BUSINESS AND INTELLECTUAL PROPERTY RIGHTS:

There are only three ways to protect intellectual property: through the use patents, trademarks or copyrights. A patent applies to a specific product design; a trademark to a name, phrase or symbol; and a copyright to a written document.

Copyright Protection

A copyright will protect the following categories of works:

• literary works
• musical works, including any accompanying words
• dramatic works, including any accompanying music
• pantomimes and choreographic works
• pictorial, graphic and sculptural works
• motion pictures and other audiovisual works
• sound recordings
• architectural works
• Computer programs (sometimes the graphical user interface) and websites.

Patents

Patents protect processes, methods and inventions that are "novel," "non-obvious" and "useful." If granted, a patent gives you a 20-year monopoly on selling, using, making or importing an invention. The requirements for a patent are complex, but here they are in a nutshell:

• Your work must be novel
• Your work must be non-obvious
• Your work must be useful.

Trademarks

A trademark is like a brand name. It is any word(s) or symbol(s) that represent a product to identify and distinguish it from other products in the marketplace. A trademark word example would be "Rollerblades." A trademark symbol would be the peacock used by NBC.

A trademark can be registered in three ways:

1. By filing a "use" application after the mark has been used.
2. By filing an "intent to use" application if the mark has not yet been used.
3. In certain circumstances in which a foreign application exists, you can rely on that.

The Importance of Intellectual Property Rights in Business Deals:

1. Freedom to Operate

A freedom to operate (FTO) analysis should be performed. If the deal involves making, using, or selling a product in the United States, it is critical to analyze whether such a manufacture, use, or sale might infringe a U.S. patent. 

2. Patent Coverage

In sports, it is often said that the best defense is a good offense. That saying often applies to business deals as well. One way to minimize the business impact of patents of another company is for the company to invest in developing its own patent portfolio. These patents could be used to make sure that no one can copy the invention. 

3. Due Diligence

 It is important that this due diligence be done before the deal is completed. This is not much different than inspecting a house before buying it to make sure that there are no hidden defects. It is to make sure that the deal is without any defect and with no future issue in the deal sealed.