Guide to Intellectual Property: How companies can value and protect their best ideas
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Intellectual Property (IP) is big business, worth an estimated $5 trillion in the US alone. It covers patents, trademarks, domain names, copyrights, trade secrets and know-how. The IP of a big brand can be worth tens of billions of dollars. And yet IP is hard to value; accountants struggle with it, and banks treat it cautiously as loan collateral.
Unsurprisingly, companies zealously guard their own ideas and fight to acquire those of others. Damages arising from infringements have fostered a sizeable claims industry. But IP law is complex. Protections deemed excessive to one party are seen as inadequate to another. Court decisions and interpretation of IP laws can be unpredictable, and can dramatically change the fortunes of businesses that rely on their IP – as demonstrated in the pharmaceutical industry’s battle with generic drugs.
This guide to intellectual property will help companies, investors, and creative thinkers understand the scope and nature of IP issues, and maximize the value from this important intangible asset.
interactive development process with users may result in patentable inventions being disclosed to the public before applications can even be drafted and filed. In the technology world, however, having a patent portfolio may be regarded as an indication of strength, and patent-light companies may acquire patents around the time of an initial public offering (IPO), both for their profile and for defensive purposes. This is because an IPO is sometimes a trigger for litigation by patent owners who
especially in the US, largely because of the political fall-out from the activities of patent assertion entities (PAEs, sometimes called “patent trolls”). This creates uncertainty, though the way the law is changing is likely to cause more problems with existing patents rather than those sought in future, as patent lawyers will be able to take the changes into account when drafting future patent applications. However, whether the patents that can be obtained are of sufficient scope to protect
www.lexmachina.com 5Patent Assertion and US Innovation, Executive Office of the President, June 2013: www.whitehouse.gov/sites/default/files/docs/patent_report.pdf 6Khan, B.Z., Trolls and Other Patent Inventions: Economic History and the Patent Controversy in the Twenty-First Century, Hoover IP 2 Working Paper Series, Working Paper No. 13001, October 24th 2013: www.hoover.org 7“Untouchable intangibles”, The Economist, August 30th 2014. 8Beattie, A., “Intellectual property: a new world of
powerful competitive weapon and, in the right circumstances, valuable property. However, in eBay v MercExchange, the Supreme Court decided that: [The test for an injunction] requires a plaintiff to demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law [ie, damages] are inadequate to compensate for that injury; (3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public
an increasingly important and low-cost form of IP. That design rights have become increasingly important has been highlighted by the “phone wars”. Design patents and design rights have been at the heart of Apple’s litigation against Samsung relating to the iPhone and iPad. Design rights are also becoming more used in the fashion industry, and changes in the UK law in 2014 have made design rights stronger there. It is also the case that although the extent to which 3D printing will spread