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.
- Trade secrets — May include proprietary systems, methods, techniques, formulas, strategies, patterns, compilations, programs, devices, a marketing plan for the introduction of a new software, product, or service, or even a secret recipe for a brand of barbecue sauce. Both state and federal trade secret laws protect sensitive business information.
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.
- Right of publicity — Though the extent of protection varies from state to state, right of publicity laws generally seek to protect the unauthorized use or disclosure, of a person's name or image for commercial purposes, for example, in a box of cereal.
- Geographical indications — Protect signs or images businesses use on products, primarily agricultural, with qualities and characteristics specific to a place of origin.
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:
Restrict printing or taking screenshots
Place a watermark to establish ownership
Prevent users from copying, editing, and saving your work
Restrict the number of devices a single user can use to access your work
Provide time-bound access or limit the times a user can assess your work
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.
- The Berne Convention — Under this convention, the creator of any literary or artistic works enjoys automatic protection in all Berne Convention countries without registering in each country.
- The Madrid System — Allows a creator, while registering a trademark with the PTO, to designate other countries that are part of the protocol where the individual seeks protection.
- Patent Cooperation Treaty (PCT) — Because of this treaty, a US innovator can file an application with the United States Patent Office. The resulting patent preserves its right to file national patent applications in PCT member countries within 31 months of filing in the US.
- The WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty — Collectively known as internet treaties, these treaties strengthen copyright protections of works such as music, software, or books in the digital space without requiring registration. However, creators are encouraged to leverage additional measures, such as Digital Rights Management protocols, to safeguard their work.
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.
- The African Regional Intellectual Property Organization (ARIPO) and African Intellectual Property Organization (OAPI) — To enjoy IP protection in Africa, a U.S. innovator and trademark owners can use ARIPO or OAPI to file a single application and designate multiple in English and French-speaking countries respectively.
- European Union Trade Mark (EUTM) — Useful for trademark protection in the EU member states.
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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Frequently Asked Questions
Intellectual property laws are a body of law that protects the legal rights of people who create concepts, innovations, and other works using their intellect. The primary purpose of intellectual property law is to:
- Foster innovation and economic growth by incentivizing people to innovate with the assurance that they will get recognition and compensation for their work;
- Provide a meritorious system of knowledge dissemination, which allows the public to gain insights into emerging technologies while at the same time protecting the rights of the creators;
- Protect the investments of pioneers, who may be individuals or companies who have made significant investments to improve existing products, concepts, and inventions or make discoveries; and
- Protect consumers with trademarks by providing mechanisms through which consumers can establish the origin and quality of services and products in the market.
It depends on your interests and career goals. Therefore, if you are a person who seeks an area of practice that’s lucrative and offers a chance to interact with a wide range of issues both locally and internationally, then IP law is a field you should consider. You get to collaborate with dreamers and change makers in society, advising around how best to protect the intellectual property.
However, since a good lawyer must have a technical background to understand a client’s patent best and assess its validity, consider combining your law degree with certain types of technical degrees or experience in science, engineering, or another relevant field.
Yes, intellectual property lawyers are in high demand. Innovation steadily increases as the modern world blends traditional knowledge with cutting-edge technology. People and businesses are continually making discoveries and refining existing technologies. Therefore, intellectual property lawyers are highly sought-after as it plays a critical role in protecting these innovations.
The number of laws safeguarding intellectual property in the united states is:
- The Patent Act — Prevents others from using and commercially exploiting a patented innovation.
- The Copyright Act — Outlines conditions for fair dealings of copyright works, which include research, review, reporting news, judicial proceedings, or giving professional advice.
- The Lanham/Trademark Act — Provides for the national system for trademark registration and protects the owner of a federally registered mark against the use of similar marks in contexts likely to cause consumer protection.
- Digital Millennium Copyright Act (DMCA) — Prevents the creation of tools and devices designed to circumvent measures that control access to copyright works.
- Trade Secrets Act — Provides the framework for litigation for misappropriating important business information.
- Leahy-Smith America Invents Act (AIA) — Enacted to strengthen the U.S. patent system by providing that patent awards would be given to the first person to file as opposed to the person who could prove they were first to invent in case two people simultaneously claim that they created an invention.
- Plant Variety Protection Act — Safeguards the intellectual property of breeders who produce new sexually produced plant varieties.
- Vessel Hull Design Protection Act — Protects the original design of boat hulls.