Imagine for a moment that you are a law student. You are interested in intellectual property law but you don’t qualify to sit for the patent bar. You know that means you can’t do patent prosecution work. You’re not too worried about that because you’re more interested in trademark or copyright work anyway. But still you wonder: How can you concisely convey your professional interests to your professors, peers, and potential employers? One common answer is to use the phrase “soft IP.”
As Amanda Levendowski points out, “soft IP” is frequently used to distinguish trademark and copyright law from patent law (despite longstanding criticism from Eric Goldman). But, she argues, this phrase “reflects implicit biases against copyright and trademark doctrine and practitioners.” (P. 102.) Levendowski demonstrates that the phrase “offers no conceptual, doctrinal, historical, operational, definitional, or practical clarity.” (P. 109.) So, she asks: “What’s so soft about ‘soft IP’?” (P. 102.) One answer, she suggests, is that the fields of copyright and trademark law tend to be associated with women:
Society has projected softness onto women for centuries. Softness can be powerful. It’s resilient. It’s flexible. It’s supportive. But I have never heard “soft IP” invoked to signify the strengths of softness, all of which happen to be indispensable to effective lawyering. Rather, fields and skills associated with women are routinely disregarded for being “soft” in ways that reflect a lack of respect for women and the rigor of their work. (P. 111.)
Thus the phrase “soft IP,” Levendowski writes, “suggest[s] that people who practice copyright and trademark law are, unlike patent practitioners, less up to a hard challenge.” (P. 111.) This, according to Levendowski, “is perhaps the most insidious aspect of ‘soft IP’: By implying that copyright and trademark work is not hard, the term erases that being a woman in any practice of law can be very hard.” (P. 112.)
And what’s so hard about “hard IP” anyway? As Levendowski notes, patent law isn’t intellectually “harder” than other forms of IP law or practice. For example, she notes that it’s not “harder” in the sense of being physically more tangible. And patent protection isn’t limited to inventions in the “hard sciences”—as Levendowski observes, utility patents can be used to protect a pool full of sprinkles and, also, design patents exist.
Indeed, the recent battle over the creation of the new design patent bar illustrates many of the points Levendowski makes in her article.
In 2022, the U.S. Patent & Trademark Office (USPTO) released a request for comments seeking input on, among other things, the question of “whether the creation of a separate design patent practitioner bar would be beneficial to the public and the Office.” In January 2024, it started allowing people who have certain art or design backgrounds (specifically, those whose backgrounds would qualify to be design patent examiners) to apply to join a new design patent bar.
No matter how many people end up applying to or joining this new design patent bar, this change constitutes an important recognition of the value that people with art and design backgrounds can bring to design patent law. It is also an important corrective to the completely illogical rule that existed before, where someone with an art degree was deemed competent to examine design patents but not to prosecute them. That made no sense.
Nonetheless, a number of patent attorneys filed public comments opposing any change to the existing gatekeeping system. Some of these comments reflected the kinds of biases Levendowski describes, suggesting that people who don’t have science and technical degrees aren’t as smart—and haven’t worked as hard—as people who qualify for the general patent bar. For example, one commentator who appears to be a patent attorney suggested that anyone without a science or technical degree would necessarily be a “second-rate practitioner.” One anonymous commenter, who claimed to be a patent attorney, argued that letting people without science or technical degree prosecute patents would constitute “lowering the bar” and even suggested that people with other degrees lacked “merit” and a “willingness to follow the rules.” The AIPLA suggested that attorneys without science or technical degrees are less ethical and more likely to fail to adequately advise and refer their clients. (For one response to this accusation, see my own public comments.)
In some ways, it’s astonishing to see attorneys express such open disdain for their fellow professionals and to publicly embrace these kinds of stereotypes. On the other hand, perhaps it’s not surprising in light of the culture and dynamics that Levendowski describes. If you have spent your career denigrating certain colleagues’ work as “soft” perhaps it’s not surprising that you see them as a “lower” level of practitioner. This may be especially true in a world where those colleagues have accepted—and perhaps even themselves adopted—the “soft IP” label.
Like Levendowski, I’ve used the term “soft IP” in the past. As a student and a young attorney, it seemed like a helpful shorthand to describe the kind of work I wanted to do. And yet, I was never fully comfortable with the phrase—especially when it was used by patent attorneys. Levendowski’s sharp, smart, and incisive essay helped crystalize, just in my own mind, the sources of and reasons for that discomfort. In the end, she makes a compelling case for abandoning the phrase “soft IP.” This essay is well worth your time—and that of your students.
