Intellectual property is a general reference to such things as patents, copyrights, trademarks Iservicemarks, and trade secrets. The value of these types of assets are often manifested through some aspect of a business's goodwill. Violating the rights of an intellectual property owner is a form of unfair competition and may by remedied through the courts. Such relief may take the form of an award of damages, injunctive relief, or both.
Patents are essentially a government grant of the right to exclude others from practicing the invention claimed in a particular patent. There are three types ofpatents: utility patents, plant patents, and design patents. Utility and design patents are the most frequently encountered.
Utility patents are issued for a new and useful process, machine, manufacture, or composition of matter. A patent includes one or more "claims" particularly pointing out and distinctly claiming the subject matter of the particular invention. A patent is infringed when all the elements of one or more "claims" of the patent can be found in the alleged infringement. Validity of a patent is presumed, but can be attacked in court.
Design patents are issued for any new, original, and ornamental design for an article of manufacture. A design patent does not protect solely functional aspects of a design. It is a picture patent so the drawing in the patent defines what the patent encompasses. Infringement occurs when this drawing is compared with the alleged infringing design and, if in the eye of the ordinary observer, there is a deception or confusion.
Patents are strictly a creature of federal law, although state law may affect ownership. Patent litigation involves a vast array of factors and legal criteria. Infringement claims are often extremely expensive and depend in great part on the character of evidence developed. Multiple appeals are not uncommon.
The Wilson Firm has served as trial and local counsel in a variety of patent litigation actions. Further, attorneys with the Firm have provided advice and counseling concerning the enforceability of patent rights.
A copyright is the recognition that the author of a "work" is entitled to control the commercial exploitation of the mode of expression in the work. Most commonly,copyrights are associated with books or music; however, other areas, such as dramatic works; pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, architectural works; and software design can involve copyrightable features as well. For infringement, the alleged infringer must have access to the copyrighted matter and substantially copy it. Often, "copying" is proven through the degree of similarity between the protected work and the later one; however, a person is entitled to his or her own unique creative products even if identical to some prior work.
Various of the Firm's business clients have been represented concerning both the protection and enforcement of material eligible for copyright protection.
Words or designs that are used to promote a product are called trademarks. If a service is promoted, the mark is referred to as a service mark. A user of a mark can have rights under either federal or state law. Rights may also exist regardless of whether the mark is registered. A mark is infringed when a junior user adopts a mark that is confusingly similar to that of the senior user.
Under the federal Lanham Act, false designations of origin, false descriptions, false attributions of sponsorship that are likely to cause confusion or to deceive or, in commercial advertising, misrepresentations of the true nature, characteristics, qualities, or geographic origin of goods or services can give rise to a civil action for damages and injunction.
The Wilson Firm has attorneys experienced in trademark matters. Experience ranges from advice concerning the relative strength and/or weakness of a mark, filing for registration, enforcing and preserving trademark rights, and defending unjustified claims of infringement.
Some devices and methods are better protected as trade secrets than by thepatent process. Each has advantages and disadvantages. Any pattern, process, design, or compilation of information is eligible for protection as a trade secretprovided it gives a business an advantage over its competitors. Trade secret litigation is becoming more prevalent as it often serves as a means to achieve post-employment restrictions where there is no non-competition agreement.Trade secrets are derived from state law, but are often litigated in federal court.
Attorneys at the Firm have been involved in addressing trade secrets issues on a variety of levels. Clients have relied upon our advice ranging from whether protectible information exits and how to best protect that information to litigation of trade secrets claims through trial and appeal.
Unfair competition can involve facets of intellectual property in addition to the areas listed above where the parties are direct competitors. Other examples ofintellectual property or claims arising from the alleged wrongful use of intellectual property may include: trade dress infringement, false designation of origin, dilution, palming off, reverse palming off, false advertising, andmisappropriation.
Each of these potential claims involves certain nuances that distinguish each from the others; however, they all exist in order to protect ingenuity while promoting free and fair competition on one level or another. Balancing the rights of competing parties with the public interest in full, fair, and free competition often can require a comprehensive approach to dispute resolution. Wilson, Robertson & VanDeventer, P.C.'s ability to fully serve its clients' needs often proves beneficial in crafting productive solutions between competitors.