Intellectual Property, Law Schools

1L Courses Through An IP Lens

Thoughts on how each of the typical 1L classes emphasizes skills and reasoning applicable to various aspects of IP practice.

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Law schools around the country are welcoming their 1L classes. The masked and (hopefully) vaccinated aspirants are surely brimming with excitement and nervous energy, eager to begin the arduous trek through their 1L year. Among the hordes are undoubtedly some students interested in a career as an IP lawyer, just as there are likely some students who might end up in IP practice after law school, even if they might not be thinking along those lines as they start their legal studies. Either way, current IP practitioners would surely join me in wishing all our future IP colleagues the best of luck as they start their law school journeys. Our profession always benefits from the yearly injection of graduating law students into IP groups nationwide. We hope, therefore, to welcome this year’s crop of 1Ls to the IP bar in just three more years.

While 1L classes typically follow a set curriculum, with little to no specific emphasis on IP issues per se, future IP practitioners will likely find themselves reflecting back on lessons from their 1L classes, both at the start of their legal careers as well as later on. As with anything, a strong grounding in the general legal principles taught throughout the 1L year provides the necessary foundation for a successful legal career — in IP as well as any other legal discipline. Moreover, I would suggest that for aspiring IP practitioners, teasing out the key IP-related skills and concepts from their 1L classes is a worthy endeavor.

Looking at 1L courses from an IP lens is an exercise that can enrich the 1L experience for law students, while also providing a starting point for thinking about IP practice with a broader perspective in hand. To that end, I offer the following thoughts about how each of the typical 1L classes emphasizes skills and reasoning applicable to various aspects of IP practice. (Keep in mind that I am not a legal academic, but I am invested in increasing IP literacy among law students, especially as they will be graduating into a world where IP issues are increasingly important for both economic and geopolitical reasons.)

The benefits to future IP lawyers of introductory legal reasoning, (i.e., how to read cases, as well as legal writing classes, are obvious. 1Ls would be wise to resist the temptation to give these classes short shrift, even though they tend to grant fewer credits relative to the year-long 1L mainstays like Contracts and Property. Both of the latter classes are, of course, of major relevance to IP practitioners but for different reasons. We can start with Property, which focuses more on what is called real (physical) property rather than intellectual property. But that distinction does little to mask the philosophical underpinnings for property rights in the common law legal system that are shared by both classes of property, providing useful context for practitioners when confronted with issues such as the (disputed) question of whether patents are private property or public licenses, as just one example. Likewise, the lessons learned in Contracts can help to provide a basis for handling several critical aspects of IP practice, from licensing to assignments to nondisclosure agreements.

Even Constitutional and Criminal Law classes have a lot to offer future IP practitioners, with their focus on understanding statutory language and learning to get comfortable with probing the boundaries of the statutory mandates. Considering that many of the IP laws arise out of Congressional action, understanding how those laws both developed over time and were sometimes passed to harmonize disparate state law treatments of IP issues (at least in the case of trademarks and trade secrets) helps younger IP lawyers appreciate the breadth and depth of IP practice. Likewise, criminal law’s exploration of the role of emotion in explaining behavior can be very relevant to IP practitioners, who are often tasked with managing the expectations and wishes of inventors and creators, often in highly charged emotional contexts of alleged infringement or IP bullying by the more well-resourced counterparty.

Saving the best for last for future IP litigators, at least in my view, we have Torts and Civil Procedure. Starting with the former, Torts provides a critical introduction to the constructs underlying our assignment of legal liability, based on acts of trespass on the person or property of the other. Perhaps no other first-year class demands as close a reading of fact patterns and learning how to weigh often disparate holdings, while also challenging budding lawyers to really understand the importance of precedent in the unfolding of the common law. As for Civil Procedure, I can testify that questions of procedure in federal courts arise all the time in litigation practice, especially when an IP litigator is forced to learn how to overlay the different rules governing certain types of cases. In a patent case, for example, in addition to the FRCP, one is confronted by the local rules of the particular district where the dispute is situated, as well as the local patent rules. In light of that, IP litigators who learn to love their Civ Pro courses will definitely benefit.

Ultimately, the 1L year is perhaps the most formative educational experience many of us will ever have the pleasure of going through. The earlier in the process of their legal education that aspiring IP lawyers recognize the importance of each of the 1L required courses the better. Learning to assimilate the lessons learned in those 1L courses will be most helpful as those budding IP lawyers jump into the start of their practices. As for general 1L advice, 1Ls should keep in mind that a sense of intellectual curiosity, hard work, and learning to give law professors what they want on exams are all critical ingredients for a successful 1L year. I wish the class of 2024’s future IP lawyers the best of luck as they start their path toward joining the bar!

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Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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