduced plant, or composition of matter can be protected by patent. The United States Patent and Trademark Office (USTPO) will not grant a patent unless it is non-obvious and novel.
The USPTO issues three kinds of patents:
- Plant patents are issued for certain types of plants.
- Design patents are issued for the ornamental characteristic of a device.
- Utility patents are issued for inventions that are useful.
A patent is a document that the federal government issues that gives the owner all rights to keep others from using their inventions.
Rights for patents last up to 20 years from the date the application was filed. Symbols, names, and slogans that are used to identify goods, products, and services are protected by trademarks. They are used to avoid confusion, prevent misleading advertisements, and help consumers recognize differences from one product to another. Generic and descriptive marks may not pass since the objective is to distinguish goods. Rights can last for a lifetime. You can acquire protection by using a mark. Owners can register their marks for further protection, though it is not required or needed.
The U.S. Constitution gives Congress the authority to allow authors and inventors the right to their creations. Article 1, Section 8 of the Constitution also gives Congress the right to regulate interstate and foreign commerce. Intellectual Property Law is administered by the U.S. Patent and Trademark Office and the U.S. Copyright Office.
Once inventors acquire their patents, they have every right to use or sell their inventions or the patent itself. Some patent rights last up to 20 years, but their validity still depends on the type of invention. Some items include new machines, technological improvements, and manufactured goods. It may also include the appearance of the product. If the product or invention is found to be obvious in design, not useable, or morally offensive, the patent will not be issued.
Conditions Under Which a Patent Is Granted
A patent will be granted if the inventor files within a year of certain acts (by the inventor or others), which place the invention in the hands of the public (i.e., patented or published anywhere in the world, on sale, or in public use within the country). It must be a new, useful, and unobvious invention of proper subject matter. Some foreign countries may not have the one-year grace period.
A U.S. inventor who wants a patent must file an application in the United States before revealing it to the public. It may be in oral or written form. The description of the invention in the application must be in detail so that it will be easier for others to use the invention. The invention must be unique, original, and one of a kind. It must also be useful.
Why Obtain a Patent?
Inventors want a patent because of the commercial advantages that come with the right to exclude others. The main reason for researching an invention is because of the fast recovery of the costs or gaining profit from exploiting the invention commercially.
One can commercially exploit a patent in two ways:
- The inventor patents the invention directly to obtain an exclusive marketplace advantage.
- The inventor receives income or profit from the sale or licensing of the patent.
How is a Patent Obtained?
An inventor can obtain a patent through the United States of Patent and Trademark Office. The inventor must seek help from a patent lawyer before starting a process because of the complex legal rules.
Trade Secret Law
The trade secret laws protect valuable business information that gives an advantage to a company.
The information must be unique for consideration as a trade secret. That means that others in the industry mustn't already know this information. If the trade secret owner wants to protect his "secret," the courts will grant protection from spies, competitors, employees, and anyone else disclosing any protected information.
A license gives the holder permission to do, own, or use something. Typically, licenses give the license-holder the right to:
- Breed something that would otherwise be protected.
- Distribute copies of the work to others by sale, lease, or rental.
- Display the work.
- Organize by-product works from the unique work utilizing protected expression from the unique work.
Unfair competition refers to dishonest or fraudulent acts. It is a branch of intellectual property law, applied to the practice of having a substitute for one's product in the market for those of another for the purpose of deceiving the public.
Examples of unfair competition include
- Trademark infringement (e.g., soda container manufactured by a competitor using the Coca-Cola® trademark)
- False advertising (e.g., claiming that a certain medicine can make you lose weight if it cannot)
- Unauthorized substitution (e.g., producing a replica of a designer bag with the intention of selling one brand of goods as another)
- Misappropriation of trade secrets (e.g., stealing a competitor's formula or recipe)
- False representation of products or services (e.g., exaggerating a software program's spellcheck capabilities)
- Trade defamation (e.g., producing articles that may harm or destroy a business)
Protecting Against Infringement
Infringement refers to the unauthorized use of intellectual property. To guard against infringement, property owners ought to take steps to make people aware that their rights exist. Offering discovery helps deter infringement by making the proprietor's rights visible to those that may inadvertently violate them. It additionally triggers further authorized advantages and places the proprietor in a greater place to prosecute an infringement in the courts, if that becomes necessary.
Inventors can use the patent number assigned by the patent and trademark office as a mark to identify their products. The label “patent pending” can be used to discourage others from copying the design. The use of logos and copyrights is given by inserting the suitable image (™, ©, and so forth) on the product, after registering the mark or copyright, so it may be added to the federal government's database.
If the owner of intellectual property files for a case and the action is granted, one can choose from several solutions. The courtroom can order an injunction, which means the infringer must stop whatever he or she has done to violate intellectual property law. There might be substantial money damages or fines issued. If the owner's right is substantiated by the court, there can be a license agreement between the two parties. The infringer can use the intellectual property, but he should pay the owner.
If infringement occurs, rights to intellectual property might be enforced in the federal courtroom. Before filing a lawsuit, however, intellectual property owners will need to seek the advice of a lawyer and thoroughly contemplate whether or not litigation is in their best interest. Infringement cases are costly to prosecute, and there is a threat that the proprietor's rights, when scrutinized, might be revealed as invalid or much less in-depth than the proprietor believed.
However, rights to intellectual property can be quite profitable. Infringement cases have bankrupted many big companies. Any individual or business dealing with issues of infringement must hire an attorney. Firms specializing in intellectual property law are available to help owners who are looking to establish, profit from, or defend their rights.
Why Is Intellectual Property Law Growing?
Intellectual property law is very important. Because of developments in science and technology, the demand for lawyers who specialize in this field continues to rise. Intellectual property lawyers help organizations protect the rights of businesses, authors, inventors, musicians, and other artists.
Since innovation and inventions are part of human development, intellectual lawyers will always be needed to provide ideas and protect ownership of inventions. Even if some law practices are affected by the recession, the field of intellectual property law will continue to grow.
Along with the improvements in technology, there has been a rise in intellectual property crimes, piracy, internet piracy, and cybersquatting (the abusive registration of trademarks on the internet).
China and other developing countries are enacting refined legal guidelines and paying larger consideration to intellectual property enforcement, which has fueled the expansion of intellectual property regulation internationally.
If you need help with intellectual property law, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.