Intellectual Property Solutions

What to do with Intellectual Property Rights

Intellectual property rights can be used to meet many different business objectives.  Most people recognize that they can use intellectual property rights to stop direct competitors.  But, intellectual property rights can also be used for many other purposes.  A skilled and creative intellectual property lawyer, working closely with the business executives, can suggest innovative uses of intellectual property rights, and even how to improve the ability for the business to develop useful intellectual property rights.

Many businesses recognize that they can use intellectual property rights (patents, trademarks, copyrights, and trade secret rights) to file a legal action against someone (such as a competitor) who violates those rights. However, you can use intellectual property rights for many other purposes that may be even more helpful to your business. Below are a few uses that may be possible.  

The above ideas represent what may be possible in different situations, and are not exhaustive of the possibilities. Of course, whether and how these or other ideas may apply to your situation will vary. Therefore, you should consider and implement any of them only with qualified professional assistance.

A professional advisor with experience matching legal solutions to business goals can help you identify how to implement a program to help you meet your goals.

In many respects, intellectual property rights can be treated the same as rights in other types of property (land, buildings, trucks, equipment, etc.). For example, an intellectual property right may be sold, leased (licensed), pledged, or otherwise transferred, either in its entirety or partially. There are, however, restrictions on transferring trademark rights apart from the business with which the trademark is associated.

A trespass upon an intellectual property right is generally referred to as an "infringement." Redress for such infringement may be sought in a court action for enforcement of the particular intellectual property right. The elements that have to be proved to support a case of infringement differ for each type of intellectual property. Infringement cases are usually filed in court. However, there are some instances in which infringers can be pursued in other forums.

Patents

A patent is a grant by the government to the inventor of an invention. A patent grant allows the inventor to prevent others from making, using, or selling, in the country in which the patent is issued, the invention covered by the patent.

The most common type of patent is the utility patent, which may be granted to anyone who invents a new and useful process, machine, article of manufacture, or composition of matter. Design patents are also available to those who invent new, original, and ornamental designs for articles of manufacture. Plant patents may be granted to those who invent or discover and asexually re-produce (by grafts and cuts) distinct and new varieties of plants.

To get a patent, you must file a patent application with the government. The patent application includes a complete description of the invention. Patent protection does not begin until the government has examined the application and determined that the invention is entitled to a patent.
Patent protection must be obtained in each country in which it is desired.

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Trademarks

A trademark is a word, symbol, design (logo), combination of letters or numbers, or other device (including a sound or smell!) that identifies and distinguishes products and services of one source from those of another. Trademarks represent the "goodwill" of a business. In many instances, the term "trademark" is used for a mark associated with goods, and of the term "service mark" is used for a mark associated with services. Here, we will use the term "trademark" regardless of whether it is applied to goods or services.

Customers distinguish that business and its goods and services from other businesses on the basis of the trademark.

The owner of the trademark may prevent another business from adopting and using a trademark that is likely to cause customers or potential customers to be confused as to the source of the goods or services to which the two marks are applied. "Likelihood of confusion" is determined by comparing both the marks themselves and the goods or services to which the marks are applied.

In the United States, you can acquire trademark rights simply by using your trademark. You do not have to register your trademark with the government. However, registration simplifies certain aspects of the trademark enforcement process if you ever need to pursue an infringer. In addition, registration of your trademark puts your trademark in the databases that others are likely to search before adopting a new trademark, which may reduce the possibility that they will adopt a trademark that is likely to be confused with your trademark. Finally, in certain circumstances you can file a registration application to "reserve" a trademark before actual use of the trademark has begun.

You may register your trademark in the United States Trademark Office for nationwide protection, if certain conditions are met. You may also register your trademark in each state in which the trademark is used. You may use the trademark registration symbol ® only if the trademark has been registered with the US Trademark Office. Without a federal registration you should use the trademark symbol ™.

In most countries outside the United States, you can get trademark rights only by registration. In those countries, use of the trademark does not confer trademark rights.

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Copyrights

Copyright is an exclusive property right in an original work of authorship that is fixed in a tangible form. The copyright allows the copyright owner to prevent others from making copies of the work, presenting public performances of the work, and certain other specific activities.

Many types of works may be copyrighted: literary works (including computer programs and databases); musical works (including accompanying words); dramatic works (including accompanying music); pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; architectural works; and sound recordings.

Copyright protection does not extend to any idea, procedure, process, concept, or discovery. However, the specific explanation or illustration of such ideas may be protected by copyright.

Copyright protection begins immediately when the work is created. You do not have to register the copyright. However, you get certain advantages if the copyright is registered, and you must register your copyright before filing a lawsuit against an infringer.. Whether or not you register the copyright, you may put the copyright notice on the work ("© [year of first publication], [name of copyright holder]").

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Trade Secret Rights

A trade secret right is a right to keep information secret. The "trade secret" (or "confidential information") may be any information that has value because it is not widely known. Trade secret rights are often claimed in "know-how" that provides a competitive advantage, such as manufacturing techniques, financial information, customer lists, and research and development activities.

The key element of a trade secret is its secrecy. You must take certain steps to protect the secrecy of that information. Such steps may include keeping the information under lock and key, limiting who has access to the information, notifying those who have access to the information of its secrecy, and requiring those who have access to the information to sign confidentiality (or non-disclosure) agreements.

There is no government registration process for trade secrets. You may not be able to get the same protection for trade secrets in countries other than the United States.