Startup IP

with Jack Russo

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Protecting intangibles

Jack Russo

Startup Attorney, IP Pioneer, Entrepreneur Advocate

Lessons Learned

IP law is a body of law protecting intangibles.

The debate continues over how significant an innovation must be to merit protection by the law.

Patents give you exclusivity rights for up to twenty years. Trademarks are indefinite.


Lesson: Startup IP with Jack Russo

Step #1 IP: Protecting intangibles

So you'll hear the term "IP" for intellectual property, or "IPR" for intellectual property rights, and it really is a body of law protecting intangibles.

When you have an idea, if it's not been published, it can be protected by state law of trade secrecy, or sometimes called the State Law of Confidential Information. Even an idea for something that might be as simple as an improved cup, where you changed some aspect of this cup that's currently holding a liquid, you can change something very minor, and if you keep it secret, it's protected as a trade secret if it meets the test for trade secrecy protection.

If you want to go one step further, and often with something that has to be productized as a cup, you will, you file what's called a provisional patent application, which U. S. Law allows, which allows you to get a filing date with the U. S. Patent Office. If you have a name that you're putting on the cup, you can protect that by trademark law. If you have a particular look, this particular cup has kind of a certain look to it because it has various names and features on it, you might be able to protect those as trade dress. The Perrier bottle that's next to you is probably protected by Perrier because the look of the bottle is trade dress. You can also protect by some foreign international laws that protect industrial designs.

So there's a body of law: trade secret, copyright, patent, trade dress, trademark, industrial design, that collectively and sometimes in parallel, can simultaneously protect the innovation, whatever it may be, from the relatively slight improvement to something as significant as an electric car or an electric light bulb.

There have been lots of significant inventions over the years. A lot of the push-pull that occurs that you see in the newspaper is, how significant does an innovation have to be to merit some degree of protection? Because the law wants to leave freedom of others to use public domain information to create and protect something really new and different, but it also wants to provide a certain incentive for people to still be motivated to actually do something.

That provisional that eventually is prosecuted in the patent office to include claims, those claims if allowed become a patentable invention. That gives you certain rights of exclusivity under U. S. law for up to 20 years from the date of filing, which for most software innovations is considered a pretty lengthy period of time. Copyright is even longer, and trademark law can protect indefinitely. So people like, say, Coca-Cola may be around for centuries. Literally, there have been trademarks that have existed for forever, like for 400 years, 500 years. There's certain Japanese beer companies that are still in existence, still using the same trademark, and have done so for, literally, four centuries.

Intellectual Property can last a long time. Lots of people like to give this example of if Coca-Cola's set of factories burned down overnight and they couldn't generate even an ounce of cola for a week or month, or however long it took. Banks would invest or loan against the trademark and goodwill that's symbolized by the Coca-Cola brand, and those factories would be rebuilt, because the formula, the Coca-Cola name, the distribution system, is all an intangible that embodies all the goodwill of the business. It's going to regenerate that business even if every tangible asset no longer existed and had to be replaced.

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