Answered: 3 Common Questions about Intellectual Property

Many business owners grasp the importance of building and maintaining a strong brand. Yet many of these same owners fail to take the practical steps required to protect their intellectual property (IP).

Why?

In many cases, owners are simply unfamiliar with the various forms of IP protection available. Sometimes they’re “too busy running the business” to worry about “intangibles”. In other cases, the prospect of “expensive attorney fees” is what keeps an owner from protecting their assets.

Whatever the reason, “IP” can be an overwhelming topic. If any of these resonates with you, we’re here to help.

Here are 3 common questions we’ll answer in this article:

1.      What is Intellectual Property and Why Should I Care?

2.      What Low-Cost Resources are Available?

3.      What are Some Common Mistakes?

1. What is Intellectual Property and Why Should I Care?

According to the International Trade Administration, “Intellectual property (IP) refers to creations of the mind: inventions; literary and artistic works; and symbols, images, names and logos used in commerce. Businesses are often unaware that their business assets include IP rights” (emphasis added).

Intellectual property is a subset of the intangible assets of a firm or individual. An intangible asset is a non-monetary thing that cannot be physically touched, seen, or felt, in contrast to a tangible asset, which usually has a physical substance.

Here’s why all this matters. Businesses must maintain a competitive edge while staying out of legal trouble. Grasping the basics of IP strategy helps facilitate this. For example, some intellectual property is “natively” assigned to you or your business (some copyrights), while some must be registered (patents), and some can be both natively assigned and registered (trademarks).

Here are four key types of IP:

1.      Patents: Patents protect inventions, which can include products, machines, processes, etc. They give the holder the exclusive right to use and profit from the given invention for a specified period. Ever seen the words “Patent Pending” or “U.S. Patent #” on a product?

2.      Trademarks: Trademarks protect brand elements such as names, logos, slogans, or other marks. They help prevent confusion in the marketplace among consumers. Ever seen the symbols “®” or “™” beside a logo, name, or piece of text?

3.      Copyrights: Copyrights protect original authored works, such as books, music, artwork, articles, etc. Copyrights can also protect software. They give the creator exclusive rights to reproduce, share, and profit from their work. Ever seen the words “Copyright 20XX” at the bottom of a website?

4.      Trade Secrets: Trade secrets protect confidential business information. This includes things like customer contacts, formulas, designs, data, strategies, or other kinds of “secret sauce.” They provide a competitive advantage by keeping valuable information from falling into the wrong hands. Ever seen a “Confidentiality Statement” before when filling out hiring paperwork?

2. What Low-Cost Resources are Available?  

The United States Patent and Trademark Office is a federal agency that is responsible for granting patents, registering trademarks, and much more. They offer a wealth of free resources on their website, including educational materials, databases, and online application tools. Here are 3 tools you may find helpful:

1.      IP Identifier: Think you may have something to protect but aren’t sure where to begin? The USPTO recently launched a simple, user-friendly tool to help identify what IP may apply. This is an excellent resource for anyone who is unfamiliar with IP protections or who is just beginning their IP journey.

2.      Patent Search and Filing: One of the most important steps to filing a patent is the upfront search. The USPTO’s Patent Search page includes an excellent suite of resources to help. And, once you are ready to consider applying, the recently updated Patent Center page is a great place to familiarize yourself with the process.

3.      Trademark Search and Filing: Think your mark is unique? Before applying, be sure to spend some time with the USPTO Trademark Electronic Search System (TESS) to confirm this is actually the case. Once you’ve confirmed your desired mark appears to be unclaimed, review the USPTO Trademarks Basics page to ensure a thorough understanding of the process. It’s important to be thorough and meticulous when filing a Trademark application; as of December 2022, average new Trademark application processing times were approximately 14.3 months.

3. What are Some Common Mistakes?

There are plenty of mistakes to be made when it comes to managing IP. Some of the most common include:

·        Not Recognizing the Importance of IP

As discussed in the introduction, it is all too common for business owners to simply ignore or undervalue the impact of the various forms of IP on their brand.

·        Failing to Conduct Proper Searches

Do you tend to ask forgiveness rather than permission? Well, when it comes to performing a thorough IP review… we don’t recommend this. Failing to complete a thorough IP review could lead to infringement of already claimed IP resulting in legal action against you. Effective utilization of the resources mentioned above should minimize this risk.

·        Failing to Involve Professional Counsel

Developing your IP strategy and taking steps to protect your IP can be extremely technical and complex. It makes sense to involve legal professionals early and often to minimize wasted time and effort.

·        Not Keeping IP Up to Date

Many forms of IP must be maintained to remain active. For example, patents may require maintenance fees, and trademarks often require periodic confirmation of use and renewal.

·        Not Using Confidentiality and IP Assignment Agreements

Confidentiality agreements are critical to ensuring  that trade secrets stay that way. IP assignment agreements, which are often included within hiring paperwork, clarify that any IP created as part of an employment arrangement is assigned to the company, not the individual. Both of these documents can be critical to maintaining control over a firm’s intangible assets.

Parting Thoughts

In summary, Intellectual Property is an extremely important component of any thriving business. We’ve defined the basic forms of IP, discussed a few of the many low-cost resources available to help, and highlighted several common mistakes. Still not sure where to start? Please give us a call - our team of IP experts can help.

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