Table of ContentsToggle AllIntroductionIntroductionWhat Are Intellectual Property Rights?What Are Intellectual Property Rights?2 Types of Intellectual Property RightsPatentsPatentsFacts About Innovation and PatentsWhat is the Difference Between Intellectual Property (IP) Law and Patent Law?The Rights Granted By A PatentWhat Kind of Inventions Can Be Patented?1. The invention must be new2. The invention must be non-obvious3. The invention must be useful4. The invention must be statutory, or subject matter eligibleWhen Should A Patent Be Obtained?Can Ideas Be Patented or Protected?Remedies for Patent InfringementWhy Intellectual Property is Relevant To Your BusinessWhy Intellectual Property is Relevant To Your BusinessWhat is Intellectual Property for a Business?1. Trademarks2. Patents3. Trade Secrets4. CopyrightsWhat You Should Be Doing To Protect Your Intellectual Property1. File as soon as possible for products and trademarks.2. Think carefully before filing for internal products and technology. 3. Craft strong NDAs and control access.4. Choose litigation only when it is in your interest and only as a last resort.How to Use Intellectual Property As A Business Asset1. Licensing2. Merchandising3. Mergers and joint venturesTrademarksTrademarksWhat is a Trademark?Trademark BasicsHow To Obtain A TrademarkThe Rights of a Trademark OwnerRemedies for Trademark InfringementTrademark Lawyer Near MeThe Role of Artificial Intelligence in Intellectual PropertyThe Role of Artificial Intelligence in Intellectual PropertyArtificial Intelligence Merges Into Intellectual PropertyArtificial Intelligence as an Engine of New Intellectual PropertiesThe Role of Artificial Intelligence in IP ManagementLingering Questions Over AI Ownership and LiabilityUnderstanding The Different Forms of Intellectual PropertyUnderstanding The Different Forms of Intellectual Property4 Types of Intellectual Property LawPatentsTrademarksCopyrightsTrade SecretUtility patentDesign patentPlant patentTrademarkCopyrightTrade secretIs IP Law Your Friend or Foe?Choosing Between Trade Secrets vs. PatentsWhat is a Trade Secret?Trade Secret AdvantagesTrade Secret DisadvantagesMaking the Right Business ChoiceThe Complete Guide to Intellectual Property Intellectual Property is often a company’s single most valuable asset. And yet Intellectual Property is difficult to value, frequently under-exploited, and widely misunderstood. Intellectual Property accounts for an estimated $6,600,000,000 (yes, that’s trillion) of the GDP in the United States alone. Intellectual Property covers trademarks, trade secrets, copyrights, designs, domain names, and patents. It’s not surprising, most companies carefully guard their ideas but challenge the intellectual property of other companies. Damages arising from infringements have fostered a sizeable claims industry. However, as you will see, intellectual property is complicated, and the legal, business and financial concerns are rigorous to navigate. Court decisions and interpretation of IP laws can be unpredictable, and can completely change the fortunes of companies that depend on their intellectual property. This complete guide to intellectual property will help business owners, entrepreneurs, investors, and organizations and companies to understand the nature and scope of intellectual property issues and maximize the value of this critical intangible asset. We have made it easy. Below you will find the content for intellectual property divided into small chapters based on specific topics. Just click on the section you want to see, and you will be directed to that particular part on the page. Are you ready to get started? 1Section 1What Are Intellectual Property Rights? The concept of ownership is the bedrock upon which modern society is built. Its roots go back many millennia to the earliest human societies. Aristotle, for example, saw private ownership of property as the only way to allow people to reap the rewards of their own labor. Ownership undergirds everything in our current capitalist socio-economic society, including the concepts of money, trade, debt, theft, and private versus public property. Ownership as a legal concept merely refers to the state or fact of exclusive control over physical objects such as land and real estate, or crucially for our purposes, ideas and innovations. Ownership conveys certain rights to the owner. Primarily, ownership gives owners exclusive rights to benefit from their property and to use it as they see fit. While the concept of ownership, property, and rights to utilize property is somewhat straightforward, ownership of ideas and the rights involved are less tangible and therefore much more complicated. That’s why at Phillips Kaiser we have created The Complete Guide to Intellectual Property. We hope this in-depth look into intellectual property, including what intellectual property consists of, examples of intellectual property, and how to protect and profit from your valuable ideas, will help guide entrepreneurs and business owners seeking to capitalize on their own innovative ideas. What Are Intellectual Property Rights?In the world of Intellectual Property (IP) law, intellectual property is a legal entitlement. What this means is that ownership of intellectual property gives the owner exclusive rights to profit from the intellectual property they have created. According to the World Trade Organization, Intellectual Property is a creation of the human mind. However, it is usually attached to some expressed form of an idea. For example, the Coca-Cola product as it is conceived and formulated is a piece of protected intellectual property. However, the underlying concept behind Coca-Cola, the idea of a sweet, crisp, carbonated, refreshing, and satisfying beverage consumed for enjoyment does not fall under the purview of Intellectual Property law and such an idea cannot be owned. Intellectual Property Rights (IPRS) refers to the rights conferred to the owner of intellectual property. These rights include: Monopoly power over their intellectual property The exclusive right and prerogative to use, profit, and benefit from intellectual property The exclusive right to prevent others from using such intellectual property The exclusive right to permit others to use or benefit from their intellectual property 2 Types of Intellectual Property Rights Intellectual property rights can be legally conveyed through a variety of means including copyrights, patents, trademarks, industrial design rights, and trade secrets. These form the basis of intellectual property law and are designed to encompass and protect the two types of intellectual property rights: industrial property rights and copyright. 1. Industrial Property RightsIndustrial Property Rights refers to the exclusive rights given to owners of so-called industrial property which includes inventions (patents), trademarks, industrial designs and models, and protected designations of origin. Examples of industrial property include new inventions, a corporate logo, an architectural model, and a seal authenticating genuine Champagne from the French region of Champagne, to name a few examples. 2. CopyrightWhat these two types of intellectual property rights have in common is that they refer to certain exclusive rights afforded the owners of intellectual property. 2Section 2Patents “A country without a patent office and good patent laws is just a crab and can’t travel any way but sideways and backwards.” Patents and the laws about patents, also known collectively as “patent law,” have played a critical role in driving innovation since the 1700s. Many consider patent law indispensable for the continued forward progress of modern society. A patent itself is simply a form of intellectual property that gives the patent owner a legal monopoly over the making, selling, and use of their creation. Before the development and enforcement of patent laws, individuals and businesses might not be incentivized to disclose inventions or take risks on new innovations. Why bother expending enormous effort developing a new technological breakthrough, cutting edge product, process, or service if your competition can simply appropriate your hard-won competitive advantage for themselves? Patent laws give innovators a guaranteed financial monopoly over their inventions or innovations. In theory, this encourages innovation, growth, and forward progress, which benefits society at large. Facts About Innovation and Patents According to the Brooking Institution, over 25% of so-called “high quality” patents in the United States are granted to immigrants. When accounting for spillover effects, every percentage point increase in the number of college-educated immigrants to the United States increases patents per capita by 9-18 percent. The United States grants over 120,000 patents per year. The United States only ranks 9th in patents per capita. China alone accounts for 20 percent of worldwide R&D spending but produces a lower proportion of high-quality patents compared to the United States. The U.S. accounts for 30 percent of worldwide R&D spending. Two-thirds of U.S. patents fall into three broad sectors: biopharmaceuticals, software, and technology hardware. In comparison, other parts of the world, such as the European Union (EU) have a higher proportion of patents in the automotive sector.What is the Difference Between Intellectual Property (IP) Law and Patent Law?Patent law is a practice area within the larger umbrella of Intellectual Property (IP) law. IP Law includes within its patent law, copyright law, and trademark law. While this may be confusing, an easy way to distinguish patents from trademarks and copyrights is that patents are considered “hard IP” while trademarks and copyrights are often termed “soft IP.” In other words, patents generally apply to tangible products and processes, whereas trademarks and copyrights apply to intangible ideas and identities. The Rights Granted By A PatentPatents give their owners a set of exclusive, but expiring, rights over the making, selling, using, and importing of their invention. More specifically, patents allow their owners to exclude others from making, selling, using, and importing their invention. In effect, patents give their owners a monopoly over their inventions. A patent guarantees the owner’s right to exclude others from: Making their invention Selling their invention Using their invention Importing their invention Patent law varies from country to country. Some nations, such as the United States and Canada, for example, have robust patent systems in place with a history of reliable enforcement. Other countries, such as China, have less developed patent law and differing patent procedures. Still, others have no patent system in place at all. In the United States, a patentable invention must meet the following four broad criteria: What Kind of Inventions Can Be Patented? 1. The invention must be newThe newness or novelty component of the general patentability test simply states that there must not have been a prior public discourse about the invention before the application for patent. In other words, if other people have already been talking about something, it is not new or novel. 2. The invention must be non-obviousThis is a tricky statement. The rule states that an invention cannot have been obvious “to a person having ordinary skill in the art to which the claimed invention pertains.” For example, you cannot patent a bicycle that also has a basket for holding things on the front. When a person of “ordinary skill in the art” looks at a bicycle, then looks at the basket, the first thing they would think to do is put the basket on the bicycle. Thus, it is an obvious invention and cannot be patented. IPWatchDog has a very straightforward and simple way to understand this patentability test: You have invented A+B. A is known as the prior art. B is known as the prior art. Upon looking at A and then looking at B, would someone of skill in the art consider A+B to be already known? If the answer is yes, then A+B is obvious. If the answer is no, then A+B is not obvious. 3. The invention must be usefulThis statement is perhaps the most straightforward. It only requires that an invention have a “useful” purpose. There must often be a practical or specific utility that the invention in question provides to society. 4. The invention must be statutory, or subject matter eligibleSection 101 of the Patent Act identifies four broad categories of inventions that can be patented: processes, machines, articles of manufacture, and compositions of matter. While this may seem quite broad, there are many instances in which an invention might fail this component of the patent test. Software, for example, is an important example of something that would fall outside the purview of the subject matter eligibility rule. Nonfunctional descriptive material, such as data, also does not fall into any of the four broad statutory categories and thus cannot be patented. You could not as a software developer, for example, claim a patent on your new app (not tied to a process or physical machine) or the personal user data your app collects. While this four-part patentability test may seem quite simple and straightforward, in reality, it is quite complicated. Many if not most individuals or companies who apply for patents do so with the help of a patent lawyer well-versed in patent and intellectual property law. When Should A Patent Be Obtained? Generally, companies and individuals only try to obtain a patent for their inventions when they deem their invention to be worth patenting. This can occur at any point in the life cycle of the development of an invention. Some aspiring patent owners submit provisional patent applications early on, while others try to develop their ideas further before attempting to obtain a patent. There is no definitive answer for whether or not to get a patent. Many companies and individuals start their patent journey with a patent search. The purpose of this is to see if a patent for your invention may already exist. A patent search is also a great way to scope out the patent landscape surrounding your invention. While a patent of your invention may not exist at the moment, for example, a patent search may reveal another patent that may prevent you from fully-realizing your invention even if it does get patented. Or, you may find that a patent of a very similar invention may already exist, in which case you may want to take some time to differentiate your invention a little more clearly. As a first step in the process of obtaining a patent, you should submit a provisional application for patent. Because the U.S. Patent Office does not check provisional patents, some seeking to obtain a patent might skip the patent search, or submit a provisional patent before their search is complete. This ensures that no one beats them to the punch of obtaining a patent on their invention. Can Ideas Be Patented or Protected?No, you cannot patent an idea. Ideas do not fulfill the basic requirements of a patent. Ideas are not processes, machines, articles of manufacture, and compositions of matter. Thus, an idea would fail the statutory, or subject matter eligibility, test and would not be patentable. While every invention does, at some point, start as a mere idea in someone’s head, not every idea is a patentable invention. Remedies for Patent InfringementPatent infringement is not a criminal offense, and thus, there are no criminal penalties for an infringing party. However, civil remedies can be pursued either through the courts or through arbitration. In some cases, non-binding mediation may also work. Court action involves lawyers and litigation and also allows for legal appeals. This is typically the slowest and most expensive way to determine remedies for infringement. In contrast, arbitration is often faster, less costly, and, more importantly, private. Unlike litigation or arbitration, mediation is often legally non-binding unless the parties agree in writing otherwise. It is merely an opportunity for the various involved parties to come to an agreement about how to remedy a patent infringement without resorting to costly litigation or arbitration. Mediation is typically a good first step. However, should mediation fail, or if one party does not uphold the mediator’s non-binding decision, litigation and arbitration may be the only reasonable courses of action. In both cases, whether through court action or through the binding decision of an arbitrator, there are two general remedies for patent infringement: monetary compensation obtained through a judgment, or an injunction preventing the infringing party from infringing further. In many cases, both remedies will be used. An injunction may be issued to prevent further making, selling, using, or importing of a patented invention along with a judgment for monetary damages. Monetary damages as a result of patent infringement are commonly measured in three ways: lost profits, established royalties, and reasonable royalties. Lost profits refer to the money the patent owner lost as a result of the offending party’s infringement on the patent. It is important to understand that this does entitle the patent owner’s to the offending party’s profits. Instead, the patent holder must show proof of the amount lost as a result of the infringement. If the patent holder cannot show proof, the monetary damages can be measured through established royalties or reasonable royalties. If the owner already has a set royalty rate in place for their invention, the established rate can be used to determine monetary damages. If not, a reasonable price can be used to establish monetary damages. 3Section 3Why Intellectual Property is Relevant To Your BusinessLarge and enterprise businesses cannot ignore the importance of protecting and enforcing intellectual property (IP). While defending IP assets can involve significant investments into documentation, registration, and legal representation, these costs can be far outweighed by the value these assets provide. This chapter of our Complete Guide to Intellectual Property will demonstrate the relevance of intellectual property to the operations of large businesses. The following sections will cover the meaning and most relevant types of intellectual property, the steps you must take to protect it, and how to leverage it as an asset. What is Intellectual Property for a Business?In the world of Intellectual Property (IP) law, intellectual property is a legal entitlement. What this means is that ownership of intellectual property gives the owner exclusive rights to profit from the intellectual property they have created. According to the World Trade Organization, Intellectual Property is a creation of the human mind. However, it is usually attached to some expressed form of an idea. For example, the Coca-Cola product as it is conceived and formulated is a piece of protected intellectual property. However, the underlying concept behind Coca-Cola, the idea of a sweet, crisp, carbonated, refreshing, and satisfying beverage consumed for enjoyment does not fall under the purview of Intellectual Property law and such an idea cannot be owned. Intellectual Property Rights (IPRS) refers to the rights conferred to the owner of intellectual property. These rights include: 4 Types of Intellectual Property for Business 1. TRADEMARKSTrademarks are used to protect the identity of a brand. Anything that helps consumers to identify the source or creator of a product may be considered part of the trademark. The most basic form of a trademark is a wordmark. Wordmarks are text-only representations of the name of the company or product. For example, consider the way that “Coca Cola” is displayed on cans. The word itself, along with the distinct presentation of the letters and the red-and-white color scheme is all part of the trademark. The trademark doesn’t prevent other companies from using cola (a general term) cursive, or red-and-white colors. However, any combination of those elements on a similar product could be considered an impersonation and challenged as an infringement under trademark law. A company found guilty of violating a trademark can be forced to pay penalties and damages in the form of lost profit, and to change any elements that violate the trademark owned by another business at their own expense. 2. PATENTSPatents are used to protect the function and design of an invention or product. The difference between function and design is important because those represent the two types of patents that exist. Utility Patent The utility patent protects your rights to what the product accomplishes. For example, if your company invents a new or notably improved way of achieving something, filing a utility patent will prohibit other companies from making, using, or selling the invention without licensing it through you. Design Patent The design patent protects your rights to the appearance or ornamental design of a product. For example, if you have rights to a product (or if it is in the public domain), you can create a more elegant or useful presentation of the product, and protect your rights to that specific look. 3. TRADE SECRETSTrade secrets are considered to be any information, processes, or techniques that are used to provide economic benefit to a business and not known to the public. Trade secrets, because of their nature, do not need to be filed and registered to be considered your property. Even without registration, you are protected from actions that result in the theft of your trade secrets. For example, unlawful spying or hacking into your processes by a competitor, or illegal selling of information by your former employees may be considered trade theft misappropriation. 4. COPYRIGHTSCopyrights protect your legal ownership of creative works such as books, screenplays, music, computer software, and even architectural designs. It prevents others from copying, modifying, or distributing the copyrighted material. This type of property is most important to companies that deal with the production or distribution of media, such as record labels and movie studios. However, any business that produces proprietary software has an interest in making sure that the completed product is protected under copyright law. What You Should Be Doing To Protect Your Intellectual Property Protecting IP can be a difficult balancing act. One of the common misconceptions business leadership has about intellectual property is that registration is always the best option, and litigation should still be pursued at all times. Even for the most successful businesses, it is not always prudent to use to litigate immediately for IP infringement as many IP disputes can be settled before pursuing expensive litigation by settlement agreements in the form of licensing arrangements that may turn a “foe” into a business partner. 1. File as soon as possible for products and trademarks.For products that are going to be publically released, it is crucial that your business be the ‘first to file.’ This is the rule that the US patent office follows when determining ownership for two competing claims. If it’s an option, make sure that these relevant IP filings are filed promptly. 2. Think carefully before filing for internal products and technology. Patents and trademarks are an essential means to protect your rights, but they also provide your competitors with a way to reverse-engineer some of your most valuable assets. In some cases, it’s more effective to refuse to file or register specific technology until you’ve replaced it. When you’re no longer dependent on it, you can then file so that you can license it out for fees. 3. Craft strong NDAs and control access.Litigating the sharing of trade secrets can be expensive and complicated. You can strengthen your position in advance by requiring strong non-disclosure agreements for employees who are interacting with the most sensitive parts of your operations and for third parties such as suppliers and customers. Beyond that, it’s important to make sure that only employees who “need to know” have a full understanding of how your most sensitive operations work. 4. Choose litigation only when it is in your interest and only as a last resort.Do not engage in litigation without a legal strategy that works in your best interests and only as a last resort as often IP disputes can be resolved through negotiated settlements. Copyright cases can take years, especially when you are suing another large business that has the resources for a sustained legal battle. Using the law for competitive advantage means focusing on cases where you can expect a quick resolution, or have the documentation necessary to force a high-value settlement or resolution. How to Use Intellectual Property As A Business Asset Intellectual property is an incredibly valuable asset that has many uses beyond guaranteeing your exclusive use. All of the following can be effective strategies to leverage your intellectual property as an asset. 1. LicensingIf you have a limited ability to respond to market demand, it can be profitable to license your technologies out to other companies for lucrative royalty fees. The market for licensed IP can potentially be global. 2. MerchandisingA compelling property with a copyright can be spread across many other markets. Fictitious characters, such as those created for marketing campaigns, can resonate with customers so much that they’d be willing to pay for the character on clothing or other products. The same can be true of designs (like the schematics for a sports car), logos, or other intellectual property. 3. Mergers and joint venturesIntellectual property can be a powerful asset in all types of negotiations. A portfolio of IP can massively increase the value of a company, or make it an enticing partner for joint ventures. The respective intellectual property portfolios of two companies can play a role in determining how much market power a merger will give them. 4Section 4How Coca Cola Impacted Trademark LawBy creating the second-most recognized trademark in the world, the Coca Cola Company has seen it all. You can learn a lot about trademark law from them. Ranked only behind Nike’s “Swoosh,” the Coca Cola Company defends its trademarks daily. This comes as no surprise, considering estimates value the trademark at over $70,000,000,000 (Billion), which makes Coca Cola the company to emulate when it comes to protecting its trademark. Coca-Cola, more than anyone, has a long and storied history with influencing trademark law. Coca Cola & Trademark LawKeeping Your Brand Secure It is common knowledge that Coca Cola trademarked the logo and words for its product in 1893. They also trademarked the font, along with a few slogans like “Delicious and Refreshing.” By that time, trademarks became fairly common for companies who had proprietary goods or services marketed and sold nationally. As a result of Coca Cola’s early success, many people wanted to copy the Coca Cola brand. As sales grew, the more problematic imitations became. What is impressive is how Coca Cola has grown so large with a relatively small number of trademarks. Coca Cola even obtained a trademark for the word “Coke” in 1945 as customers shortened the product name and used this slang term for the product. This is an example of young customers basically renaming a product, causing the company to adjust its trademark strategy. Coca Cola caught on and quickly filed for a trademark for the shortened slang name “Coke” before anyone else could claim it. Trademark Attorney Houston If you are expanding a brand name into new markets, or need to protect your existing brand, you need a trademark attorney. The good news is that you don’t have to hire a lawyer in Washington, D.C. or New York to get a trademark. You can hire a trademark attorney in Houston. A business attorney can do many things for your brand name that you can’t do yourself. For example, they can prepare your trademark applications and see them through to granting of the mark. More importantly, they can monitor your trademark. What this means is that they can look for unauthorized use of your trademarks and pursue a court order stopping that us, known as injunctive relief, on your behalf. As you manage your company brands, you will notice the more successful goods and services will have more imitators. Even older products can run into this kind of trademark infringement. The following are a few examples from the Coca Cola Company to understand trademark law a bit more. The Coca Cola Bottle & Trademark Law The Coca Cola Company patented the shape of its bottle in 1915. Then in 1977, the United States Patent and Trademark Office (USPTO) granted a trademark for the bottles after the patent had expired. This was history being made in trademark law and set a precedent for the packaging of goods. In 2002, the Office for Harmonization in the Internal Market granted Coca Cola a Community trademark. This is a trademark from the European Union that protects goods and services overseas. It is precisely the kind of brand protection a business needs as it moves into international markets. Ongoing: Coca Cola & Trademark Law The trademark battle continues, even internationally for the Coca Cola brand. Recently in Norway, the Coca Cola Company won a judgment against an Oslo manufacturer over the Sprite trademark. A small beverage producer in Oslo, O. Mathisen was making a similar lemon-flavored soft drink named Jallasprite. Coca Cola was successful in obtaining injunctive relief on the basis of the likelihood of confusion between the names. It didn’t end there though. It was then O. Mathisen came back with a new brand name, JallaXXXXXX, which was still a lemon-flavored beverage. Coca Cola was back in court, this time not so friendly. Mathisen claimed censorship while Coca Cola claimed this as the second trademark infringement with O. Mathisen. An Oslo District Court again ruled in favor of the Coca Cola Company. The court ruled that the brand JallaXXXXXX was also an infringement because it was implied that the XXXXXX still stood for Sprite. Jallasprite was already well-known in Norway and the beverage manufacturer had to pay damages to Coca Cola for infringement of the Sprite trademark. Photos Courtesy: r/law reddit Coca Cola’s Brand Name Success Coca Cola has been successful because of the combination of brand name innovation and brand name protection. Their successful navigation of trademark law comes from working closely with trademark lawyers who understand their brands. The ongoing protection of the brand names and trademarks of Coca Cola is an excellent example of why it is essential to have a skilled business attorney representing your brand as well. An attorney who understands and knows your brand can help you secure, protect, and grow your brands. As the Coca Cola Company has modeled, this is key to maintaining the integrity of successful brands. This is the heart of consumer confidence in your company and the key to business success and growth. 5Section 5TrademarksUnderstanding trademark law is essential if you want to protect your brand name, especially on the internet. When you post your company’s intellectual property online, you assume a certain risk. Although not everything needs a registered trademark, knowing what to protect will safeguard your brand name online and preserve its integrity. What is a Trademark? A trademark includes any combined words, letters, numbers, and designs that identify the source of goods or services. This is usually the logos, brand names, and slogans your company owns. This does not include inventions (patents) or copyrights (sales materials). A trademark is more like the “Swoosh” on a Nike tennis shoe. You should protect a logo like this with a federal trademark registration before you post it online. If it’s not protected with a registered trademark, a risk is that people anywhere in the world can claim it as their own and start using it. You might not ever find out it’s being used by someone else until your logo appears on the same class of goods your company sells but imported from another country. Your defense is to bring a trademark infringement claim. But, these types of international trademark infringement cases are costly and hard to win. Trademark Basics The most basic way of establishing a trademark is simply by being the first to use it. The U.S. Patent and Trademark Office (USPTO) supports this as a common law trademark. However, common law trademark rights only extend to the geographic area where you sell your goods or services. Even if you are a large distributor of goods or services, common law trademark rights are hard to protect. Many companies post the “TM” symbol next to a brand name, thinking this is a remedy for a registered trademark. However, this still only gives you common law trademark rights in your geographic area where you do business. Even if you do business all over North America, your logo can be used somewhere else in the world. It is easy for someone to go online and find a common law trademark they like. If it happens to be your common law trademark and they start using it locally, you have problems. The internet, along with graphic design software, makes using other people’s trademarks in foreign countries reasonably easy. This is especially true if you post your trademark online before using it commercially. If you use specific fonts, words, and graphics to create certain values on your website, you’re approaching trademark territory. This is especially true if you are using the same images on your packaging. While you can copyright a lot of website material, consult a trademark attorney to make sure you know what needs to be protected. Always keep in mind that anybody in the world can access and copy your website without your knowledge. How to Obtain A Trademark Anyone can fill out an application online and pay the filing fees. However, the United States Patent and Trademark Office (USPTO) does not encourage this solo approach to the application process. You must prove to them that the trademark is uniquely yours. That’s the tricky part. The examining attorney from the United States Patent and Trademark Office reviews completed applications based on the research you present. This is research that proves no one else can claim the trademark and that you are the first. Submitting this research through a trademark attorney who knows trademark law will greatly improve your chances of approval as they will advocate to the USPTO on your behalf. There are three places a trademark lawyer can research to make sure your brand name is unique: A trademark lawyer can perform a common law search. For example, let’s say your company has a soft drink named after a famous street in Houston. A Houston trademark lawyer can search public records, business directories, phone directories, and databases online to determine the uniqueness of your soft drink. Another search will be on a state’s patent and trademark registration database. A trademark attorney can help you research the state trademarks anyone might hold for “beverages” in Texas. Your Houston trademark attorney will also research the United States Patent and Trademark database and USPTO Official Gazette before your application is submitted. This is especially important because the USPTO examining attorney will swiftly reject your trademark based on similar findings in the database for your brand. Once you have proven the singularity of your brand name, you can obtain a registered trademark. This approved application, along with the trademark fee, provides you much more protection on the internet. The Rights of a Trademark Owner The first right you have with a federal trademark registration is that you can use the registered trademark symbol. A trademark attorney can represent you in trademark infringement cases, seeking injunctive relief and damages on your behalf. They can also work with the United States Patent and Trademark Office (USPTO) for added support in any litigation. You will also have a better standing in international trademark infringement cases. Remedies for Trademark Infringement Generally speaking, because trademark infringement is a civil case, remedies can vary. You may seek injunctive relief, which can be a cease and desist order issued by the court. This will prevent the infringing party from using your similar mark on their goods and services. If you can prove the infringing brand name has confused the public, you can sue for monetary damages. Trademark Lawyer Near Me Since trademark infringement cases are civil, there is a higher burden of proof to win a case. If you want to protect your brand, you need to find the best trademark lawyer who is experienced and proactive about protecting them. 6Section 6The Role of Artificial Intelligence in Intellectual PropertyArtificial Intelligence (AI) is poised to be one of the most important technologies in the near future. AI has been part of the human imagination for more than a century, but even the foremost science fiction authors of the 1900s couldn’t have imagined the applications that it would have today. The intelligent robots imagined by those authors may be possible. Right now, however, the focus of corporate boards and investors the world over is on AI’s potential for data analytics, its role in managing complex global IP arrangements, and the lingering questions about where the law will fall on questions of ownership and liability resulting from such arrangements. Artificial Intelligence Merges Into Intellectual Property Data collection has become one of the essential parts of every business. The volumes of demographic data collected by social media networks and the sensor data collected by “internet of Things” (IoT) devices have already far outstripped the ability of humans to analyze it all. Many of the insights into the future may have already been collected, and are sitting in the cloud waiting for their significance to be grasped for the first time. As we move into the future, it’s less likely that a human will be the first to understand that data’s value, and increasingly more likely that artificial intelligence will. Insights and analysis—the capture of trends—is where artificial intelligence shines the most right now. The independent data analysis programs that companies create may very well become some of the most important and intellectual properties in the future. For corporate boards, the two most important topics are AI’s potential for the development of new intellectual properties, and on top of that, AI’s potential for managing increasingly complex IP portfolios. Artificial Intelligence as an Engine of New Intellectual Properties AI doesn’t represent just a new minefield of valuable properties, it represents an entirely new frontier. Many of the most successful startups of the last generation, from Facebook to Twitter and Instagram relied on an idea that wasn’t well-understood until it was tested. The next age of AI promises the possibility of reading into exactly what consumers want before the product has even been invented or conceived. Companies that possess massive amounts of proprietary data and control a sufficiently-advanced AI may be able to develop an almost omniscient view of what the market wants. Massive-scale data analysis has the potential of cutting through all of the luck, timing, and inspiration that previous generations relied upon to create profitable ideas. That these insights may now be delivered automatically by artificial intelligence hunting for hidden trends suggests that the entire market may experience a revolution. The Role of Artificial Intelligence in IP Management Analytics isn’t the only role for AI in the future. It may also play a large part in the global administration of intellectual property and trade secrets. Major trends suggest that in the future, most profitable ideas and inventions will not be physical products. Instead, they will be digital innovations, packaged with the processes that enable them to be organized, analyzed, and distributed. It is the intellectual property itself that will be one of the most important markets of the future. If libraries of intellectual property are the most essential property of the future, consider what is faced by a company that is trying to protect a single patent across the globe. It must deal with dozens of languages, patent offices, and regulatory environments. The chance of errors that threaten the exclusivity of the patent is high, even with massive investments made into compliance. AI may be the development that offers the most relief from the increasing complexity of patent protection. Artificial intelligence can be used to verify the accuracy of document fields, track deadlines, and automate renewals on a massive scale. Lingering Questions Over AI Ownership and LiabilityAs much promise as AI offers to the intellectual property arena, courts and legislatures haven’t adequately answered some questions. Some of the most important questions are those that relate to ownership. You will need assistance to provide you with answers to understand the possibilities of using the law for a strategic advantage in the market. For example, who owns innovations that are independently discovered by AI systems and AI tools? Is the inventor entitled to them, or the company that is currently licensing it? The other possibility must also be considered such as – What happens if training data or other innovations created by AI leads to injury? Without sufficient answers to these questions, the future may not offer anything as reliably other than endless rounds of patent litigation. 7Section 7Understanding The Different Forms of Intellectual PropertyThe First Step to Protecting Your Intangible Assets You don’t have to be a scientist in a cutting edge laboratory, a prominent inventor, or a visionary entrepreneur to own intellectual property (IP). Intellectual property can be as straightforward as a new way of doing something or something a business does to set itself apart from its competitors. Intellectual property law has to do with the designation and protection of precious intellectual property, such as a company’s unique patents, trademarks, copyrights, and trade secrets. A business’s unique IP is what can often provide a competitive advantage in the marketplace. However, rights to IP are more difficult to protect compared to physical assets. You can’t simply always lock them up in an impenetrable vault. Unlike physical property, you also can’t build a physical fence or wall around your IP. That’s why it’s important for business leaders, entrepreneurs, and executives to know about the different types of intellectual property and exactly what is considered to be protected under intellectual property law. The Complex World of Intellectual Property Law The wide, complex body of federal and state laws and common law protecting creative property and fostering innovation are collectively known as intellectual property law (IP law). IP law includes patents, trademarks, copyright, and trade secret laws, each of which has its own set of rules. The following is a brief overview of the four different types of intellectual property. 1. PatentsPatents protect inventions. Generally, patents last for 15 to 20 years depending on the invention in question and can be extended. However, to receive patent protection, the inventor must apply for a patent. Compared to other forms of IP protection, patents are the most costly. 2. TrademarksTrademarks include words, phrases, symbols, or designs that distinguish one business from another. Unlike a patent that eventually expires, a trademark lasts forever as long as it remains in use. Trademarks do not require an application, although optional registration is recommended. Obtaining a trademark is less expensive than a patent. 3. CopyrightsCopyrights cover physical works and tangible expressions. They cover everything from art to music to written words. Generally, copyright protections come into play the moment a work is created and will last as long as the original creator is alive plus an additional 70 years after the original creator’s death. Like trademarks, registration is not expensive and is optional, but highly encouraged. 4. Trade SecretsTrade secrets are perhaps the least understood type of intellectual property protection by the general public. Trade secrets encompass any information that will give an organization a competitive advantage. Coca-cola’s unique formula is a great example of a trade secret. Unlike other forms of IP protection, however, trade secrets are not protected by law in the same manner that requires a filing or registration. Instead, it is largely up to the organization holding the trade secret to maintain secrecy through reasonable means. For a simplified summary, refer to the following table distinguishing the different types of intellectual property. Patent, Trademark, Copyright, & Trade Secret: An In-Depth Look Patent Pursuant to the United States Patent and Trademark Office (USPTO), a patent for an invention “is the grant of a property right to the inventor”. A property right confers to the owner of said rights the exclusive right to exclude others from making or selling their invention(s) for a limited amount of time. In exchange for these exclusive rights, information about the invention must be disclosed to the public. Patents are designed to not only protect a creator’s right to profit from their invention but to also disseminate new and important information regarding the invention amongst the public. This benefits society by accelerating the diffusion of knowledge and the pace of technological advancement overall. If you’re afraid that someone will steal or copy your invention, you may never develop your invention or disclose it to the wider public. There are three types of patents: Utility patentA utility patent protects new and useful processes, machines, manufacturing methods, or compositions of matter (e.g., a new substance) as well as improvements to existing processes. These types of patents offer protection 20 years from the date of filing. For example, Apple filed a utility patent for its automated process of pairing wireless accessories with host devices without requiring the entering of pin codes. Design patentA design patent protects new, original, and ornamental designs. These types of patents offer protection 15 years from the date of issuance. The iconic design for Apple’s original iPhone, for example, is a great illustration of a design patent in action. The iPhone’s design totally transformed the look and function of smartphone devices, earning it a design patent and forcing other market competitors to adapt and move forward. Plant patentPlant patents protect the invention or discovery of new varieties of plants. While this might seem like a strange subcategory of patents, it is important to note that plants and agriculture as a whole was and still is a very important part of the American economy. The first plant patents were issued in 1931. Since that time, plant patents have been issued for everything from thornless roses to ultra-productive food crops. It should be noted that while plant patents apply specifically to plants, the elements of the plants themselves as well as manmade varieties of plants can be protected with utility patents. Unlike the copyright and trademark registration process, the patent application process can be expensive and time-consuming. Patent protection does not automatically apply the moment the invention is created; the inventor(s) must file an application with the USPTO to secure exclusive rights. Once granted, patents can then be assigned or sold to a corporate employer or other third parties. Trademark A trademark is essentially an organization’s brand. It can be a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. Examples of trademarks include logos, slogans, brand names, packaging, and sounds. A trademark serves to help customers quickly identify a business when differentiating between otherwise similar products. Customers would never mistake a “swoosh” on a pair of tennis shoes to be from a company other than Nike, even if the word “Nike” isn’t explicitly stated on the product. Likewise, any consumer the world over will readily recognize Coca-cola’s unique logo and product packaging. Other examples of trademarks include the MGM lion roar, Tiffany’s blue packaging, and McDonald’s’ slogan “I’m Lovin’ It”. A trademark needs to be protected because it is not merely words or designs. Trademarks are representative of a unique brand. Customers associate certain words and designs with a particular brand, which can be of enormous value to an organization. Without trademark protection safeguarding a brand, competitors can unfairly leverage that goodwill to mislead consumers into purchasing inferior goods or services. Trademark rights are automatically granted upon first use, and owners are entitled to that protection as long as the trademark is in use. However, organizations can register their trademark to ensure the greatest degree of protection. Registration serves as a public notice to potential competitors that the trademark belongs to your organization. If a competitor uses another organization’s trademark without authorization, registration allows the owner of the trademark to bring an infringement suit in federal court, allowing the owner to recover damages, fees, and other remedies. Registration of your business’s trademarks and trade dress is highly recommended. Copyright Copyright is a form of protection for original works of authorship, which includes, but is not limited to, “literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture” that are fixed in a “tangible medium of expression”. While you may have a novel idea for a book in your mind, it cannot be copyright protected until it has been translated into a tangible format such as a book, digital document, or even a napkin. An example of a copyrighted work is the “Happy Birthday Song”, which was actually under copyright protection until it entered the public domain in 2016. Copyright protection automatically applies the moment a unique work is created by the original author in a tangible medium of expression – no registration required. Other times, if the work was created in the context of a work-made-for-hire or employer-employee agreement, the copyright belongs to the employer. In both circumstances, copyright protection gives the owner the exclusive right to reproduce, make derivatives of, distribute copies, perform, or display the original work. Generally, the exclusive right belongs to the owner for the length of the owner’s life plus an additional 70 years. While registration is not necessary, registering the original work is inexpensive to secure and offers substantial advantages. One significant advantage of registration is being able to sue another party for infringement and demand attorney’s fees from infringers. Trade secret The USPTO refers to a trade secret as business ownership of information. That can include a “formula, pattern, compilation, program, device, method, technique or process,” that provides an economic advantage over competitors who do not know the information. A trade secret can only be protected if the holder of the information takes reasonable steps to maintain its secrecy. In other words, it’s not a trade secret if you make the information in question easily accessible or publicly available. Once the secret is out, the information is no longer protected as a trade secret. Even if the holder does everything in its power to maintain its secrecy, protection is lost if another company independently comes up with the same information or can reverse-engineer the supposedly secret information. Trade secret law protects valuable information that may not be eligible for protection under patent, copyright, or trademark law. Well-known examples that come to mind are Coca Cola’s secret formula and Kentucky Fried Chicken’s original recipe. Both are locked in high-tech safes, and the contents are only known to a few key executives. But, trade secrets aren’t restricted to recipes and formulas. They can include customer lists, supply chain processes, marketing plans, and proprietary databases. One controversial example of trade secrets is the price lists that hospitals and insurers keep for medical goods and services. Don’t overlook this form of IP protection. Trade secret protection has increased dramatically with the passage of the Defend Trade Secrets Act of 2016 (DTSA). DTSA gives companies a federal course of action when seeking remedies for the misappropriation (e.g., stealing, disclosing without consent) of trade secrets as long as holders take “reasonable measures” to maintain secrecy. There is no blueprint for what constitutes “reasonable measures.” Businesses will have to weigh the costs and benefits of maintaining trade secrets themselves. Protective measures may include legal protection such as non-disclosure agreements, non-compete agreements, confidentiality agreements, or, in the case of Coca Cola, a physical vault. Is IP Law Your Friend or Foe? Intellectual property law can be your friend if you understand how it works. Or it can become a thorn in your side if you accidentally infringe on another party’s IP. Without understanding the basics, IP law infringement can lead to legal disaster. Furthermore, if your own intellectual rights are not secured properly and in a timely manner, competitors may imitate your products and services without consequences or even prevent you from using your own IP. Your organization can be sued for copyright infringement as well if it inadvertently infringes on the rights of others. Investing early in an IP law strategy is crucial for a business’s success: Securing the appropriate IP rights arms you with a path of recourse if misappropriation or infringement occurs. Having valid IP protection increases the value of your business and/or helps in negotiations with investors or potential buyers IP can be valuable assets that can generate revenue in the form of licensing Start investing in your IP by asking the right questions: What do you want to protect? What type of IP protection is available and applicable? What can I do to secure protection under IP law? 8Section 8Choosing Between Trade Secrets vs. Patents: Making The Right Business ChoiceWhen protecting your valuable intellectual property (IP), the first legal actions you may consider taking include filing for a patent, trademark, or copyright. Patents, trademarks, and copyrights are expressly designed to protect inventors and creators and allows them to profit from their inventions and innovations without fear of copycat competitors. Patents, in particular, are beneficial for protecting novel new products and give inventors or creators the sole right to monopolize the manufacture, use, and sale of their creation for 20 years. Importantly, the patent also gives the inventors or creators legal standing to take anyone to court who dares to reproduce their invention without their express permission. This is known as a patent infringement suit. Given the usefulness and popularity of patents, copyrights, and trademarks, you may be surprised to know that there is a fourth, lesser-known method for protecting valuable intellectual property (IP). Even better yet, this relatively “secret” legal tool can help protect your valuable intellectual property and inventions well beyond the standard 20-year window associated with patents and other forms of IP protection. I am talking here, of course, about so-called trade secrets. What is a trade secret? Trade secrets are defined by the Uniform Trade Secrets Act (“UTSA”) as information, including a formula, pattern, compilation, program, device, method, technique, or process that derives value from their secrecy and inability to be readily discernible. This means that the trade secret must be of some economic value, whether actual or potential, to others if it were disclosed. Great examples of trade secrets include the formula for Coca-cola, pharmaceutical formulations, and certain negotiated agreements between organizations. Businesses that claim a trade secret must also make reasonable efforts to maintain the secrecy of their information. A trade secret is a commonplace tool to use instead of a patent for maintaining control over valuable information and intellectual property in the business world. But what are the advantages of trade secrets over patents that a business needs to be aware of? And, what potential pitfalls of trade secrets do businesses need to avoid? Trade Secret Advantages For nearly the past 90 years, Coca-Cola’s world-famous recipe has been locked away in a vault in Atlanta, Georgia. Likewise, numerous other household names have kept their products and properties secret for many decades, well past the 20-year time limit under patent law. The formula for Superlube’s WD-40, for example, is another prime example of a trade secret protecting a business’s vital interests well beyond the 20-year patent period. The ability to prevent a successful formula or valuable information from falling into the hands of competitors for a very long time is one of the most important advantages of trade secrets. Besides keeping critical information under wraps, trade secrets can potentially give a business a longer runway to build up market share around a novel product or service. Coca-cola’s brand, for example, is considered untouchable as a so-called classic American product deeply associated with the country as a whole. At this point in the company’s development, there are many imitators, even some with products that consumers prefer in blind taste tests. Yet, Coca-cola continues to dominate the cola beverage market worldwide thanks to the strength of their brand and market share, which they built up in no small part thanks to trade secrets. The Pros of Trade Secrets No need for registration or administrative costs associated with registration. No public disclosure. Disclosure of trade secrets would defeat the purpose. No time limit on trade secret protection. As long as a business benefits from and can adequately maintain its trade secrets, its information can remain confidential and proprietary indefinitely. No grace period. Trade secrets come into effect immediately once a business decides to implement trade secret protections. Trade Secret Disadvantages While trade secrets offer many important advantages, they also have some significant drawbacks and weaknesses companies need to be aware of. Before developing patent law and other forms of the legal protection of IP, trade secrets were the only tool businesses had to protect proprietary information and inventions. The purpose of patents was to encourage public disclosure of potentially revolutionary inventions that could benefit society and drive human progress. Imagine, for example, if a company invented a simple and easy way to cure cancer but kept it secret out of fear that their product might be stolen by competitors or requisitioned by the government before they could figure out a way to bring it to market—patents reward innovators with exclusive monopolies guaranteed through the power of the state. Once a patent is issued, the patent holder is guaranteed extensive legal protections and rights. That’s where trade secrets begin to run into problems. Unlike patents, trade secrets do not guarantee an exclusive legal monopoly. A company can only maintain a monopoly as long as it can maintain the secrecy of its product, invention, or process. In the past, this could be accomplished with physical lock and key. However, today much of our intellectual property and innovations are not physical products but rather ideas, methods, and processes. These abstract innovations can be much more difficult to secure. Intellectual Property theft through digital means, such as hacking, is perhaps one of the greatest threats facing companies today. A business relying on trade secrets rather than patents will have much less legal recourse for remedying the loss of their IP or leaking of important business information to competitors and the wider public. Furthermore, trade secrets do NOT protect against reverse engineering at all. Trade secret protections only apply to unlawful breaches, such as outright theft. They do not prevent competitors or other entities from reverse engineering or duplicating a product or process through legitimate means and methods. In other words, a trade secret would not protect Coca-cola from a competitor who takes a Coca-cola product, deconstructs its ingredients, and recreates a competing product with the same ingredients and formulation. Fortunately for Coca-cola, their brand strength and market share are so impregnable that many competitors have tried and failed at this approach. However, if Coca-cola had been invented today, the company might have taken a different approach and applied for a patent instead. Making the Right Business Choice Choosing between a trade secret or a patent is a crucial business decision that could have enormous financial and legal ramifications for many years to come. Some of the key considerations a business owner, CEO, or executive decision-maker should keep in mind are the following: Will the 20-year patent protection period be enough to bring a product to market, build market share, and develop a sustainable business model? Will the invention or idea be easy or difficult for competitors to reverse engineer or arrive at independently? Will the maintenance of the secrecy of a product or invention be financially or practically feasible? Will the organization be able to commit to carefully managing and securing trade secrets? Once the secret is out, there is no going back. Will the invention or idea be licensed or franchised? Once a product or process becomes licensed to others, it can become impossible to secure via trade secrets. Will the invention or idea be widely shared? In today’s so-called knowledge economy, innovations are often widely broadcast and shared with others. This would defeat the purpose of a trade secret. When deciding between registering for a patent or maintaining a trade secret, you will want to carefully consider the advantages and disadvantages of both forms of IP protection. In general, if you have an invention or innovation that cannot be easily reverse-engineered and does not need to be shared or licensed to be valuable, a trade secret might be the best tool for the job. However, if your invention or innovation can be readily reversed engineered or may have many competitors attempting to arrive at the same place, a patent can provide stronger legal and business protections.
