Intellectual property is owned by its creator, and with ownership comes a number of rights related to the use and restrictions on the use of the property. Intellectual Property law deals with the questions of what is intellectual property, how is ownership achieved, and what are the rights associated with ownership. In the event that a person or business encroaches on the right of another, intellectual property litigation may be pursued. The management of intellectual property rights is vital to the development and implementation of new ideas and creative works as well as the protection of the goodwill and reputations of particular entities.
Traditionally, intellectual property is broken into 4 primary categories, each with its own unique aspects.
Patents. A patent is a grant of intellectual property, issued by a sovereign, protecting rights in a new process, machine, manufacture, or composition of matter. Patentability requires that the invention must be useful, novel, and non-obvious. A party interested in obtaining a patent must file an application with the Patent and Trademark office outlining the extent of the property – called the “claims”. Much like a legal description of land, the claims carve out the boundaries of the intellectual property and cannot infringe on the property of another.
Practice in Patent Law is usually divided up into two primary areas: Patent Prosecution is the process of filing for and acquiring a patent, and Patent Litigation is the process of suing to enforce the rights of a patent against infringers. While any attorney may be qualified to assist in patent litigation matters, only persons specifically licensed to practice in front of the United States Patent and Trademark Office may assist in patent prosecution. If you need help in the area of patent prosecution you need to find a licensed patent attorney or patent agent.
Trade Secrets. Trade secrets are protected under state law. A trade secret is usually some type of information, formula, device, or process and must have economic value in order to be protected. The owner of a trade secret must make efforts to maintain its secrecy. Naturally, it also follows that the information sought to be protected is actually a secret – otherwise it cannot qualify for protection.
Copyright. A copyright is a protection of a form of expression or originality. Music, books, photographs, paintings, and sculptures are all examples of works that may be protected under copyright. A work need not be filed to be protected; however, filing with the Copyright office will provide additional rights.
Trademark/Trade Dress. Trademarks and trade dress protections relate to words, names, emblems, packaging, and logos of products and companies. The purpose of these marks is to distinguish and identify the source of the product or service. A competitor using a similar mark may be guilty of infringement if their mark creates a likelihood of confusion or mistake in the market place. Trademarks serve an important role in protecting the goodwill and reputation of companies.
Successfully pursuing patent and other intellectual property claims requires analysis of the specific design or product in question as well as the general state of the “art”. Patent infringement suits are typically defended firstly by claiming that the allegedly infringing product does not infringe or secondly by raising the invalidity defense. This defense may require a party to show that the patent is invalid because it fails to meet one of the criteria for patentability (such as novelty) or by showing the invention is obvious to a person of ordinary skill in the art. These are complicated issues requiring someone of extra ordinary skill in the art to perform a review and analysis of the particular invention in light of the prior art. As university professors, RWFE associates are up to date on current trends and research in their relative fields of expertise and are highly qualified to render opinions regarding the patentability and infringement of various products. For trade secrets cases, it is usually a requirement that the secret have economic value and not be known to public. If a party can show that the particular secret is published or otherwise available to the public through legal means, it may not be protected.