Intellectual property (IP) is intangible property that is the output of human creativity and intellect. IP law protects and regulates intellectual property through a system of IP rights. Core IP rights include patents, trade marks, copyright and design rights (the precise nature of the rights available varies by country).
What does intellectual property law involve?
Generally, lawyers advise on a number of IP rights. In larger or more IP-focused firms, lawyers may specialise in one or two particular types of IP right, but the work that they do will be broadly similar. From a transactional point of view, solicitors will generally negotiate over the licensing, assignment or generation of a right (for example, the allocation of potential rights arising from a joint venture). The actual applying for and obtaining of registered rights is generally done by a trade mark or patent attorney. Other lawyers will litigate over IP rights, for example arguing whether they are infringed by another person or whether the right is valid. Depending upon the firm, it may be possible for a lawyer to practice both contentious and non-contentious work.
Who are the clients in intellectual property law?
IP law is relevant to basically everyone; I’ve advised a self-employed individual who made pop-up stages out of scaffolding, SMEs, and multinational technology companies. Certain organisations will come across IP issues more regularly in the course of their business. This includes technology and pharmaceutical companies, where, to a certain extent, the value of their business is based on their IP rights. IP rights play a significant part in the development of new technologies, such as 5G or artificial intelligence, as well as pharmaceutical products, which can generate a degree of media interest.
What does a typical intellectual property law case look like?
A typical case would begin with a company that wishes to sue another company for infringement of its intellectual property rights. Proceedings would be issued, and the opposing side would likely say they do not infringe the IP right and allege that the right was invalid in some way in their defence. After the parties have set out their cases, there will be a case management conference to determine the appropriate directions to take the matter to trial (for example, what disclosure and evidence is required). Litigation concerning IP rights tends to be highly evidence based, though it varies as to whether the significant issues will turn on evidence of fact or expert evidence.
It can be harder to settle IP disputes than in other areas of commercial litigation, as often the stakes are quite high; parties usually face either being prevented from doing something or giving up (or limiting) the right to prevent others from doing something. As such, roughly around half of cases go to court: this will typically take place between 12 to 15 months after the start of the claim in the Business & Property Courts. The complexity, the value of the dispute and the right in question will determine the specific list in the Business & Property Courts (for example, the Intellectual Property Enterprise Court, the Patents Court or the general Intellectual Property List).
What will a trainee lawyer in an intellectual property department do?
Trainees are likely to be involved in all aspects of a case. They may be responsible for the administration of a matter, making sure everybody knows what they’re doing and ensuring that key deadlines are kept, and they will attend meetings as part of the wider team. Trainees likely will also be involved in drafting, such as preparing (parts of) licence agreements or court pleadings, and legal research.
What skills do intellectual property lawyers need?
- An analytical brain.
- A willingness to get to grips with things you don’t understand.
- Good team playing skills, as intellectual property lawyers will often work on the IP aspects of other areas of law.
- Lateral thinking skills, as IP disputes can be complex.
What impact is Brexit likely to have on intellectual property law?
Intellectual property law in England involves a significant amount of European law. Quite a lot of IP rights, with the exception of patents, are heavily harmonised across the single market or have EU-level equivalents. Brexit will mean these European-wide rights, which many companies have previously relied upon, will no longer cover the UK. However, the UK government is taking legislative steps to minimise the commercial disruption this will cause and companies are also taking steps to ensure they have appropriate national IP protection insofar as they do not wish to solely rely on such UK legislation.
There are also plans for a pan-European patent court, which are currently on hold pending a German constitutional challenge. There is also new European legislation concerning copyright coming into force, which will affect large technology platforms such as YouTube.
Types of law practised
LUKE MAUNDER is a senior associate in the patent litigation team at BRISTOWS LLP. He graduated with a degree in computer science from the University of Bristol.