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Thomas G. Field, Jr.
Contents
The golden age
of intellectual property law
Surfers on the World Wide Web should appreciate why this is often regarded as the "information age." U.S. News and World Report has likened ideas to iron ore and oil in the industrial age -- essential raw materials. Because ideas cannot be literally fenced in or locked up, they must be protected with trademarks, copyrights, trade secrets and patents. These legal interests are collectively called "intellectual property." (What these areas entail is addressed elsewhere at this site in very basic and more detailed discussions.)
It has not been long since intellectual property was generally regarded as a tool of "monopolists." Owners of patents, in particular, fared poorly in the courts and could not get help from Congress. The situation once led a Supreme Court Justice to remark, in frustration, that the only valid patent was one that had not come before the Court. Only within the past dozen years has encouraging innovation come to be seen by judges, members of Congress and others as important to preserving the U.S. standard of living in the face of international trade imbalances -- and intellectual property to be seen as offering needed encouragement for innovation. For example, to secure uniform and reasonable recognition of patent rights, Congress has given one federal court exclusive jurisdiction over all U.S. patents. Also, to reduce the risk of illegal copying, it recently provided that software cannot be rented. Thus, many intellectual property owners regard this as a golden age.
This is reflected, too, in a now-dated Newsday report that identified intellectual property law as a "hot" career and mentioned that people with no more than paralegal certificates can make from $28-69,000. (But, people on the high end of the scale probably have significant technical training.) Lawyers of course make higher salaries, but law school takes at least three years. If you are willing to consider spending up to three more years in school, intellectual property offers a wide range of interesting and rewarding careers.
However, those without technical backgrounds should not pursue an intellectual property career blindly. The most valuable patents usually involve cutting-edge technology, and trade secrets often do. Unless your undergraduate degree is in a physical science or engineering -- or you have at least a masters (and probably some experience) in biotechnology, patent and trade secret opportunities will be slim.
As discussed in more detail below, people without technical training are likely to deal with copyrights, trademarks and special contracts such as licenses or franchise agreements. Yet, the intellectual property law covering non-technical subject is often at least as interesting as that involving technology. An alumnus who works in advertising law said that his wife would not sit close to him when they watched TV because he was always nudging her and saying, "Hey, I was involved with that ad!" Few legal areas are more interesting or involve matters of such wide impact.
Also, you may have heard about a recent Supreme Court case concerning Two Live Crew's rap version of Pretty Woman. Legal professionals involved in that case were surely not only well paid but also found many opportunities to discuss it, within the bounds of confidentiality, at social affairs. In late 1996, U.S. Trade Representative Charlene Barshefsky estimated copyright industries including software, films, television shows and music, represent about 5% of the U.S. gross domestic product.
The global marketplace
The U.S. is said to be the world's largest producer of intellectual property -- covering everything from computer software and hardware to pharmaceuticals, movies and toys. This is directly related to our offering strong legal protection to innovators.
Congress recently ratified the North American Free Trade Agreement to make the U.S., Canada and Mexico into a single free trade area comprising 370 million people with a combined gross annual profit of almost $7 trillion. Much stronger intellectual property protection in Mexico was part of the agreement.
U.S. companies have long complained about losing tens of billions of dollars annually to uncompensated use of their intellectual property. This played a major role in their promoting the General Agreement on Tariffs and Trade (GATT) recently ratified in the U.S. This is expected not only to facilitate world-wide movement of goods but also to provide stronger global intellectual property protection. Sponsors claim that GATT will add hundreds of billions of dollars to world trade.
Such things would not be happening if other countries did not also increasingly recognize the role of intellectual property in improving general standards of living. I see evidence of this each year when a new class of mostly foreign students enrolls in an intellectual property masters program at Franklin Pierce Law Center. The evidence seemed particularly compelling when enrollment more than quadrupled over a couple of years. Qualified applicants now well exceed available spots in each class.
Trademarks
Many companies have trade secrets, patents and copyrights, but it is hard to imagine any company that does not have identifying marks to distinguish its from competitor's goods or services. Also, patents and copyrights expire, and trade secrets often become common knowledge. However, if a company treats its customers well, its marks become only more valuable over time.
Trademark and related law probably represents the largest opportunity for lawyers without strong technical training. In the U.S., trademarks are hard to avoid. Surely as a child you asked your parents to buy you a Barbie or Strawberry Shortcake doll, Lego building blocks or Hot Wheels cars. More recently, you may have lusted over a Corvette or Ferarri -- or actually considered buying a Ford or Honda automobile. Likewise, you probably have a preference for Burger King, MacDonalds or Wendys food; for Coke, Pepsi or Dr. Pepper soft drinks.
Thus, marks are also valuable to consumers wishing to purchase goods they favor or to avoid others. If trademarks did not exist, consumers would probably invent a substitue. Seen this way, trademarks protect consumers at least as much as companies that own them.
Trademark lawyers and paralegals spend considerable time tending to registrations of marks with various state governments and with the U.S. Patent and Trademark Office in Washington. D.C. They also make sure that the same or confusingly similar marks are not used by unrelated firms, take action to prevent counterfeit goods from being sold and try to educate the media and the public on the importance of using marks correctly. With regard to the last, you may have seen ads asking you not to call products Xerox, Kleenex or Bandaid when you have no idea who made them (and may not care).
Sports, entertainment and related industries
Sports are estimated to account for 2.5% of world trade. Sports relate to intellectual property in several ways, for example through endorsements by famous athletes. Michael Jordan is said to have made more money for endorsements than for playing basketball. Teams also benefit by licensing use of their logos.
Until recently, purchasers of products bearing the name of a college or professional sports team would not have assumed any connection. However, the situation has changed dramatically. Various measures are now taken to regulate the quality of merchandise and to ensure that institutions whose logos are used share income through trademark licensing.
According to an article published by the International Trademark Association, the market for licensed baseball-related merchandise, alone, grew about ten times between 1986 and 1991. In 1993, it represented $2.5 billion in sales. This encourages counterfeit goods. The same article reported that hundreds of thousand of items, worth about $1 million had been seized during the weeks before games -- just in cities hosting Super Bowls.
The Atlanta Olympics. It was reported that in a few months before the Olympics Customs authorities seized $2.9 million worth of unauthorized merchandise at our borders -- said to be a new record. Also within the U.S., and mostly in the vicinity of Atlanta, another $2.5 million worth of infringing goods were seized. With that in mind, imagine how much was earned through sale of licensed goods!
Now, add music, movies and toys. Here too, licensing others to use trademarks is usually an important source of income. Nothing illustrates this better than an article discussing Jurassic Park. It noted that promotion and licensing of the skeleton logo began two years before the original film was released, with an advertising budget of $60 million -- approximately three times the advertising budget for the movie itself!
Again, famous (living and fictional) figures are highly sought for endorsements, and attorneys are often needed. For example, when companies can't get what they want, or at a price they're willing to pay, they sometimes resort to other measures. A court had to order one that featured a sound-alike singer in an ad to cease and to pay damages to Bette Midler.
Getting into law school
As mentioned, full time law school takes three years. As most people know, law school culminates in the Juris Doctor (J.D.). Assuming no severe character deficiencies, those with a J.D. from an American Bar Association accredited school can take the bar exam in any state. Having passed it, they can practice in any legal area. [The sole exception is patent law. To apply for patents, a lawyer must have a solid technical background and pass an examination administered by the U.S. Patent and Trademark Office.]
College graduates need not pursue any particular line of study to be accepted into law school. An acceptable score on the Law School Admissions Test (LSAT) and good grades are important, as are writing ability, initiative, curiosity and maturity. Grades usually get close scrutiny, but people who take easy courses or attend schools suffering severe grade inflation gain no advantage. No law school is easy; if they somehow gain admission, people who have not been challenged in undergraduate school will be hard-pressed to succeed.
Law professors rarely, if ever, presume that students in their classes have any particular background. One of the great things about teaching law is the extremely diverse educations and experiences that students bring! Professors certainly do not assume that students took undergraduate "law" courses. Do not worry if you have not. One student did miserably in one of my courses after doing well in an undergraduate class that had used the very same book! She did not appreciate that "law" courses tend to be very different when taught outside of law schools.
Making the most of increasing opportunities
Partly because technical training is required to apply for patents, lawyers so trained have historically dominated intellectual property practice. This is changing. Because technical backgrounds are, at best, irrelevant to the practice of trademark and most copyright (software aside) law, lawyers practicing in such areas are less apt to have technical training. General firms once content to send intellectual property business to boutique patent firms increasingly keep it for themselves. Being tired of long working under the shadow of patent lawyers, trademark lawyers seem sometimes to go out of their way to hire people without technical backgrounds. Even technology-based companies are now less likely to hire technically trained lawyers for non-patent work. Still, patents aside, it is difficult to qualify. Also, although the number of intellectual property jobs is increasing, it is often difficult to locate those that do not require technical training.
Just about any lawyer (without or without technical training) can do copyright, trademark and other intellectual property work unrelated to patents and technical trade secrets. As intellectual property and related areas such as licensing grow in popularity, competition will be intense. Here are several ways to increase the odds of landing any legal job -- including one in intellectual property.
First, people with relevant non-legal backgrounds have an advantage. All else equal, clients want lawyers with experience or education related to their business. For example, having been a copywriter in an advertising firm will be helpful if one later seeksto represent such firms. Likewise, prior careers in sports or entertainment can be very helpful.
Second, intellectual property-related courses taken in law school can help. Law schools recognize this. While few offered even a single survey course a few years ago, intellectual property's growing global importance has induced many to increase offerings. Several have quite recently instituted specialized programs.
Schools with little to offer emphasize the need for fundamentals. This is disingenuous at best.
- Basic curricula are very similar everywhere. Subjects such as civil and criminal procedure, contracts, property and constitutional law are required. Also, all schools offer, if they do not require, courses such as evidence. Students take them because the subjects are on bar exams.
- Required and "bar" courses aside, a solid third of the 85-90 semester hours needed for a J.D. remain. It seems foolish not to use that time to learn about areas of interest if possible.
- Electives, of necessity, also cover legal fundamentals -- perhaps more effectively by demonstrating how the fundamentals bear on problems of particular student interest. This could explain why one study found that enrollment in "fundamentals" courses did not correlate nearly as strongly with bar passage as one might expect.
Third, a survey by the American Bar Foundation indicated that oral and written communication skills are sought by hiring lawyers more than substantive legal knowledge. In a sense this is reflected in some law firms' fascination with grades and law review experience. To make good grades, one must not only know the law, but also be able to apply it and effectively communicate the results. In any case, people interested in particular legal careers can improve their understanding, demonstrate their commitment and otherwise improve their chances of getting the job they want by writing and editing papers, as well as by participating in oral competitions.
Fourth, in the global marketplace, knowledge of foreign languages and culture is increasingly important. If you speak Arabic, approach law firms with clients who trade heavily in the Middle East. Similarly, given the growing importance of the Pacific Rim, you could vastly improve your chances for employment by knowing conversational Japanese or Chinese. As the U.S., Canada and Mexico merge into what is becoming a single market, Spanish and French are increasingly important. Also, foreign clients appreciate it when lawyers know something about their language and culture.
Last, but hardly least, students should do their best to excel. Law firms often seek people with excellent grades; some seem (foolishly in my opinion) to disregard almost everything else. In any event, the less you offer in other ways mentioned above, the more important grades become.
Thanks to Jon Cavicchi, FPLC's Intellectual Property Librarian, for locating some of the information discussed here!
Modified Dec. 22, 2004 tgf
URL: www.piercelaw.edu/tfield/careers.htm
Franklin Pierce Law Center
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© 2002-2007 Franklin Pierce Law Center. All rights reserved.
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