Introduction to Intellectual Property

Intellectual property rights allow you to legally protect the inventions, brands, logos, written material, software, designs and the like that you create for your business. The legal protections come in the form of patents, trade marks, copyrights and design rights, all of which allow the owner to prevent another person from using the work created and sue for damages if unauthorized use occurs.

These rights can be very valuable, so in operating your business it is important to first understand what intellectual property rights you have, and then take the necessary steps to secure, protect and enforce them. Conversely, you should become aware of the intellectual property rights held by others in your line of business. If you fail to do so and inadvertently violate the patent, trade mark, copyright or design right of another person, you may find yourself in receipt of a letter or legal complaint requesting you to stop using a brand or machine that has become an important part of your business, not to mention facing a claim for significant damages for infringement.

Some intellectual property rights require government registration and approval to be enforceable, while others do not. To receive a patent on an invention, a patent application meeting the appropriate tests and requirements must be filed and approved by the Irish Patents Office. Otherwise, inventions can only be protected to the extent they remain confidential trade secrets.

Trade marks can in theory be protected without government registration under the common law prohibition against “passing off”, or the misleading use of a name, brand, etc. to make the consumer believe that the product or service being offered originates from someone who has previously developed goodwill in the trademark. However, enforcement of officially registered trade marks and designs is much easier and more effective, and there is significantly more value in a registered trade mark.

In Ireland, copyrights vest automatically upon creation of the work and do not require registration to be enforced. In fact, there is no copyright registration process in Ireland. But protection in certain foreign countries such as the United States may be enhanced by registration, so if you intend to do business outside of Ireland you should investigate the matter appropriately.

In order for a patent to be issued on an invention, a trade mark or design to receive official registration, or a copyright to vest in its owner, the created work must meet the appropriate legal test and not fall within one of its exceptions. In each area of intellectual property law, this is an extremely complicated subject and often requires the advice of a solicitor, trade mark agent or patent agent. Don’t assume you can glance at the legal requirements and assume you understand their implications. They are often not as simple as they appear.

In addition, once an intellectual property right is created, it must be maintained and enforced to keep its value. Certain rights such as patents require annual filing fees or they will lapse, and trade marks must be put to use within a certain time frame. Time, money and effort must also be spent policing potential infringements and following up with letters, negotiations and possible legal actions. In addition, if you are planning on selling your products or services outside of Ireland, you will have to think about filing patent applications and trade mark registrations in other countries as well.

All of this effort and expense is often worthwhile, however, because intellectual property rights may become one of your business’s most valuable and easily exploitable assets. The value of intellectual property rights is not only in their usefulness to your business. They can be sold and licensed as well, often for considerable amounts of upfront money or downstream royalties that can supplement your business revenues. As a result, your intellectual property will increase the value of the shares in your company, increase the collateral available when seeking bank financing, and provide an asset that can be exploited in joint ventures and other strategic relationships.

Therefore, to identify and maximize the potential value of your intellectual property, when establishing a new business you should analyze all of the intellectual property that your business intends to use and assess whether it is eligible for patent, trade mark, design or copyright protection. This means you should look at all of the technology and machines, brand names and logos, product and other designs, written materials and software that will be used in your business, and develop a plan of action to ensure your right and ability to protect those assets. Then each time a similar item is added to your business, perform the same analysis. Conversely, you should analyze all of those same items of intellectual property and make sure that they do not violate the rights of another person or business.

Finally, it is important to take adequate steps to protect your trade secrets, know-how and other confidential information that provide your business with a competitive advantage. For example, there may be reasons not to file a patent application on a process you developed to manufacture your product, but it is still extremely valuable as long as it has not been disclosed to the public. By keeping access to that secret process restricted to persons who have a clear duty to maintain its confidentiality, you can still protect the asset, restrict its use outside your business, and exploit its value by selling or licensing it to third parties.

We’ll now take a closer look at each of the major forms of intellectual property rights, including how to secure, protect, maintain, and enforce those rights, as well as the methods for maximizing their value.

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