Attorney Perspective

Perfecting Your Intellectual Property Rights
Intellectual property rights require some form of “perfection” before one can fully realize their value.  Being proactive is not only essential in securing most of these rights, but also critical in fully maximizing them.  Here’s a brief sampling:

Patent Protection, for example, requires you strike a deal with the US Patent Office. The deal is this: you get a time-limited monopoly on your invention, and in exchange, the public receives the benefits of learning from your Published Patent and of making, using, and/or selling your Invention after the monopoly period. Not all inventions qualify for Patent Protection, but for those that do, the process has never been more complex and treacherous. It requires careful, strategic, and experienced effort to optimize your rights while avoiding the innumerable pitfalls.

So with patents, being proactive is required – Patent Rights require the filing of a Patent Application. On Sept. 16, 2011, our Patent Laws were toggled from first-to-invent to first-to-file (starting on March 16, 2013); thus, filing a Patent Application quickly has never been more prudent.

Copyright Protection attaches as soon as an original work of authorship is fixed in a tangible medium of expression that is sufficiently stable.  This includes when a work is written or drawn on paper, painted on a canvas, stored in computer RAM or on a hard drive, recorded on a medium, etc.

Despite this instant protection, you still need to act to maximize your rights. You must register your work of authorship with the Copyright Office before you obtain the right to sue for infringement (and to be taken seriously by a potential infringer). Also, only by registering early can you obtain additional rights, such as the rights to elect statutory damages and to receive attorney fees.

 

Trademark Protection, unlike Patent and Copyright (which are exclusively governed by Federal Law), is covered by both Federal and State Law. Each state governs their own recognition of trademark rights under their laws.  The Federal Government, and most, if not all, states define the scope of trademark protection by use. Trademark “use” has both geographic and time components. So generally, the first to use, and continue to use, a mark in a particular geographic location holds the trademark rights to that mark in that location. Federal Trademark Law, however, provides several significant advantages over state law, such as nation-wide priority, for example. Essentially, this provides instantaneous “use” in all available locations within the United States and can secure trademark protection on a nation-wide basis. So filing early here is also very beneficial.

As can be seen, it certainly pays to be proactive, and quick, when it comes to perfecting your intellectual property rights in the United States. Feel free to give me a call to schedule an initial consultation so we can discuss your intellectual property needs and determine your best options.

 

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