Intellectual Property and Cyber Law
This Guide is designed to give you a brief overview of the legal field in Intellectual Property and Cyberlaw. It provides practical information regarding the types of employers and practice settings in which you can pursue a career; the personality traits that employers seek; the practical skills that you can gain during law school; and resources to further research this rewarding field.
This content is courtesy of the Bernard Koteen Office of Public Interest Advising at the Harvard Law School. It was written by Paige von Mehren, Summer Fellow, 2012 and Julie Yen, Summer Fellow, 2013. The guide was edited by Joan Ruttenberg, Director, Heyman Fellowship Program.
What is Intellectual Property and Cyberlaw?
Intellectual property (IP) is a longstanding field of legal practice that traces its roots back to the U.S. Constitution and before. Cyberlaw, by contrast, is a very new area of law that combines innovative legal theories with new takes on traditional doctrine. Both have been significantly impacted by the development of new technology and the growth of the Internet. So, for example, copyright questions have been complicated by Internet users’ ability to readily reproduce material online, and criminal law has developed to respond to the wide range of offenses that can now be committed online. Both IP and cyberlaw, therefore, are now expanding fields of increasing importance.
There are opportunities for students and lawyers interested in these issues in many practice settings, ranging from registering patents to antitrust litigation to criminal prosecutions to policy work. IP and cyberlaw attorneys work in government, nonprofits, the private sector, and abroad. Often they work at the cutting edge of technological or legal developments and engage with some of today’s most pressing issues. They defend the patents of the world’s largest, most innovative companies and protect the rights of the general public; they work for large, high profile law firms and for small NGOs.
This guide provides an overview of the major IP and cyberlaw issue areas and practice settings. It provides advice to students hoping to pursue careers in IP or cyberlaw and lists fellowships and organizations that may offer employment opportunities. In addition, the guide compiles career narratives from professionals in IP and cyberlaw so that students can learn about the day-to-day work and real experiences of attorneys in their fields of interest.
Patents are exclusive rights granted to inventors to incentivize the creation and dissemination of useful inventions. In the United States, patents are issued by the U.S. Patent and Trademark Office and grant “the right to exclude others from making, using, offering for sale, or selling” an invention within the U.S. or from importing the invention to the U.S.
It is important to understand the distinctions between three different professional players in the patent law world. The first are patent agents. Patent agents have passed the Patent Bar Exam and are licensed to engage in “patent prosecution”: the preparation and submission of patent applications to the U.S. Patent and Trademark Office (USPTO). Patent agents, however, are not lawyers, and so are restricted to patent prosecution before the USPTO. Non-lawyers with strong technical backgrounds (including law students, in fact) can become patent agents.
In contrast, patent attorneys must be admitted to practice law in at least one U.S. state, and therefore, in addition to prosecuting patents, are also permitted to represent their clients in legal matters, such as offering opinions about patent infringement and drawing up contracts. Lawyers with strong technical backgrounds are good candidates for becoming patent attorneys, and some patent agents go on to study and practice law as patent attorneys.
Finally, attorneys with less technical backgrounds but a strong interest in litigation often become patent (or IP) litigators, who represent clients in patent litigation (usually involving claims of patent infringement) in federal court (the U.S. District Courts and the U.S. Court of Federal Claims). These lawyers often litigate other IP issues (such as copyright and trademark) as well. While patent attorneys may be a part of patent litigation teams and supply expert technical advice to the patent litigators, the patent attorneys typically do not take the lead in litigation.
In addition to the obvious substantive differences, there are also some practical differences between patent attorneys and patent litigators. Preparing patent applications can be a more routine and predictable practice and allows lawyers to maintain a schedule closer to a 9-5 workday. By contrast, IP litigation, like all litigation, can be both more unpredictable and more remunerative.
Copyright grants rights to the creator of an original work, including literary, dramatic, musical, and artistic works, and other intellectual works such as software code. Copyright law is intended to incentivize the creation and dissemination of such works and protects work whether it is published or unpublished. Thoughts and ideas that are never recorded or expressed cannot be copyrighted because copyrighted expression must be tangible. Moreover, copyright protects a form of expression, not the subject matter of a work.
Copyrights are governed by the 1976 Copyright Act, which gives authors exclusive rights to reproduce their work, prepare derivative works, distribute copies of the work, or perform or display the work in public. Once an “original work of authorship” is created, copyright is automatically granted, whether or not the copyright is registered. There are benefits, however, to registering with the Copyright Office, including the ability to use U.S. Customs and Border Patrol to stop the importation of items that infringe on the registered copyright. Copyrights are registered by the Copyright Office of the Library of Congress and last for the remainder of the author’s life plus an additional seventy years.
Copyright attorneys are typically either litigators who help their clients enforce their copyrights, or transactional attorneys who help clients manage and license their copyrightable assets.
A trademark is “a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.” It is an exclusive right to use a certain design in commerce. Trademark law is intended to help consumers readily identify the source of a product and to prevent confusion between brands. Registering a trademark does not prevent others from producing a similar good, but it prohibits them from marketing the good with a mark that is similar enough to confuse consumers about the item’s origin.
Trademark lawyers are typically involved in the registration process, provide advice on the development and use of trademarks, or represent their clients in litigation. A party with a registered trademark may sue for infringement if there is a “likelihood of confusion” between two marks, or a party may sue for dilution if another mark weakens the distinctive quality of the trademark in question. Typical defenses against charges of infringement or dilution include fair use, in which a mark is used in good faith for its primary meaning, nominative use, in which a term must be used to identify another producer’s product, and parodies, when they are not closely tied to commercial use and are subject to First Amendment protection.
Trade secrets allow companies to maintain the confidentiality of economically beneficial information. For example, the food industry has many trade secrets, from the recipe for Coca-Cola to the eleven herbs and spices in KFC fried chicken. Many companies rely on trade secrets instead of patents, which are more institutionalized, because obtaining a patent requires full disclosure and because patents expire after twenty years, whereas trade secrets can be kept indefinitely. There is no formal way to protect a trade secret, and there is no legal recourse to prevent someone from using a trade secret once it has been made public. Lawyers, therefore, craft non-disclosure and non-compete employment contracts that both protect trade secrets and comply with employment law.
Technology transfer refers to the process by which governments, universities, and other organizations transfer inventions, knowledge, or materials subject to IP restrictions amongst themselves. Transfer from universities or governments to the private sector is also called technology commercialization. Technology transfer typically entails licensing, which grants IP rights by contract. In these situations, lawyers determine what is being transferred (royalties, patents, copyrights, etc.) and draft contracts. Because the U.S. government and universities commercialize huge amounts of technology, technology transfer is a fast-growing field of IP law.
Competition and Antitrust
Antitrust law protects consumers from excessive monopolies and predatory business practices. The Sherman Antitrust Act of 1890 was the first federal legislation to place limits on monopolies and cartels in order to promote competition, charging the federal government with investigating companies suspected of violating these limits. Although it is over 100 years old, this Act still forms the basis for most antitrust litigation pursued by the federal government.
At first glance, IP law and antitrust law may seem to work at cross purposes. However, many consider the two bodies of law to be complementary, as both are aimed at encouraging innovation, industry, and competition. It is helpful to realize that antitrust lawyers do not engage with IP law in the same way as most IP lawyers. Instead, they must have an understanding of IP law when assessing a merger or other conduct under antitrust investigation, as IP laws are often implicated in these situations.
International Intellectual Property Law
There are three general areas of international IP law: U.S. enforcement of IP rights abroad, cross-border licensing and IP asset management, and cross-border consensus building to create a more comprehensive international IP system. Additionally, IP law opportunities are available in Europe and in some developing countries.
U.S. Enforcement of Intellectual Property Rights Abroad: Protecting IP rights abroad is important but challenging because copyrights, trademarks, and patents granted in the United States are not always legally enforceable abroad. Treaties attempt to make IP rights enforceable in other countries, but the ultimate enforceability of rights depends on the laws of the country in question, the type of IP being protected, and the specifics of any existing treaties. The U.S. has several governmental organizations, including the Office of the Administrator for Policy and External Affairs in the U.S. Patent and Trademark Office and the Cybercrime and Intellectual Property Unit of the Department of State’s Bureau of International Narcotics and Law Enforcement Affairs, which work to strengthen international cooperation.
Cross-Border Licensing and IP Asset Management: Cross-border licensing refers to the transactional process through which products in one country are licensed to be used or sold in another. While expanding to foreign markets can be an advantageous business decision, the details of a transaction may impact the future value of IP rights or the owner’s control over those rights. International licensing may also involve tax, pricing, or compliance issues; when conflicts over IP rights ensue, litigation is sometimes involved. Lawyers in this area of IP law help their clients structure contracts and transactions to effectively manage their IP assets and to ensure future control over their rights.
Attempts to Create a Comprehensive International IP System: Many organizations work to negotiate a more comprehensive international IP system. There have been several bilateral and multilateral agreements that solidify IP arrangements between two or more countries, among most important being the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Berne Convention for the Protection of Literary and Artistic Works, the Hague Agreement Concerning the Deposit of Industrial Designs, the International Convention for the Protection of New Varieties of Plants, the Madrid Agreement Concerning the International Registration of Trademark, the Paris Convention for the Protection of Industrial Property, the Patent Cooperation Treaty, the Trademark Law Treaty, and the Universal Copyright Convention. Organizations that work on this issue include the World Intellectual Property Organization, the U.S. Patent and Trademark Office (Office of the Administrator for Policy and External Affairs), the World Trade Organization, and the European Patent Organization.
Cyberlaw is a relatively new field that draws from many areas of traditional law and is becoming an increasingly important field in its own right. It is multi-disciplinary, covering criminal and civil issues ranging from financial crimes to cyberbullying to First and Fourth Amendment rights. Privacy, control, and access are all topics with which cyberlawyers regularly engage. Increasing numbers of HLS students are pursuing careers in cyberlaw. As a rapidly evolving and expanding field, cyberlaw promises to offer even more diverse opportunities in the future.
There are several major doctrinal areas of cyberlaw, including criminal law, online privacy, health privacy, civil and human rights, net neutrality and regulation, and national security.
A wide variety of crimes may be perpetrated on or using the Internet, including financial crimes, stalking and harassment, human trafficking, and child pornography.
Financial Crimes and Fraud: Computers make both small and large-scale financial crimes and fraud frighteningly easy to perpetrate. Financial crimes involving cyberlaw range from classic one-off fraud cases to increasingly sophisticated schemes that target specific populations (such as the elderly). Identity fraud is also a growing concern, as more and more personal information is stored online and may be vulnerable to theft. Lawyers at the federal and state levels (for example, at DOJ and in state Attorneys General’s offices) all work to investigate and prosecute such behavior.
Stalking and Harassment: Social media websites such as Facebook, Twitter, and LinkedIn, as well as photo sharing programs like Instagram, make information about private individuals more readily accessible than ever. Unfortunately, this accessibility sometimes facilitates cyberstalking, harassment, or cyberbullying. Moreover, the anonymity of the Internet allows some to attack their targets without revealing their own identities. These issues have garnered attention with several high-profile criminal cases involving the suicides of children and teenagers who experienced severe cyberbullying.
Human Trafficking: It is estimated that there are at least 27 million victims of human trafficking worldwide who are forced to work as slaves, sex workers, soldiers, or domestic workers. Human trafficking today is frequently international in nature, and almost always involves use of the Internet. Combating human trafficking is a growing legal field; currently, more than half of U.S. states have statutes that specifically criminalize human trafficking over the Internet. Lawyers may become involved by working on legislation to strengthen punishments for those convicted, investigating and prosecuting potential trafficking rings, providing legal services to victims, and supporting those who are at a high risk of becoming trafficking victims.
Child Pornography: In the United States and many other countries, producing, possessing, and transmitting child pornography is illegal and is punishable by incarcerationThere are policy positions available for lawyers interested in strengthening or creating anti-child pornography legislation, and lawyers engage in the prosecution of those caught possessing, producing, or distributing child pornography.
Government surveillance of online communications raises extensive political and legal implications. Statues such as the Foreign Intelligence Surveillance Act (FISA) and the Electronic Communications Privacy Act (ECPA) were originally intended to protect the privacy of U.S. citizens, but many argue they do not go far enough and have been weakened by subsequent legislation. A number of organizations work against efforts to broaden government surveillance, including the ACLU, Amnesty International, and the Electronic Frontier Foundation, which represents a coalition of organizations in a case against the NSA in connection with the 2013 surveillance program controversy. These concerns can rise to Constitutional levels; the Fourth Amendment, which protects people from unreasonable government searches and seizures, may often be implicated by government online surveillance and intelligence gathering, and the development of jurisprudence in this area is ongoing.
While not implicating the Fourth Amendment, privacy concerns are also raised by the actions of corporations such as Facebook and Google, which manage and manipulate a large quantity of online personal data. Nonprofits working on Internet privacy are often engaged with these issues as well.
Privacy of health information is a specialized area of concern, and with the growth of online medical records, it is also an important area of cyberlaw. The 1996 Health Insurance Portability and Accountability Act (HIPAA) protects the privacy of medical records and regulates the conditions under which medical providers may release patient information. The Affordable Care Act (ACA) includes a requirement that all hospitals and healthcare facilities comply with electronic records law by adopting electronic medical records (EMR) by 2015. Medical providers or businesses that deal with medical records need attorneys to ensure that they are in compliance with HIPAA and other laws; these lawyers may work as in-house or outside counsel. Likewise, attorneys are needed to enforce these federal laws.
Freedom of Expression and Human Rights
The Internet has become vital to freedom of expression and human rights issues. As the Internet has become one of the primary means of obtaining and distributing information, many have come to see Internet access as a human right, not a luxury. Lawyers in many countries work to expand and protect Internet access and freedom of expression. In the United States, lawyers often grapple with these issues in the context of the First Amendment.
Internet Access and Human Rights: There are significant challenges to Internet access internationally. Many foreign regimes limit their citizens’ access to the Internet to preempt actions or publications that could foster anti-regime sentiment or facilitate collective resistance. In June 2012, the United Nations Human Rights Council passed a resolution entitled “The Promotion, Protection and Enjoyment of Human Rights on the Internet.” The resolution affirmed the important role of the Internet in worldwide human rights protection and emphasized that national governments are responsible for allowing their citizens free access to and use of the Internet. Some have interpreted this resolution as the establishment of Internet access as a human right. Lawyers interested in the intersection of Internet, human rights, and political issues may become involved in such advocacy at domestic nonprofits or international non-governmental organizations (NGOs).
First Amendment Rights: There are challenges to freedom of expression on the Internet in the United States as well. Efforts to shield children from inappropriate content or limit hate speech, for example, may be considered violations of the First Amendment. Opportunities for lawyers in these areas can be found at nonprofits and in the private sector.
Regulation of the Internet and Net Neutrality
Net neutrality refers to the principle that Internet Service Providers (ISPs) and governments should not restrict users’ access to any online networks. Under net neutrality, network infrastructure owners would not be able to discriminate on the basis of on content, nor would they or governments be able to restrict access to other networks. Advocates of net neutrality argue it is necessary to protect free communication and expression online. In the United States, the Federal Communications Commission (FCC) currently regulates the Internet (though its jurisdiction is under dispute), and debates over net neutrality and other regulatory issues often take place within the context of FCC rulemaking.
Efforts to restrict or regulate internet access often meet fierce opposition from the public, large companies such as Google, and small online businesses. Net neutrality is an open, controversial issue that may provide many opportunities for lawyers interested in regulatory issues, freedom of expression and communication.
The Internet poses new challenges to national security that all countries, including the United States, are attempting to navigate. Almost all agencies of the federal government, as well as some state and local government agencies, have divisions that deal with cyberlaw and security issues, either directly or indirectly.
The USA Patriot Act of 2001, and the subsequent extension of several key provisions in 2011, gave law enforcement sweeping powers to, among other things, gather intelligence in the US. The Patriot Act amended FISA and ECPA and loosened the language regarding gathering intelligence from American citizens, which had been very difficult to justify under the pre-existing statutes. The Patriot Act, passed in the wake of September 11th, aimed to increase the ability of law enforcement to monitor suspected terrorists and interdict their plans. However, it has been criticized by the civil liberties community for being too broad and invading the privacy of American citizens.
Students interested in the role of cyberlaw in national security can find work in federal intelligence agencies, the US Department of Justice, state and federal legislatures, and the pantheon of civil liberties and privacy nonprofits deeply engaged with these issues.
Where can I practice Intellectual Property and Cyberlaw?
Government lawyers practicing IP and cyberlaw can be administrative or courtroom litigators, regulatory lawyers, legislative staffers, or policymakers throughout federal and state executive and legislative branches. For example:
Intellectual Property: Many governmental organizations hire IP attorneys. For example, the U.S. Patent and Trademark Office, a division of the Department of Commerce, is responsible for registering all trademarks and patents in the United States. Most patent examiners are not attorneys, but IP attorneys are needed to review trademark applications. Other federal agencies, such as the Departments of Transportation and Defense, hire attorneys to prepare patent applications and assist in technology transfer and licensing. There are also federal government offices that handle investigations of IP infringement, such as the U.S. International Trade Commission’s Office of Unfair Import Investigations. Litigation opportunities are available in the Department of Justice, which deals with commercial law, antitrust law, computer crime, and IP, and in state Attorneys General’s Offices, which often have comparable divisions. Additionally, International Trade Commission staff help resolve disputes over the import of patented goods. The White House Office of Science and Technology Policy grapples with issues at the cutting edge of IP policy.
Cyberlaw: There are also many opportunities to engage with Cyberlaw as a government attorney. Many IP issues have cyberlaw components, so the organizations listed above may be relevant to students interested in cyberlaw as well. In particular, the Department of Justice (including the many US Attorneys’ Offices) and state Attorneys Generals’ Offices litigate many issues of cyberlaw, from child pornography to national security. The US Department of Defense, the National Security Agency, and the Department of Homeland Security all deal with Internet issues and employ lawyers to work on security and surveillance policies. The Department of Health and Human Services regulates and enforces health information privacy, and the FCC regulates the Internet itself. Finally, many committees on Capitol Hill and in state legislatures deal with both IP and Cyberlaw issues on an ongoing basis.
Lawyers in the nonprofit world often engage in Constitutional and impact litigation, lobby for legislative and policy change, engage in regulatory advocacy, and offer direct services in the areas of IP and cyberlaw.
Intellectual Property: Nonprofit organizations also hire IP attorneys. Such nonprofits have a wide array of missions, from impact litigation to policy to legislative advocacy. Direct services organizations usually help small, independent IP owners navigate the legal system and protect their innovations. IP lawyers working for direct services organizations help their clients obtain patents, trademarks, copyrights, and other IP protections. Some organizations provide impact litigation opportunities dealing with IP infringement. Lawyers working for policy organizations may draft legislation or comment on new regulations.
Cyberlaw: Many nonprofit organizations work to defend online privacy and civil rights. Others work to protect or expand freedom of Internet access and use. Attorneys at cyberlaw nonprofits may work on policy, research, or impact litigation. In addition, lawyers at nonprofits not specifically dedicated to Internet work may also deal with aspects of cyberlaw. Because the Internet has a significant impact on so many areas of work, interested students should investigate any organizations of interest. It may be possible to combine an interest in cyberlaw with another interest (such as children’s rights, human trafficking, or fraud).
Many IP positions are available in private law firms. While these firms are not public interest organizations, IP is a highly specialized legal area in which there is considerable crossover between the public and private sectors. It may be easier to find an entry-level IP job in a private firm, and developing an expertise in IP law there can sometimes offer advantages in government or in-house work down the road.
Most major law firms have intellectual property groups that perform a range of services. In addition, smaller “boutique” law firms that focus solely on intellectual property issues provide opportunities in litigation, trademark and patent prosecution, and transactional work. Although most entry-level IP jobs are at law firms, companies increasingly hire in-house entry-level attorneys to help manage heavy IP portfolios and assets. Most of the in-house jobs available to junior attorneys are either prosecutorial (preparing patents) or transactional, so students who want to litigate will likely find a more suitable position in a firm.
Technology and Internet companies also offer diverse opportunities for lawyers. Companies like Google and Facebook, for example, employ attorneys to ensure that they are in compliance with legal regulations and to write privacy and user agreements . Lawyers for such companies also work on IP issues; for example, a social media company might have trademark work related to its logo, or a technology company might want to patent an innovation. In addition, some companies, including Google and Facebook, employ lawyers to track and develop Internet and technology policy; these lawyers often collaborate with nonprofit organizations or government to try to shape legislation.
Several international and foreign organizations deal with IP and cyberlaw. Lawyers may work in intergovernmental organizations, perhaps under the auspices of the United Nations or the European Patent Organization. They may also find work abroad at nonprofit advocacy organizations, such as Quadrature du Net in France, which supports Internet freedom and human rights. It may also be possible to find work in another national government; for example, there are national antitrust offices in almost every developed country.
Students interested in antitrust should note that the European Union has competition law designed to support the single market by preventing EU member states from helping their own national companies gain too much market power. The European Commission is responsible for enforcing these laws and hires lawyers to enforce EU policy and directives. The EC thus needs lawyers who are well-versed in competition law, antitrust and IP.
Finally, there are opportunities to engage in IP and Antitrust issues in developing countries, where laws may exist, but enforcement may be lacking, and where there may be significant opportunities to build infrastructure, policies, and programs. Such opportunities might be especially engaging for students interested in international economic development, since functional antitrust law and policy can foster economic growth.
What can I be doing in law school to help my career in Intellectual Property and cyber law?
Due to the continually increasing importance of the Internet, both IP and Cyberlaw are growing fields with numerous potential job opportunities. There are several things law students can do to prepare themselves for a career in IP or Cyberlaw. Students should make sure that they have the necessary academic background to pursue their chosen field. Some students may need a science or technology background, and all students should peruse their institution’s course catalog for relevant courses and clinical opportunities.
Some jobs require a strong understanding of or background in science and technology; patent prosecutors, for example, must have a background in the hard sciences and pass the patent bar. For other IP or Cyblerlaw attorneys, an interest in and familiarity with these subjects is sufficient, but important. At a minimum, IP and Cyberlaw attorneys should be curious about the technologies involved in their work and have the capacity to learn about them.
Seek out a professor whose work interests you. Working as a research assistant helps students build valuable research and academic skills and may also present a great opportunity to develop a strong relationship with a mentor.
Clinics allow students to get hands-on experience with licensing, client counseling, advocacy, litigation, policy projects, and cases dealing with the Internet, technology, and IP. Working in a related clinic will give students a level of experience that may set them apart from other job or internship applicants and, like all clinics, will increase their ability to transition smoothly into practice after graduation. Joining a student-run journal allows you to explore areas of interest and to develop your legal writing and editing skills. Journals may also provide opportunities to assume leadership positions and build your resume.
It is important that law students use their summers to accumulate experience and make connections. Students interested in IP or Cyberlaw should intern at a nonprofit or government agency that will allow them to experience something of the field. Students spending part or all of a summer in the private sector should choose a company or firm that can offer exposure to IP or Cyberlaw issues as well.
The following resources will be useful as you continue to explore this field:
- Harvard Law School Bernard Koteen Office of Public Interest Advising’s Intellectual Property and Cyberlaw, A Career Guide: www.hls.harvard.edu/content/uploads/2008/06/ip-cyberlaw-guide-final.pdf
- American Bar Association: Section of Intellectual Property Law: http://www.americanbar.org/groups/intellectual_property_law.html
- Department of Commerce, U.S. Patent and Trademark Office: https://www.uspto.gov/jobs/join-us
- Library of Congress, Copyright Office: www.loc.gov
- Department of Justice, Antitrust Division: www.justice.gov/atr/
- Department of Justice, Criminal Division, Computer Crime and Intellectual Property Section (CCIPS): www.justice.gov/criminal/cybercrime
- FBI, Cyber Division: http://www.fbi.gov/about-us/investigate/cyber/cyber/
- National Intellectual Property Rights Coordination Task Force: http://www.iprcenter.gov/
- World Intellectual Property Organization (WIPO): www.wipo.int
- ACLU, Technology and Liberty Project: www.aclu.org/technology-and-liberty
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