What is Intellectual Property Law?

By Dennis Crouch

Intellectual Property Law is really a general term used to describe a host of more particular legal regimes. Parties do not apply for “intellectual property rights” or go to court to enforce “IP rights.” Rather, parties hold and enforce patents, copyrights, trademarks, trade secrets, etc. In writing about the area, legal academics often use the broader term Intellectual Property to suggest that their results and conclusions apply broadly. It turns out though that very often, articles that purport to be directed to Intellectual Property in general are not so broad in their specifics but instead focus on only one or perhaps two particular areas of intellectual property law. To look into this process, I collected set of about 350 law journal articles published 2011-2013 that include the phrase “Intellectual Property” in their title. I then parsed the articles to identify which particular areas of intellectual property law served as the article focal points. I did this simply by counting the usage of words such as “patent”, “copyright,” “trademark,” and “trade secret” in each article.

Results: Of the self-styled “Intellectual Property” articles, a full 1/3 focused almost entirely on one area of intellectual property. The threshold for this result was that >90% of specific references were directed to one particular area of IP law. Another 1/3 of the articles focused almost entirely on two areas of intellectual property. Intellectual Property articles in this sample were most likely to focus on patent law as shown in the chart below. Of the paired-areas, the most common are Patent+Copyright and Copyright+Trademark but not Patent+Trademark.

26 thoughts on “What is Intellectual Property Law?

  1. “Intelelctual property” is an invention of the French Revolution (1789). Patents used to be privileges, but the very idea of a “privilege” was considered contrary to the spirit of freedom, quality and fraternity of the French Revolution. In contrast, “propery” was promoted to a “holy and inalienable” right by this revolution, so patent proponents for political reasons preferred an association with “property”.
    But of course this is no property like real property: unlike real property, it does not last forever, and it essentially relates to information, a non-rivalrous good.

    That was the reason why the great German scholar Josef Kohler (1849-1919) proposed the term “immaterial goods”, which is still occasionally used in German language (“Immaterialgüter”).

    Liguistically, “intelelctual property” is no “hyponym” of property, like a “former presdident” is not a *type* of president, a false Picasso is not a kind of Picasso and a glass eye is not a kind of eye.

    How is this reconciled with the perception that the protection of intellectual property is a fundamental right? The answer is that “intellectual property rights” are protected *as soon as they have been granted*. Which makes sense: it is a fundamental right that all rights representing value can not be withdrawn (expropriated) by a “decent” government, at least not without due compensation.

  2. I always had the impression that “intellectual property attorney” referred to large firm litigators without technical training, in contrast to registered patent attorneys who chiefly prosecute applications.

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  4. “2011-2013 … Of the paired-areas, the most common are Patent+Copyright and Copyright+Trademark but not Patent+Trademark.”

    Well, the Omega v. Costco case proceeding during the period under study was about turning copyrights into de facto permanent patents on a machine. The Kirtsaeng v. Wiley case was also very prominently trying to use copyrights as if they were trademarks to control international marketing segmentation.

    It’s only a matter of time before somebody thinks of a way to use a patent as if it were a trademark or vice versa.

    1. Patents and Trademarks, Owen? Standard practice in Europe to patent a design and then, when it has become well-known through years of use, register it as a distinctive trademark.

      I should add that what you call a “Design Patent” we in Europe call an “EU Registered Design”. They are cheap, quick (no examination on the merits)and therefore dirty, but nevertheless are potentially very potent indeed.

      Who acts for those who file and register their designs in Europe? IP lawyers of course.

  5. I wonder what disparate lines we are going to see developing in this thread. I will offer my thought and see where it leads.

    The world of today is displaying ever more tendencies both to specialise ever more deeply while at the same time cohere in ever larger groupings. Scotland wants to break away from England yet remain in a “Pound Sterling Currency Zone” and also in the EU. Consider also heterogeneous Germany, Yugoslavia, Ukraine, Belgium, Spain.

    I see the same tendencies in IP.

    Thus, individual patent practitioners specialise ever deeper in specific technical fields and specific legal areas, but they congregate in ever larger law firms, that offer full spectrum service.

    Consider materials scientists in the UK. There used to be a professional body (Learned Society) for every specialism (ferrous, non-ferrous, polymers, ceramics and so on) within the profession. Now there is only one professional body, catering for all members of the profession. But individual members of the profession get ever more specialised, in what they know and do.

    Personally, I react negatively to the resume of an individual American attorney at law that declares that “Mr X is vastly experienced in a wide range of technologies that include telecoms, biotech, metallurgy and vehicle transmissions”. I think that any one patent attorney should touch only those technical fields in which they are perceived by their client’s inventors to be a safe pair of hands, that is, not venturing beyond those fields that their science or engineering university studies have equipped them to handle.

    In Europe, only those practitioners in sole practitioner firms hold themselves out to be competent to handle both hard and soft IP. Perhaps that is because the patent attorney and the attorney at law have always had their own respective separate professional status, and both are very jealous of their complementary and different roles.

    But it is no different in the USA, right?

      1. I agree in part as to this day rue having voted to change the name from the APLA to the AIPLA. I say “in part” because at or about the time of the name change I began to notice that general practice firms began to take notice of the field and insinuate themselves because of income potential. Firms that I had long know were suddenly “IP” experts and holding themselves out as such to a largely unsuspecting public. My initiation involved a patent law suit where the name partner undertook the representation of a patentee in a “vanilla” infringement suit, and then undertook a three day course to learn about patent law. Of course, his client went down in flames even though the case was meritorious. A few years later I happened to be sitting across from him at a dinner, mentioned my areas of practice, and was quite surprised to hear him tell me about that earlier case and admit that in hindsight he probably should have secured co-counsel who actually practiced patent law. Too bad he did not mention any of this to his former client…

    1. Max, I was struck by this thought when watching the Olympics: Why doesn’t the EU field a national team and ban teams from individual states? Does the US field one national team or 50 state teams?

      1. Ned because the EU is not The United States of Europe. One doesn’t carry an EU Passport but, rather, a Passport issued by one of the EU Member States.

        Margaret Thatcher thought the EU should be no more than a free trade area, and many today share her view. It still hasn’t got very far beyond that, as far as I know.

        I might as well ask you why didn’t the USA ban Mexico and Canada from sending competitors to Sochi, and why doesn’t the USA have 50 different passport issuing authorities?

        Interesting, your statement that “it all went wrong in the USA” when the APLA changed its name to the AIPLA. Not sure what “it” is, mind you.

        1. Well Max, long term, the EU needs to move on and form a national government composed of semi-autonomous provinces, just like the US or the old Roman Empire. The way forward lies in its history.

          Regarding a union of US and Canada, why not look to a larger union, the US, the UK, Canada, Australia and New Zealand — a union composed of the British people. Lets call it, Britannia. We tend to operate as a union already thanks to Churchill and Roosevelt.

          1. Ah Ned, what is “British”? The folk that live on “The British Isles” perhaps. But those in the Republic of Ireland part of The British Isles don’t want to be “British” and now the folk that live in the “Scotland” part of the main island, Great Britain, are expressing similar yearnings. That other part of the big island, called Wales, has had its own government for some years now. On the British islands, devo-max is all the rage.

            And you think that after the British Empire broke up, after the demise of the British Commonwealth, the next logical development is the Britannia Union? Your problem is that the English don’t want to partner with any other nation. They don’t like the Welsh, they don’t like the Scots and they surely don’t care for the Irish. If they can’t rule the peoples of the world any more, they want to be like the mountain cantons of Switzerland.

            As to your English-speaking union of US, UK, Canada, AU, NZ, I gather it is already, in the field of intelligence gathering and sharing, a very real entity, called “Five Eyes”:

            link to en.wikipedia.org

            Perhaps we all “need” to “move on” from there?

            1. I am biased of course. I am English, but partly Irish (from the Republic, not from the British part). The majority of English opinion on Scottish independence can be summed up by “don’t let the door hit you on the way out”, LOL! Meanwhile, only about 30% of Scots seem to actually want independence, so it probably won’t happen.

          2. A larger union? Are you serious Ned? The trend is the other way. The USSR is in the dustbin of history, Czech and Slovakia are split, Yugoslavia fragmented first chance it got, and even tiny, ancient federations – think Scotland and England, Flanders/Wallonia, and Spain/Catalonia – are trending to tinier. And the wheels are coming off the EU bus. Angie cannot kick that can down the road much longer.

            Every huge thing eventually becomes too big to govern, be it an empire, the USSR, or a 50 state Continental behemoth whose power structure has remorselessly percolated from the local to the singularly centralized. Which is the perfect recipe for the exact opposite of the increasing agglomeration you hypothesize.

            1. True to some extent, Tour, but how come every emerging nation in Europe wants to be an EU member and Turkey is hopping mad about the resistance some EU members have to its joining the Club? Who wants the EU to fail? Only some misguided people in England.

              As ever, people want it all; the advantages of Club membership while paying none of its membership dues.

              As ever, it is easier to break things down than build things up: and populist politicians are the worst offenders. Whenever anything goes wrong, in any EU Member State, the populist politicians there always have the answer ready pat: the EU is to blame, of course! The press love it and gullible people believe it.

              Mind you, the EU is slow. If the USA is an eagle and China a dragon, the EU is a tortoise.

              The peoples of the world stopped the hole in the ozone layer getting any bigger, by imposing a world-wide ban on the cause, certain fluoro-carbon refrigerants. Can they do it again, with CO2 emissions?

    2. ““Mr X is vastly experienced in a wide range of technologies that include telecoms, biotech, metallurgy and vehicle transmissions”.”

      Seriously. And I’ve seen more than a few. I looked up this one lady attorney back in the day to get her phone number because the one they listed didn’t work. It said all of her background was in bio, and yet on her thing she listed a slew of EE fields as being in her backyard. Of course she seemed entirely incompetent about the field I called to discuss (huge surprise, considering her bio and the issue I was calling about). May as well not even bother discussing such things with folks. Are they that desperate for clients?

      1. Thanks for the laugh, 6. And for confirming my point. So you guys in the USA don’t discuss exclusively points of law then. You also discuss the subject matter of the case? You’re not so different from us in Europe then, after all.

  6. “Intellectual Property” is a pompous, vile term invented by the blathering white wigged bores of London that prowl the foggy hauls of justice while brown-nosing their local bench inebriate middlemen (aka judges) who deliver the unintelligible edicts to separate the citizens from their property, as so aptly characterized by Dickens and Shakespeare.

  7. Ugh. Does anyone else find it galling that so-called IP attorneys hold themselves out as go-to people on patent law?

    How many “IP attorneys” are Administrative Patent Judges. Anybody know — or does the law require that they actually be licensed patent attorneys?

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