IP Law: Protecting Your Company’s Intellectual Property

“Business law is based on common sense. You can buy or sell breakfast, a toaster or car repair without a lawyer. Intellectual Property is different. Common sense does not always apply to IP. This is dangerous because IP is often a valuable competitive advantage, e.g., McDonald’s trademarked name and golden arches, Coca-Cola’s secret formula, Microsoft’s copyrighted software, IBM’s patents…” (From Intellectual Property Basics by Jackson Walker) 

Whatever your business, the success of your company depends on the protection of its intellectual property. To help you understand the basics of IP law and the steps for protecting your company’s intellectual property assets, here’s a roundup of recent updates from lawyers and law firms on JD Supra. Think of it as your very own IP law primer:

On trademarks… 

“Most companies, especially those starting out, do not realize that from the start they already have and own a trademark. A trademark is defined as any word, symbol, phrase, device, or combination thereof used to identify a source of a good or service. Trademark rights do not depend on registration with the US Trademark Office, but arise as soon as use of the mark is made in commerce. These are known as ‘common law’ rights. Thus, your company name, the names of your products and services, any marketing tag lines, or logos are trademarks already owned by your organization and enforceable against third parties. (From How to Protect Your Companies Most Valuable Asset by Dinsmore & Shohl LLP) 

On patents…

Originally proposed in 2005, the America Invents Act (‘AIA’), colloquially known as the ‘patent reform bill,’ was signed into law on September 16, 2011. This represents the most dramatic change to the U.S. patent law since the 1952 revision… The AIA affects decisions on what should be patented, when a patent application should be filed, and how a patent application should be filed. Patent applicants must be aware of the provisions in the new law in order to optimize patent protection for the intended business purpose and avoid pitfalls… [A] patent applicant must synthesize clear business objectives with a detailed understanding of provisions under both the AIA and the prior law in order to maximize the value of technical innovations.” (From Obtaining Patents Under the America Invents Act (Patent Reform) by Venable LLP) 

On copyrights in the internet age…

“During recent years, the Internet has become the basic foundational infrastructure for the global movement of data of all kinds. With continued growth at a phenomenal rate, the Internet has moved from a quiet means of communication among academic and scientific research circles into ubiquity in both the commercial arena and private homes [and] is now a major global data pipeline through which large amounts of intellectual property are moved. As this pipeline is increasingly used in the mainstream of commerce to sell and deliver creative content and information across transnational borders, issues of intellectual property protection for the material available on and through the Internet are rising in importance. Copyright law provides one of the most important forms of intellectual property protection on the Internet…” (From Advanced Copyright Issues on the Internet – September 2011 by Fenwick & West LLP) 

On copyright infringement lawsuits…

“Over the past decades, and consistent with international norms, Congress has amended the law to diminish the importance of formal requirements for copyright protection, such as having to publish a work with the proper copyright notice affixed. Any copyright owner who seeks to enforce his or her copyrights in court, however, must still satisfy specific legal requirements. While these requirements, for the most part, are not formalities per se, they all have the potential – much like the formalities of days gone by – to trap unwary copyright owners and preclude any meaningful copyright protection.” (From What You Need to Know Before You File: Legal Requirements for Bringing a Copyright Infringement Lawsuit by White & Case LLP) 

On trade secrets…

“Between James Bond’s brand of espionage and the emotional reaction when someone trained and trusted leaves and goes to work in competition lie most fact situations that give rise to trade secret disputes. These wrongs and their subjects overlap legal disciplines of intellectual property, employment and unfair competition…” (From A Multidisciplinary Approach To Trade Secret Protection in the Digital Age by Ladas & Parry LLP) 

On controlling the costs of protecting intellectual property…

“Patents are important tools for protecting a business from its competitors and carving out markets worldwide. Because patents are often a key feature in many business models, many businesses are involved not only in developing intellectual property through their innovations but also in actively securing protection of their intellectual property rights in domestic and foreign markets. However, filing for and maintaining domestic and international patent protection can be expensive and unpredictable, and it can be difficult to accurately budget and control patent costs, particularly for international patents. By reducing direct costs as well as internal management costs, businesses can increase the profitability of their patent assets while simultaneously controlling their budgets.” (From Tips on Controlling Intellectual Property Protection Costs: What Business Owners Need to Know by McDonnell Boehnen Hulbert & Berghoff LLP) 

On monetizing intellectual property…

“Companies can improve their financial performance by monetizing patents and other intellectual property. The goal is to increase the assets and revenues that derive from technology and innovation, while decreasing liabilities and expenses. A good beginning is to prepare an IP financial report, adapted from conventional financial statements … [which] managers can use to track return on IP investments and to improve performance over time. They can find practical strategies for increasing assets and income and reducing liability and costs by placing a value on each asset.” (From White Paper: Monetizing Intellectual Property To Improve Financial Performance by Venable LLP) 

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