What is Intellectual Property and What Can An Intellectual Property Lawyer Do For Me?
One of the most valuable assets any innovative business can have is intellectual property. Intellectual properties are creations granted certain protections under property law to encourage innovation. Generally, they can be described under four categories: trade secrets, patents, trademarks, and copyrights.
What is a trade secret?
The classic example is the Coca-Cola formula. Coca-Cola guards its formula very closely as it’s “often imitated, never duplicated” business model has developed a loyal following to the taste. For information to be considered a trade secret it must be commercially valuable, guarded from disclosure, and not general knowledge. The company must take safeguards to assure that their protections are established. State law governs trade secrets, and some states have not enacted the act, so the protections are not quite as robust as some of the other types of IP discussed below.
What is a patent?
Patents give entrepreneurs a right to exclusion, meaning they can prohibit others from “making, using, importing, offering for sale, or selling the invention.” Patents are granted under Federal law and allow the holder to petition the court to grant an injunction to stop the usage of invention.
The US Patent and Trademark office reviews patents and decides whether to grant them. Generally, it is a good idea to file a provisional patent before selling the product, as sale in the marketplace can negate any patentability. Provisional patents are less expensive and provide beefy protections for a year—often enough time to determine marketability of the product. After that, if full patent protection is sought, choose your patent attorneys wisely, they are not created equal. Usually, you get what you pay for when it comes to patent protection.
What is a trademark?
Trademarks are distinctive logos, marks, words, designs, or symbols that are associated with a company’s brand. To receive Federal protection under the Lanham Act, a trademark must be registered. The requirements for registry include subject matter that is trademarkeable, distinctive mark, and not likely to cause confusion.
This standard of “likely to cause confusion” is also the standard to enforce the trademark. Discussing your business name with a trademark attorney, and using some common sense, can help you steer clear of confusing consumers. Thinking of starting up “Guns Are Us” but worried about “Toys R Us” coming after you? A court said it was ok.
What is a Copyright?
One of the main protections available to software makers is copyright law. Copyrights generally grant protection from copying the creative work for the author’s life plus 70 years. The standard is that the work must be “fixed in a tangible medium of expression.” One of the main issues under copyright in the business setting is the “work for hire” doctrine. Usually, copyrights belong to the creator of the work. Under the work for hire doctrine, however, an employer owns copyrights for works done through its sponsorship or employment. Many disputes arise when a company does not clearly spell out who owns the code that has taken years to develop. Make sure a competent lawyer has helped you make your work for hire agreements as strong as possible.
Intellectual property can make or break a business model. Get some attorneys that understand it, and have them help you conduct IP audits to ensure you’re IP is where you want it to be.
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