TEN BASICS OF INTELLECTUAL PROPERTY – DO YOU KNOW THEM? IS YOUR IP PROTECTED?
Intellectual Property (IP) and Technology are daily realities and aspects in our modern business world today. Business owners need to be aware of what IP is and the different forms of protections available to ensure it has obtained the proper protections for its business and also, does not risk infringing or misappropriating a third party’s IP rights. Here are Ten IP Basics every business owner should know:
- IP Rights are Intangible Rights and Most are Created by StatuteThese are unlike personal tangible property rights that can be touched and seen and most IP rights are created by statute. Established Areas of IP Law: Copyright, Trademark (may also be referred to as service marks), Patent, and Trade Secrets.
- Two General Classes of IP Rights Exist (i) “Hard” IP rights, which is a category protected by legislation and registrations (Patents, Trademarks and Copyrights); and (ii) “Soft” IP rights, which is a category not protected by legislation and registration but through Confidentiality Agreements and company procedural policies with agreements and processes to protect the rights (Confidential Information, Trade Secrets and Know-how).
- IP is Found in all Forms of Technology and Multi-media Products Different technologies and multimedia products may incorporate different types of IP and it is important for a Business Owner to be able to recognize the different IP involved.
- Copyright (may recall from the prior very interesting WPD Blog Series). Copyright gives its owner the sole right to produce or reproduce the protected work. Copyright can exist in any original literary, artistic, musical or dramatic work, or any substantial part thereof, in any material form whatsoever. The Copyright arises automatically upon creation of the work as no registration is required (but registration does offer some limited presumptions of validity in the event of litigation). Under Copyright Law, a number of related and more specific rights exist with the right to authorize others to do any of these rights (usually through a license agreement).
- Patents A Patent gives the owner the exclusive right to manufacture, use and sell the invention claimed in the patent with the ability to prevent others from doing the same (most exclusive of all IP rights – protects the ideas in the invention and not just the expression and even protects against independent development). Patent-able Subject Matter: New and Useful Art, Process, Machine, Manufacture or composition of Matter, or Improvement; Novelty; Non-Obviousness; Utility. The term of a Patent is 20 years from earliest filing date of the application date of which Patent was granted (since Patents eventually become public, some businesses may choose not to disclose and Patent but maintain the IP as a Trade Secret instead).
- Trademark Rights (Service Mark Rights) A Trademark (or Service Mark) is any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods (or services with a Service Mark) of one owner, manufacturer or seller from those of another and to indicate the source of the goods. If registered, a Trademark gives the owner the exclusive right to the use the Trademark in the US with respect to goods and services associated with it with the right to prevent others from using the same or confusingly similar marks. Trademarks don’t have to be registered as common law rights exist without registration. If registered, registrations may be renewed indefinitely with continued use of the mark.
- Trade Secrets A Trade Secret is considered to be information that is actually secret in an objective sense. The benefit of a Trade Secret is that it does not expire. A Trade Secret needs to be so closely held within a company and protected to ensure it is actually a Trade Secret and does not get to a third party or become public information.
- Confidential Information (or Proprietary Information) Confidential or Proprietary Information may not necessarily be known only to the owner but may be a compilation of information that has been collected by a company through expenditure of time and resources and therefore, has value without being inherently “secret”. Confidential and Proprietary Information is protected with NDAs and Confidentiality Agreements.
- Know-how and Residuals Know-how and Residuals may be a subset of Trade Secrets or Confidential Information and often licensed concurrently with Patent Rights.
- Business Owners Should Make Sure the Following is Done/Considered for Their Business: Identify very carefully the IP rights that you may have or that you are using and/or licensing; and Consider how can it be used along with the limitations for the use.
Business Owners should keep in mind the importance of understanding IP to ensure the business’s assets are protected (using a license agreement as your valuable tool to protect your assets and rights for your business) and to ensure that the business is not potentially infringing, using without authorization, or misappropriating the IP of a third party.
Once you have an understanding of what IP you have and who many want to use it, it’s time to learn about licensing agreements. Most IP licensing such agreements cover the same basic points, including scope of the agreement, exclusivity or territorial restrictions, financial aspects (advances, royalty rates, and how royalties are calculated), guarantees of minimum sales, the licensor’s rights of monitoring and quality control, among many other provisions. For more information about licensing agreements see WPD’s article here https://bit.ly/2G8QUdQ
Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Business Immigration, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.
This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.
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