Protecting Intellectual Property From Theft

Stephen Dravis of The Saratoga Business Journal Ways Exist to Safeguard Ideas And Information A good idea only does any good if no one else can claim it as their own. Fortunately for inventors, writers and marketers, there are protections in both federal and international law to protect their intellectual property from theft. Some businesspeople are better than others at availing themselves of those protections, according to Arlen L. Olsen, managing partner of Saratoga Springs' Schmeiser, Olsen and Watts LLP. "I think you get a broad spectrum of awareness," Olsen said. "The individual, the start-up company, sometimes has no idea what they have to do to protect themselves. Large companies have their own intellectual property departments. "Most small businesses do not have a background in intellectual property. But we've encountered some who, right from the start-up are seeking a patent to lock in their property rights." Patents are one of three basic classes of intellectual property protection. The others are copyrights, which protect "original works of authorship," and trademarks or service marks, which cover "any word, name, symbol or device, or any combination used, or intended to be used, in commerce to identify and distinguish" the good or services manufactured or provided by an individual or business. Some protections are easier to establish than others. You can, for example, usually copyright your literary dramatic, artistic or academic work by simply marking it with the letter "C" in a circle and identifying yourself as the creator. Likewise with a trademark or service mark, which can be created by simply using the "TM" or "SM" symbols on the logo or business name you wish to protect. But there are advantages to taking the next step and filing for federal copyright, trademark or service mark protection, said Brett Hutton, an associate with Albany law firm Heslin Rothenberg Farley and Mesiti P.C. "As soon as you put pen to paper for a copyright or as soon as you identify yourself as the source of a product or service, you have protection," Hutton said. "But the big advantage of applying for federal registration is that you can go to federal court... and you could potentially preclude people from using that mark throughout the United States." Trademarks and service marks can get complicated when a business operates under a given name in one city, say, Saratoga Springs while a different business uses the same name in a different part of the country or even a different part of the state. "If a restaurant, for example, in Rochester has the same name, they could potentially coexist," Hutton said. "But if that restaurant is used by travelers within the state or from outside the state, they would think there is some kind of affiliation." If that second restaurant is in California, it is less likely that confusion could arise -- unless one of the restaurateurs decides to try to franchise the operations. Then a federal trademark (signified by the letter "R" with a circle around it) could preclude the out-of-state business from locating one of its franchises in the Saratoga Springs market. One priority when establishing a trademark or service mark is to make sure that it's unique as you think it is, and that is one area where an intellectual property attorney can help. "There's a risk if you use a mark that's been used by someone else or is previously registered," Hutton said. "A year or two later, when someone fids out about you, they could make you change your name, and there goes your advertising money or the time you've spent developing goodwill for that mark or logo in the community. "We typically do searches for federally registered trademarks, an Internet search, a domain search and a common law search through phone books from the major markets around the country." A federal copyright is probably the least expensive of the three protections, Hutton said. It has a $30 nonrefundable application fee and gives the author protection for the term of his or her life and the estate protection for 70 years after the author's death, according to the U.S. Copyright Office Web site, www.copyright.gov. "The biggest benefit (of a federal copyright) is that you can go into federal court," Hutton said. "The other benefit is the damages you can collect. You can get actual damages without federal registration. But with it, you can go for statutory damages." Then-U.S. Patent Office Commissioner Charles H. Duell is remembered for his infamous 1899 pronouncement that, "everything that can be invented has been invented." More than 100 years later, the office Duell administered is still going strong. "We tend to grow steadily every year, "Olsen said about the patents sought by Schmeiser, Olsen & Watts clients. "The last year or so there was a pretty good growth curve. I imagine that even in the early 2000s with the 'dot-coms' going under, we didn't notice any sharp decrease in the amount of work we were doing. We're still seeing a growth across the board in all industries." Many of those clients are operating in a global marketplace, and Olsen said his firm regularly works attorneys in a number of countries in the Far East and Europe to resolve international issues. "When you file for a U.S. patent, you have a year to file internationally," Olsen said. "There are treaties in place to allow you to do that. Just by filing a U.S. patent, you reserve the right to file in countries around the world, you have a year in which to do that." The traditional reason to patent an invention is to make sure no one else attempts to duplicate your invention and sell their own version. "You're protecting a significant investment of time and money," Hutton said. "Drug companies for example, spend millions and millions of dollars on (research and development). If they can't get an exclusive right to sell that drug to the market for a significant period of time, they'll never recapture their R&D costs. "You know that as soon as that drug is out there, other companies will reverse engineer it and produce their own version." Large or medium sized companies - actually any firm that employs people to develop a product - have to guard against employees developing or improving a product on company time and then breaking away to market that invention on their own. "If a company isn't savvy to that, they're going to lose the intellectual capital they've invested," Olsen said. "It's going to go away in the form of a competitor sprouting out. "The way to address that is to have employees sign contracts that will give the employer the rights to any ideas they develop on company time. The next step is to file for patent applications or copyrights on the things an employee develops." Olsen said if an employee has a question about whether his or her ideas belong to the employer or the individual, it's best to work out those disputes openly before leaving the company and starting a new business. That is another area where intellectual property attorneys can help businesspeople navigate the more arcane aspects of the law. The other thing people can do to begin protecting their rights is consult the information available online, either at the copyright Web site, www.copyright.gov or the Patent Office Web site, www.uspto.gov, Hutton said. need a loan fast with bad credit bad credit personal loans for