What is Intellectual Property?

Intellectual Property Law
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Most people think that patents, trademarks and copyrights are intellectual property, but these are not intellectual property. Intellectual property is a form of property, but it is something that you cannot really see or touch because it is intangible property. Tangible property, like a house or a car, is something that you can touch and see, but intellectual property is the ideas and knowledge that bring value to a company, not the patent rights, trademark rights or copyright rights.

Examples of Intellectual Property

A car is property, not the title to the car. A home is property, not the deed to the home. While having the title to a car and the deed to a home are very important, the valuable property is what we use, not the rights that allow us exclusive use of our property. The same is true with intellectual property. For intellectual property, the valuable property includes inventions and innovations which are protected by patent rights. The inventions make things possible that were not possible before. The invention may make something easier, or cheaper, or more efficient, and the knowledge of how to make and use those inventions is the valuable property. The intellectual property in a business may include brands, logos and slogans protected by trademark rights. The brand is the intellectual property because it builds valuable good will for the company and helps people know how to identify that good will in new products and services. Another type of intellectual property in a business is called “creative works” which include creative ideas in books, songs, movies, sculptures, paintings, plays, and are protected by  copyright rights. The creative work is the intellectual property because it inspires, entertains, or informs.

There are four basic ways to protect intellectual property, and some intellectual property can be protected in more than one way. The four ways to protect intellectual property are:

  • Patents
  • Trademarks
  • Copyrights
  • Trade secrets

We will provide an example of assets in a business, what type of intellectual property may be part of the asset, and how the intellectual property can be protected.

The invention:

Lets imagine that your business has invented a robotic arm to automatically plug in an electric car whenever it is in a garage parking spot. If your company has already made a prototype, and set up manufacturing of the robotic arm, then an intellectual property asset is in the knowledge of how to manufacture the robotic arm.

What if your Intellectual Property included trade secrets?

If your company has kept the information regarding the invention and the manufacturing process as confidential information, and has proper written agreements with employees, contractors and vendors, then your intellectual property would include trade secrets. Trade secrets are enforceable as intellectual property through the courts, but you must show the court that the information was protected in a reasonable manner, and that the information has value because it is secret.  There is no government registration for a trade secret. But we recommend having an internal “inventory” of your trade secrets and a strategy to properly protect them.

If your company has applied for a patent application on the robotic arm and granted a patent, then your company’s intellectual property may also be protected by patent rights.  In this example, the patent rights might cover parts of the invention that are new, and those parts of the invention that can be easily reverse engineered once the robotic arm is sold to customers. Trade secret rights might continue to protect methods of manufacturing including the factory layout, procedures for manufacturing, internal technical drawings, CAD drawing, material specifications and other manufacturing information that is not included in the patent application.

How are Intellectual Property assets protected?

If your company has software, pictures, drawings, manuals, website content, video content, advertisements and other creative material regarding the robotic arm, then these creative works can be protected with copyright rights. If the invention includes a mobile application or app, then the app could be an intellectual property asset that is protected by copyright rights. Source code for software is often protected by copyright rights as well as trade secret rights. You can file for a copyright registration on material that your company keeps as a trade secret.  Combining copyright and trade secret rights can be an excellent strategy for protecting intellectual property because if someone steals the intellectual property you have the benefits of copyright law and trade secret law to stop them from using and profiting from your intellectual property. Creative works can be protected by copyright without any government filing, but the copyright registration greatly enhances your ability to enforce the copyright rights of your intellectual property.

Can I protect my brand before it’s a brand?

If you create a brand called “Robo-PLUG” for your robotic arm, this brand will be an intellectual property asset. Before you use the brand, the asset can be protected as a trade secret. But trademark law only can be used to enforce your intellectual property rights in the trademark after you start using the brand. This is because the value in a brand is tied to the “goodwill” associated with the trademark. Goodwill only exists in the minds of people who have seen your advertising or purchased your product and now have an expectation of the level of quality and service associate with your brand. Trademark law, like copyright law, allows you to enforce your rights in a brand without filing a federal trademark application. As with copyright law, trademark law provides much greater enforcement rights to brands, logos, slogans and other intellectual property protectable by trademark rights when a trademark is registered by the United States Patent and Trademark Office.  The actual intellectual property asset in a trademark is the goodwill associated with the trademark.

Although filing to protect intellectual property can help a company, the filings will usually be inadequate without a strategy based on the value in the intellectual property. At Inspired Idea Solutions Law Firm we first focus on your goals and your current assets in intellectual property. We help you with a strategy to protect your current intellectual property. We also guide you on how to create additional intellectual property to enhance the value of your business. Contact our firm if you want to enhance the value of your company with an intellectual property strategy.

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