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Elizabeth Shieldkret
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Trade Secret & Consumer Law Website

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What is Intellectual Property?

Property is the right to exclude others. Most often we think of this in terms of real property: your land. When you say that you own your land or your house, in legal terms this means that you have the right to keep other people from entering them. Similarly, your stuff, known as chattel, is said to be yours because, contrary to what your mother told you as a child, you do not have to share.

Intellectual property ("IP") is the set of rights that you can have in useful inventions, creative works (like books and other writings, music, paintings and photographs), designs, goodwill and information. Because intellectual property is not as easy to identify as your land, house or other stuff, it is sometimes called intangible property. The intangible nature of intellectual property--and the many restrictions on its use--sometimes make it difficult to determine what rights, if any, you actually have.

For example, no one has a right to exclude you from writing a story or screenplay about an archaeologist adventurer. Such general themes are not protectible. You will almost certainly receive a cease and desist letter (and may be liable for infringement) if you publish a book or make a movie about an archaeologist adventurer named Indiana Jones. If you change the character's name or profession do you avoid liability? That depends; you may not know how close your character or story can be and not infringe. Even if you could figure that out, you might still have a problem convincing the owners of Indiana Jones that you do not infringe.

Since IP rights are the right to exclude others, they are not a right to use your intellectual property freely. For example, you may patent an invention, but you are not free to make, use or sell it if it would infringe someone else's patent. Similarly, you may create a new work, but if it is based on someone else's copyrighted work, you may not be able to produce copies of your work (and if it is based on a work already in the public domain, you will only have the right to exclude for the part you created). In both examples, you might solve your problem by procuring a license from the other IP holder. Nevertheless, obtaining your patent or copyright does not give you rights to use or commercialize your IP, only the right to exclude others.

This system of evaluating rights is what keeps IP lawyers busy. They help:

• obtain registration and other protections for your IP
• prevent you from taking actions which could diminish or extinguish your IP rights
• determine the scope of your and others' rights so you can plan and make business decisions
• obtain and grant licenses and
• litigate issues that cannot be resolved by negotiations or other forms of dispute resolution

Types of Intellectual Property

There are several types of intellectual property: copyright, trademark, patent and trade secret. There are ways in which each is distinct from the others and ways in which they may overlap. Click Here for more about Patents, Trademarks, and Copyrights

Copyright and patent protection are covered exclusively by federal law. Trademark protection is covered by federal law, but there are also state trademark laws. Trade secret is covered by state law, so the extent of your protection can vary from state to state. There is also federal legislation concerning the theft of trade secrets. The United States is also a signatory to several international treaties concerning copyright, patent and trademark law so you may be able to protect your IP around the world.

IP and Other Laws

State contract law covers licensing of IP, and agreements with employees and others. Contract and consumer law also governs sale of products covered by IP. Certain practices may implicate antitrust statutes.

You may also need to know the best way to market your invention or creative work. You may want to organize a corporation, limited liability company or partnership based on the structure and tax consequences that best suit your needs.

An IP Attorney

A knowledgeable IP attorney will assist you with obtaining and maintaining coverage for your intellectual property. She will advise you on identifying and protecting IP as it is developed, as well as increasing the value of the IP by licensing and marketing arrangements. She will assist with other issues as well, such as choosing a structure for your organization or employer/employee relations concerning IP. If your IP is valuable to you, you will benefit from the advice of a knowledgeable IP attorney.

When you need a knowledgeable IP attorney, please contact me.

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