Intellectual Property Law

Intellectual property law fuels innovation by safeguarding inventors' and creators' rights while simultaneously availing their knowledge for others to refine or bring to life new inventions.

In this guide, discover everything you need to know about IP law and how you can protect your rights or leverage existing knowledge with due regard to the rights of others.

What Is Intellectual Property Law?

Intellectual property law is the set of federal and state laws that protect the rights of creators and owners of inventions, including music, literature, designs, or artistic expressions.

Different Types of Intellectual Property Law

There are four main areas of intellectual property law, depending on the nature of work or protection a person or institution seeks to secure.

Protection of ideas and concepts

Through patent and business secrets laws, the legal system provides certain protections, rights, and privileges for people who think up new ideas and concepts.

• Patent — Without express permission from a patent owner, another person cannot use, sell, or make a patented invention, but only for a limited time.

Protection of works (tangible outputs)

Beyond protecting ideas and concepts, you can leverage patents and copyright to protect innovations. Patent law secures the functionalities and structures of inventions. At the same time, copyrights protect the expression of ideas through mediums like literature, art, and music.

There are three main types of patents:

Utility — Protects the creation of new or valuable improvements of processes, manufactures, products, or compositions of matter. The right over a utility holds for 20 years, starting from the application's filing date.

Design — Used to protect the ornamental appearance of a product and lasts 15 years from the date the patent is granted.

Plant — Assigned to protect new kinds of asexually (without the involvement of seeds) produced plant varieties and lasts 20 years from the application's filing date.

Copyright laws — Protect tangible forms of original work such as art, music, architectural drawing, or software code. Copyright gives the owner of the intellectual property the exclusive right to sell, publish, reproduce, and distribute their work.

Protection of branding and identity

• Trademark — A sign, symbol, smell, sound, phrase, name, or color scheme that distinguishes goods or services. Unlike patents, trademarks can be renewed indefinitely as long as they are actively used in commercial activities. Unlike copyrighted works, trademarks receive different degrees of protection depending on various factors, such as the type of service or product the mark identifies, consumer awareness of the trademark, and the geographic area where the trademark is used.

Who Should Care About Intellectual Property Rights?

Everyone should care about the rights protected under intellectual property law. Musicians, artists, engineers, scientists, authors, and inventors should concern themselves with proprietary rights to understand the nature of protection they can enjoy for their work and how to leverage existing knowledge to benefit society.
Entrepreneurs and businesses should also keenly follow intellectual property laws so as to be well informed of emerging technological trends likely to positively or negatively disrupt their industries.
Consumers should also care about intellectual property rights, especially trademarks, as they can help them identify and distinguish goods and services.

Protecting Against Infringement

Enforcement of intellectual property involves protecting the intellectual property against infringing uses and guarantees the owner will obtain the economic benefits of holding a formal registration. The best way to protect your intellectual assets includes the following.

1. Determine the appropriate Intellectual Property for your asset

The first step is determining the right vehicle for your IP rights protection. The best way to choose the proper protection for your innovation is to determine if you require protection over ideas, concepts, tangible inventions, or brand identity. Once you have a grasp of the nature of your innovation, then you can choose the appropriate registration vehicle.

2. Registration

Intellectual property involves registering with the relevant government bodies, and even though copyright can be automatically conferred in some cases, it is always essential to lodge a formal registration.

Find below an outline of the registration offices for each type of registration.

Agency responsible: United States Copyright Office

Mandate:

• Registration of copyrights;
• Recording copyright-related documents; and
• Providing information or assistance to copyright owners and applicants.

Agency responsible: United States Patent and Trademark Office (PTO)

Mandate:

• Review patent applications and grant patents to creators; and
• Provide information to patent owners, applicants, and the public.

Agency responsible: United States Patent and Trademark Office (PTO)

Mandate:

• Examines trademark applications;
• Publishes applications for opposition; and
• Record trademarks in interstate and international commerce.

Agency responsible: No government agency is mandated to record business secrets in the United States. However, most states have adopted the Uniform Trade Secrets Act (UTSA) to provide a legal framework for protecting business information that has economic value.

Mandate:

• Forty-seven states and the District of Columbia have adopted the UTSA.

Agency responsible: United States Patent and Trademark Office (PTO)

Mandate:

• Examines and grants design patents for new, original, and ornamental designs for an article of manufacture.

Agency responsible: There is no government agency for registering the right of publicity. However, invasion of privacy laws protect individuals from exposing private information or unauthorized use of their image and name.

3. Digital rights management (DRM) systems

If your work is published online, Digital Right Management systems are encryption systems designed to protect intellectual property rights in the digital space. The encryption can do any of the following depending on your instructions:

You can use a DRM protocol to protect your eBooks, songs, software, or other literary works.

4. Non-disclosure agreements for trade secrets protections

Leverage a stringent non-disclosure agreement to restrict the extent to which your employees, partners, and consultants can share business secrets and strategies. Use access credentials, passwords, and a segregated filing system for critical business information to ensure vital data is compartmentalized and accessible only to authorized personnel. However, it is essential to note that trade secret protection depends on whether confidential information gives a business an advantage over competitors.

International Protection of Intellectual Property Law

In an increasingly globalized world, protecting intellectual property across borders is essential. International IP law comprises various treaties and agreements that guide the protection of copyrights, patents, trademarks, and other forms of knowledge assets across borders under the World Intellectual Property Organization (WIPO). WIPO runs training courses where people can learn about international IP law. It administers the following multilateral agreements in which the US is a member:

• The Paris Convention — Once a U.S. pioneer files a patent application in the United States, they can file patent applications in other member countries of the convention within 12 months, and subsequent filings will be as though they were filed on the same date as the US application.

Additionally, creators in the US can also file for the protection of their work through the following regional agreements:

• European Patent Convention (EPC) — If a US creator wants to protect their mental labor in Europe, they can file for a single patent through the European Patent Office (EPO) under the EPC. The applicant can designate the countries where they seek protection in the application. Once granted, the individual must have the patent validated in each country.

Due to the complexities of the multi-country legal system, enforcing protection over knowledge assets can be challenging. It is, therefore, essential to work with a qualified attorney.

Role of the International Trade Commission (ITC)

Section 337 of the Tariff Act of 1930 gives ITC the power to regulate and investigate claims on fair trade practices, such as imports that infringe on U.S. copyrights, patents, or trademarks.

Companies or individuals can lodge complaints with the ITC to investigate unfair practices. If the agency finds a violation, it can issue exclusion orders to stop the importation of goods in violation into the U.S. If the goods are already in the service, the commission can issue cease and desist orders to prohibit their sale and distribution.

The commission advises the President and Congress on trade-related issues, including intellectual property law. The agency is lauded for being more agile in resolving matters than federal district courts.

However, as economic activities enter the digital sphere and companies leverage multi-country supply chains for component manufacturing, the ITC must evolve to protect inventions and address complex intellectual property issues. Adapting its enforcement mechanisms and fostering international collaborations are crucial for the ITC to safeguard IP rights in this interconnected landscape efficiently.

What Do Intellectual Property Lawyers Do?

An intellectual property lawyer specializes in domestic and international intellectual property to obtain the greatest rights available for the client and respond to action issues to fulfill registration requirements. Their typical roles include:

Client counseling and developing strategies — Legal counsel and intellectual property protection strategies. For instance, in the case of a trademark, the attorney searches on trademarks proposed by the client and offers counsel on the mark's availability.

Local and international IP protection — Help in preparing and filing an application for intellectual property registration with the relevant government or multinational agencies.

Enforcement — An intellectual property lawyer can help clients enforce their creative property rights by monitoring for infringements and taking necessary action.

Litigation — Enforcement of intellectual property law may sometimes lead to litigation in federal court. The lawyer supports drafting the documents necessary for court and represents the clients.

Contract drafting — Since intellectual property may be given away in part or whole through licensing agreements, attorneys help draft such contracts to help secure client compensation for the license. The lawyer can also help draft non-disclosure agreements to protect vital business information.

Due diligence in mergers or acquisitions — Helps review the value and risks associated with a target company's knowledge assets in mergers and acquisitions.

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