Charlotte partner Nichole Hayden is a registered patent attorney and focuses on helping clients obtain patents to protect their inventions and helping clients obtain trademarks to protect their brand. Nichole manages global intellectual property portfolios, provides advice and IP-related opinions, and assists in mergers and acquisitions related to intellectual property.

What inspired you to become an intellectual property attorney?

I was a Chemistry major in undergrad, which I loved from a theoretical perspective, but I realized early on that I wasn’t going to enjoy working in a lab setting. I was at a bookstore one day looking at study guides for graduate school, clueless on what my next step would be, when a retired patent attorney introduced himself and started chatting with me. I had no idea what a patent attorney was or did, but he took the time to explain it to me – a marrying of my love of science with advocacy under the law. I didn’t have any attorneys in my family, and I had never even considered going to law school, but over the course of our conversation he convinced me to buy the LSAT study guide and consider law school. To this day, I don’t know who this gentleman was, but he had a tremendous impact on my career, and I wish I had been able to thank him for that.

What exactly is intellectual property prosecution?

We are attorneys with science degrees that work with individuals, startups, and companies of all sizes to draft patent applications that will protect their inventions. We then work with the patent office (in the U.S. and internationally) to obtain a scope of protection that is acceptable under the law, but also protects the commercial version of the invention. In my practice, I also draft and prosecute trademark applications which protect the client’s name, logos, and brand. I draft agreements related to intellectual property development, transfer, or licensing, and work with M&A attorneys on transactions that involve intellectual property.

What recent changes are you noticing in your practice?

 Since a 2014 Supreme Court decision relating to the question of whether computer-implemented inventions are abstract ideas, and therefore are not patent eligible subject matter, obtaining patent protection on software inventions has become more difficult. Often, a rejection which asserts that an invention is not patent eligible is difficult to overcome and arguments regarding that rejection overwhelm the prosecution process, increasing the time and cost of obtaining a patent. As software inventions continue to proliferate, the USPTO has introduced a new program, the Deferred Subject Matter Eligibility Response pilot program, which rolled out in February 2022. This program allows certain applications to defer arguments regarding patent eligibility until prior art rejections are addressed. We are hopeful that this program will improve the efficiency of obtaining software patents and improve patent quality.

What are some of the traits that you admire the most amongst your peers?

I feel fortunate to work for a firm where my colleagues have an extraordinary depth of knowledge and experience in nearly every area of the law. I feel confident that if a client asks a question that is outside of my realm, I will find the right person amongst my NMRS peers. My Nelson Mullins colleagues are smart, creative, and always willing to help.

What’s one piece of advice that greatly impacted you and your career trajectory?  

Find something you love. It would be hard to say that “it doesn’t feel like work,” as the rest of the saying goes, because the work is certainly demanding, but I am one of those rare species that loves what I do. When you love what you do and you work hard, the rest falls into place.