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Patent law is unique—few other areas of practice in law select for experiences or training from before law school. While there are tradeoffs to choosing a niche early, patent law has some unique properties that make it worth considering as a path.
There are three key aspects to patent practice: patent prosecution, patent litigation, and post-grant proceedings. Patent prosecution refers to advocating for clients before the United States Patent and Trademark Office (USPTO) to obtain patents. Patent litigation is conducted in federal court by statute. Post-grant proceedings are a relatively new and growing practice of resolving disputes in the validity of patents before the Patent Trial and Appeal Board (PTAB), a unit of the USPTO.
Technical backgrounds are typically more helpful for patent prosecution and post-grant proceedings; these require at least one practitioner on the team to be a member of the patent bar, which requires technical accreditation and passing an exam at the USPTO.
So why practice patent law?
The patent market is consistently hiring. Industries reliant on technology or life sciences make significant investments in research and development, and capture the value of those investments through their intellectual property. Patent disputes are key avenues to thwart competition in winner-take-all markets.
With the advent of litigation funding, even cash-constrained companies can obtain funding to assert their patents. That means that even when economic activity is slower, patent prosecution and litigation remain active, and therefore hiring and workflow in patent practices remain consistent. Compare this to corporate practices, which rise and fall with market activity. Corporate work like M&A begets other corporate work like SEC reporting—when business is good, it's very good, but when it is slow, it can be slow across all corporate areas. Patent work doesn't have these compounding effects, so while it doesn't have the booms, it also doesn’t have the busts; patent practice is very stable.
There are also many ways to practice patent law. There is a proliferation of boutiques for both patent litigation and prosecution. Many pay market compensation, but more importantly, boutiques provide incredible flexibility in how much lawyers work and what their practice consists of, both of which have become more important to lawyers today. In-house roles can also be attractive places to practice patent law. In IP-intensive industries, IP counsel roles can offer a path to the general counsel role. And IP counsel have available a variety of work beyond what’s possible at a law firm.
It’s also important to recognize that patent lawyers can have significant mobility early in their careers. It’s not uncommon to see large law firms seeking lateral IP associates even in their first year. As a legal recruiter, I routinely have clients who lateral early in their careers and obtain signing bonuses because their skill set is so in demand. Patent law is also less dependent on law school pedigree than other practices. Because the technical background is so important, lawyers from non-target schools can end up at the largest law firms. It worked for me—I attended a non-target law school and practiced at an AmLaw 20 firm.
Patent work is also remarkably distributed. While the Bay Area, New York, and Washington, DC, remain the centers for patent activity, cities that aren't otherwise known for being tech or life science hubs have major patent practices. Take Chicago. Chicago is special because it (1) has diversified local businesses, unlike the concentrated industries in places like Boston or San Francisco, and (2) has judges in the Northern District of Illinois who are very invested in patent law (look at the roster of the Linn Inn). As a result, Chicago has a surprisingly strong and stable patent market.
There are tradeoffs to practicing patent law. It requires a significant amount of specialization, which can be risky. Patent litigation is often conducted in a handful of jurisdictions, which have local patent rules. This has the benefit of focusing litigation and streamlining schedules, with the tradeoff that litigators don't exercise their muscles for motion practice.
Depending on what you want out of your legal career, patent law can be an attractive choice for its consistent demand and the many ways to practice.
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After practicing patent litigation at Goodwin, Khurram Naik founded Freshwater Counsel, a legal recruiting agency. He shares insights and stories from successful lawyers on LinkedIn.
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