Hard Truths About Soft IP
Colum. L. Rev. Forum (2023 Forthcoming)
10 Pages Posted: 6 Mar 2023 Last revised: 17 Jul 2023
Date Written: January 1, 2023
People routinely refer to copyright and trademark as “soft IP” to distinguish these practices from another area of intellectual property: patent. But the term reflects implicit biases against copyright and trademark doctrine and practioners. “Soft IP” implies that patent law alone is hard, even though patents are no more physically, metaphorically or intellectually hard than copyrights and trademarks. Despite stereotypes to the contrary, patents are not necessarily more practically hard: while the U.S. Patent and Trademark Office requires technical training for patent prosecutors, which excludes many women and people of color, no such experience is necessary for most patent litigators or advisers. So what’s so soft about “soft IP?” Simple: women are more likely to be practitioners, partners, and professors within copyright and trademark law, and softness has been associated with women for centuries. Softness is resilient, flexible, and supportive, but “soft IP” is rarely invoked to celebrate these connotations. Instead, the term implies, intentionally or not, that people who practice copyright and trademark law are less capable of hard work than patent practitioners. Given the oppression faced by women and people of color in legal practice, little could be further from the truth. This Essay traces problems with presenting patents as hard, as well as the shortcomings of sidelining copyrights and trademarks as soft. It concludes that the term “soft IP” must be retired and replaced.
Keywords: intellectual property, patent, copyright, trademark, soft IP, feminism
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