Maryland Bar Bulletin
Publications : Bar Bulletin : March 2007

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 Bar Bulletin Focus

Intellectual Property     

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 of business.

Russell S. Travers, Ph.D., is a partner in the law firm of Travers, Katcheves and Associates.

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Publications : Bar Bulletin: March 2007