Intellectual Property

About Intellectual Property

Intellectual property, known as IP for short, refers to creations of the mind, such as inventions; literary and artistic works, designs, as well as symbols, names and images used in the commercial world.

IP is protected in law by the creation of patents, copyright & trademarks which enable both individuals and companies to earn recognition and/or financial benefit from what they have invented or created.

By striking the correct balance between the interests of innovators and the wider public interest, the intellectual property system aims to build and maintain an environment in which both creativity and innovation can flourish rewarding those who have invested in the creation of a new work, idea or product.

Types of intellectual property: 

There are five main areas of Intellectual Property that lawyers undertake work in.

Copyright

Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture and films, to computer programs, databases, advertisements, maps and technical drawings.

Patents

A patent is an exclusive right granted for an invention. Generally speaking, a patent provides the patent owner with the right to decide how, or whether,  their invention can be used by others. In exchange for this right, the patent owner makes technical information about the invention publicly available in the published patent document.

Trademark

A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks date back in history when artisans such as silversmiths used to put their signature or “mark” on their products.

Trade Secrets 

Trade Secrets are business practices, formulas, designs or processes used in a business, designed specifically to provide a competitive advantage to a business. These trade secrets would not be otherwise known to an “outsider” of the business. An example of this is the formula for Coca Cola . Trade secrets are protected without registration and appropriate steps should be taken by the owner to maintain confidentiality.

Franchises

A franchise is a license that a company, individual, or party known as the (the franchisee), purchases from the owner/creator allowing them to use that company’s (the franchisor) name, trademark, proprietary knowledge, and processes. A franchisee is usually a small business owner or entrepreneur who operates a store or franchise. The license they have purchased allows the franchisee to sell a product or provide a service under the owning company’s name. In return, the franchisor is paid a start-up fee and ongoing licensing fees by the franchisee.

What Does An Intellectual Property Lawyer Do?

Lawyers with an intellectual property practice usually counsel, protect and enforce the IP of their clients.

In trademark law, the lawyer will conduct searches on trademarks proposed by the client and counsel him/her with respect to its availability.

In cases where a client has already invested time, energy, and money, and if prior use in a similar industry is found, the discussions might include modifying or even abandoning the client’s mark.

In the case of patent counseling, the lawyer will have a technical background in a particular field in order to best understand the client’s patent and to assess its validity or likelihood of infringement.

For a trademark or patent, the process involves preparing and filing an application with the United States Patent and Trademark Office (USPTO) and responding to actions issues by it until the trademark is registered or patent issued.

Protection of intellectual property involves registering a trademark, patent or copyright to obtain the greatest rights available for the client’s asset. Therefore, client counseling revolves around how best to protect intellectual property.

The enforcement involves protecting the owner of the intellectual property against infringing uses by other parties. This can lead to litigation in federal court.

Other components of a lawyer’s IP practice include licensing, due diligence in connection with mergers or acquisitions, and developing strategies for international and domestic intellectual property protection.

Intellectual property law frequently has both domestic and international considerations.

The Law of Modern Intellectual Property Rights 

As a result of the human intellect, IP is a product that can be utilized simultaneously by multiple people without diminishing its availability for others to use. Thus, similarly to the law of actual property, the law of intellectual property operates as a bundle of rights conferred upon the registered owner of the property. 

On the other hand, this law is separate and distinct from the law of tangible property. Where the right of exclusive possession is at the core of the bundle of rights protecting real and personal property, land and chattels, the same cannot be said of intellectual property.  The law of IP is commonly understood as providing an incentive to authors and inventors to produce works for the benefit of the public by regulating the use of such works in order to ensure creators are compensated for their efforts.

The US Congress derives its power to regulate patents and copyrights from the “intellectual property clause” of the Constitution. See U.S. Constitution, Article I, Section 8. Also, its power to regulate trademarks is constitutionally grounded in the Commerce Clause. 

Although patents are exclusively governed by federal law, trademarks may also be regulated by State law. 

Copyrights are exclusively regulated by federal law and must be registered with the U.S. Copyright Office to be enforceable. 

Trade secrets are primarily regulated at the State level, and are traditionally subject to the laws of unfair competition.