Last month, the National Science Foundation (NSF) and the U.S. Census Bureau released survey results on the importance that businesses place on various forms of intellectual property (IP). John Jankowski, lead author of the report in NSF's National Center for Science and Engineering Statistics, stated:
In today's global economy, much of a business's competitive advantage lies in the ability to protect and exploit exclusive rights over investments in intellectual property (IP) . . . IP protection is a persistent and recurrent concern of businesses.
Victoria A. Espinel, the first U.S. Intellectual Property Enforcement Coordinator, also explains the value of intellectual property:
Intellectual property are the ideas behind inventions, the artistry that goes into books and music, and the logos of companies whose brands we have come to trust . . . I believe it is enormously important that the United States remain a global leader in these forms of innovation – and part of how we do that is by appropriately protecting our intellectual property.
However, before you are able to protect and commercially exploit your intellectual property, you must first determine what intellectual property you own. The best way to identify your intellectual property is through an IP audit.
You should provide detailed information and documentation about your business, products and/or services, advertising, employee and contractor agreements, and material contracts to an attorney with experience in intellectual property law. The attorney will review the information and documents, prepare an index of all intellectual property that exists, who owns it, and the best way that you can protect it.
The audit may reveal that you do not own the intellectual property that was created for your venture, in which case an Assignment or License Agreement may be necessary to transfer the rights to you or your business. In other cases, an audit will reveal that a third party is infringing on your intellectual property rights or that you are infringing on a third party's rights, in which case legal options will need to be discussed. The audit may also reveal intellectual property that was never recognized or treated as an asset. Counsel can recommend the best way to preserve and protect any rights that remain in that asset.
According to the NSF survey, trademarks and trade secrets are the most important forms of intellectual property according to most businesses, followed by copyrights and patents.
Trademarks are words, names, symbols, devices, or any combination thereof that identify the source of products or services and distinguish them from other products or services in the marketplace. Trademark protection may be available for the name of a product, a stylized version of a company's name, and a slogan, among others.
A trade secret is information that is sufficiently secret to derive actual or potential economic value from not being generally known to those who can obtain economic value from its disclosure or use and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Trade secret protection may be available for customer lists, programs, technology, processes, financial data, know-how, research and development data, and unique combinations or compilations of information that is not capable of protection otherwise.
Copyrights protect original works of authorship that are fixed in a tangible medium of expression, such as books, articles, web site design and content and computer programs.
A patent is the right to exclude others from making, using, offering for sale, or selling an invention in the United States or importing the invention into the United States.
The Law Offices of Marc J. Lane can help you identify the intellectual property that you own through an IP audit. For further information, please contact Marc Lane in confidence via email at mlane@MarcJLane.com, or telephone at (312) 372-1040/ (800) 372-1040.
Cori A. Mathis is a Principal with The Law Offices of Marc J. Lane, a Professional Corporation. Ms. Mathis is a graduate of De Paul University College of Law (J.D.) and the University of Illinois (B.A.S.).
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