As an IP lawyer you could spend your day helping a company protect its brand and spend the next helping a researcher safeguard their published results. No two days look the same!
With India emerging as the largest market for research and innovation, many companies have begun to hire patent/IP lawyers. As an intellectual property attorney, you can help artists, authors and reseachers protect their works from being stolen or infringed upon, while also helping them secure maximum financial profits. Intellectual property law is a highly specialised vocation and is increasingly in demand these days..
To become an IP lawyer, one must have a sound understanding of laws and policies pertaining to copyright, trademarks, patents and other intellectual property rights. At the same time, it is important for patent lawyers to understand technical details of the product, work or idea. To be a successful patent lawyer, one must have an eye for detail and negotiation tricks up their sleeves. These skills help significantly during litigation.
In India, patent lawyers are often confused with patent agents. While patent lawyers, if qualified can do what a patent agent does; a patent agent can’t do what lawyers do.
Before we delve into what patent lawyers do, let’s understand the difference between a patent agent and a patent lawyer.
Difference between patent agent and patent lawyer
A patent agent is a qualified person who helps you draft and file a patent application. In India, patents can be filed only through a patent agent registered with the Controller General of Patents, Designs & Trade Marks (CGPDTM). A registered patent agent is one who holds a degree in science, engineering and technology, and has successfully cleared the Patent Agent Exam held by the CGPDTM. Since drafting a patent application requires technical know-how, agents are employed by artists and innovators to file their patent.
On the other hand, an IP attorney is a lawyer who will represent you in a court of law to protect your rights over your intellectual property. Any lawyer who is enrolled with the state bar council can become an IP attorney. Please note that while your IP attorney holds a law degree, they may additionally hold a degree in science, engineering and technology. In such cases, the IP lawyer can take the Patent Agent Exam and become an agent, too. Many IP lawyers choose to take this way to provide a seamless experience to their clients.
So what does an IP lawyer do?
Applications for intellectual property rights have grown significantly in India over the past decade. Between 2014-15 and 2018-19, applications rose by 50%, according to the annual CGPDTM report.
With this trend in place, the demand for IP lawyers has soared across the country. In a nutshell, an intellectual property attorney works towards the protection of intellectual property rights of an innovator or artist.
An IP attorney will begin by filing an application for trademark or copyright or patent for an innovation or art work created by the client. An IP lawyer may also fulfil an advisory role by giving sound legal advice to clients about copyright, trademark and patent laws of the country, and sometimes international laws, too.
In case of infringement of property rights, it is the IP lawyer’s task to bring the errant to task. This could involve court proceedings against infringement, litigation and negotiation. In developed countries, the roles of IP attorneys are defined but in India the field is more competitive and there are no set roles for IP lawyers. Instead, there are certain expectations from an IP lawyer:
- Identifying intellectual property: IP is a creation. It could be anything: a design, an invention or artwork. As the name suggests, anything created by your intellect is considered to be intellectual property. An IP lawyer must have a keen eye in order to be able to identify an IP. This would require in-depth understanding of the working of multiple industries. Applying for a patent, copyright, trademark or trade secret is a tedious process and most companies seek help while drafting the application. If you are a registered IP lawyer, you can help draft and file the patent for your client.
- Litigation: An IP attorney must be able to leverage industry and law knowledge to prevent any replication of their clients’ intellectual property. This would entail identifying competitors who might be infringing upon your client’s intellectual property or competitors importing a product or technology that patented by you. It will also mean making sure there are no infringement allegations on products or technologies imported by the client. IP attorneys will have to take the matter to court if needed and engage in arbitration on behalf of their client with different parties.
- Advisory role: Most IP lawyers, especially those who are employed by a firm, are expected to actively participate in research work for their clients. This includes devising IP strategy for the firm and assessment of technology and markets.
- Legal deliberations: Most companies require their IP lawyers to be subject matter experts. However, the most obvious role of an IP attorney is to help the company stay abreast with all existing IP laws and notify them if there are any new IP laws. IP lawyers must keep up with new policies coming up within the country or globally and leverage this information to diversify the client’s portfolio.
This list is not exhaustive and the roles of IP attorneys may be more diverse in some cases.
Who can become a patent lawyer?
Any lawyer can become a patent attorney in India. If you have a three or five year LLB degree, and are attached to a state bar council, you can be an IP lawyer. There is no specific eligibility criteria for becoming an IP lawyer.
However, Intellectual Property Law is a specialised field of practice. IP in India is governed mainly by four acts of the union government: the Copyright Act , 1957, the Patents Act, 1970, the Trade And Merchandise Marks Act, 1958, and the Designs Act, 2000.
Each of these acts are in place to protect the integrity of intellectual property rights. In-depth knowledge of these acts can give a lawyer the opportunity to explore jobs as an IP attorney.
How to become IP lawyer?
As explained earlier, any lawyer who is a member of the state bar council can become an IP lawyer. To become a lawyer, one must have a law degree. Here are some law degrees that you can pursue:
- Three-year LLB: To pursue a course in three-year LLB, you must have completed your graduation or post-graduation in any field. Although law is a professional course, it cannot be completed as a graduate programme. This process can take anywhere between six to eight years before you can start practising as a lawyer.
- Five-year LLB: This is a shortcut to the above option. By taking up a five year LLB programme, you are signing up for an integrated course. At the end of the fifth year you receive a BA LLB, BSc LLB or BCom LLB. If you want to become an IP lawyer, it is advisable to pursue a BSc LLB programme as it will then open the road for becoming a patent agent, too.
As mentioned before, to become a patent agent, one must have a degree in science, engineering or technology and pass the patent agent exam.
Why should I become IP lawyer?
Many traditional law firms are now diversifying their portfolio and looking to hire IP attorneys to cater to a larger client base.
Additionally, with technology start-ups booming, entrepreneurs are willing to invest in an attorney who is proficient in IPR.
Sectors where you can find a job as an IP attorney: start-ups, research institutes, pharmacy, media, entertainment, fashion, sports, and technology.
Skills required to be an IP lawyer
Yes, it’s true that any lawyer can become an IP attorney. The question is can they become an excellent one? A law degree and a membership at the state bar council may make you a lawyer, but you need an edge to become an IP attorney.
One of the first things you can do is get yourself registered as a patent agent. This way you can draft and file a patent application, allowing you to offer a one-stop-solution to your clients for all their IP woes.
Another important aspect of being an IP lawyer is the ability to calculate the damage caused by infringement. For example, you may be able to spot a copyright infringement for your client’s product but the real skill lies in calculating the damage caused by the infringement and your ability to recover this from the errant party.
Another aspect of IP law is the ablity to perform a valuation of a technology or IP. To be able to do this, you will need to do in-depth research in the field, predict the value of the innovation and factor in taxes. Depending on your valuation of the innovation, your client will be able to raise capital for their business. So, this is your chance to shine!
Final note: Given the innovation boom in the country, IP lawyers may be in high demand. With roles and responsibilities overlapping with patent agents, IP attorneys have to perform multiple tasks. Understanding the sector in which you work and studying the market will help you navigate your responsibilities better. If you love science, technology, research and don’t mind poring over books and long reports, you may be able to shine in this relatively new stream of legal work.