Intellectual Property for Everyone
Faced with the daunting task of making intellectual property relevant to
a broad audience, I looked to those factors which brought me into the practice
of intellectual property law. In my previous occupation as a research scientist
in the pharmaceutical industry, I realized science produced information integral
to economic growth, and, when produced, this intellectual property often lacked
a clear title. Simply said, all property is valuable, but the value of property
lacking a clear title is greatly diminished. As business becomes less geographically
fettered, there is concomitantly a greater reliance on intellectual property
and a need for those individuals in business to have a heightened awareness
of the impacts intellectual property has on the conduct of business.
In today's world, all business owners ignore intellectual property at their
own peril. Intellectual property is not simply patent protection, but a broad
range of options to protect those intangibles each business employs to remain
competitive. Successful businesses such as restaurants, retailers and/or service-providers
may find future expansion blocked by a failure to address critical intellectual
property issues early in the life of their business. Intellectual property
need not be a miracle cure for some disease, but simply a client list, a notebook
for a delivery route, the recipe for a client's hallmark salsa, or a training
manual for a business having 300 percent employee turnover each year. Failure
to protect these valuable assets might place this property in the hands of
competitors eager to use this information to their benefit.
Subsequent to the State Street decision allowing protection for business
methods, patents are not just limited to protecting a gadget, chemical or computer
program. Now patents are a practical method for protecting business methods
critical to the efficient management of business enterprises. With the entry
of business methods patents, highly-efficient business methods can be protected
against use by all competitors for up to 20 years, a boon for business owners.
To insure agreement as to the ownership of intellectual property, an intellectual
property assignment clause needs to be an essential part of every employment
contract. Although often overlooked, patents have historically been issued
for food items, such as cookies and the like, protecting these items from imitation.
A careful decision-making process should be undertaken to decide whether to
employ a patent or some alternate form of protection for any intellectual properties
employed in the normal course of business.
Copyright is critical to small business in protecting those materials employed
in advertising, providing product information to clients, training employees,
ensuring product quality and an endless list of other functions integral to
doing business. Lack of simple and inexpensive copyright protection may allow
a competitor to employ those expensive and critical materials in their business
at no cost, and to the detriment of those who paid to create the information.
Close attention must be paid to the timing of copyright protection to ensure
the right to collect damages is preserved.
Trademarks, although not strictly Property, are critical to businesses for
designating the source of goods and services sold in commerce. Early investigation
into trademark protection provides for the adoption of names, logos or other "trade
dress" not associated with competitor's products or services already on the
market. Attention to trademark issues at the initiation of a business should
preclude litigation over trademarks, prevent the need to establish a new business
identity subsequent to litigation, and capture this business identity nationally
at little expense or effort. Absent close and early attention to trademark
issues, future expansion or the ability to establish a franchise may be foreclosed.
Trade secrets – a thorny issue with many businesses – are another
acceptable method to protect information critical to running a business. Protocols,
customer lists, recipes, manufacturing techniques, troubleshooting guides and
the like can be protected by establishing confidentiality agreements with all
employees. By implementing a policy to have all employees bound by a non-disclosure
agreement, a reasonable level of protection for critical information can be
established. Once established, a universal non-disclosure policy for all employees
can provide for the use of injunctions and/or the award of damages in the event
of disclosure. Absent a policy of universal non-disclosure, remedies such as
injunctions or damages are seldom achieved.
Although a highly-specialized practice area, intellectual property is not
the exclusive domain of individuals admitted to the Patent Bar. Procurement
of Copyrights and Trademarks before the Library of Congress and Patent and
Trademark Office (PTO), respectively, are open to all practitioners. Parallel
to this is the ability of any practicing attorney to sell, assign, value and/or
litigate any form of intellectual property. With intellectual property being
an integral part of modern business practices, the legal professional must
be aware of the impact this area of law has on clients transacting any form
Russell S. Travers, Ph.D., is a partner in the law firm of Travers, Katcheves