“Intellectual property is an extremely important and valuable asset that is often overlooked or ignored in the construction industry.” So said Brian Hickey and Edward Benes at the ABA Forum on the Construction Industry’s annual meeting in April in New Orleans.
In their joint presentation entitled When the Colors Run Together: Recent Development in the Intellectual Property Aspects of Construction, Brian and Ed highlighted the risks and liabilities associated with the four basic types of intellectual property: (1) copyrights; (2) trademarks, service marks, and trade dress; (3) patents; and (4) trade secrets. Here is why intellectual property finds its way onto our radar screen at Best Practices:
“Economic realities and environmental initiatives will drive a search for streamlined designs, new systems, and innovative materials. Industry leaders will develop standard components and process that can achieve savings in time and money. To the extent that some of these new products, methods, and designs may be protected through copyrighted drawings, trademarks, patents, trade secrets or other means, the inventors and creators will endeavor to do so.”
Brian and Ed did a great job explaining in their presentation how intellectual property relates to construction, architecture and engineering. In simple terms: Construction begins with ideas. Ideas take the form of an expression. Expressions are copied, stored, distributed. Those expressions are edited and improved. You see where this is going … the expressions become subject to protection. These authors packaged this broad issue—intellectual property in the construction industry—in such as way as to understand the risks and walk away with some good pointers, including the following:
- Allocate ownership of copyrights through contractual provisions
- Understand the “thorny” collaborative design issues that naturally arise with multiple parties
- Appreciate the risks of “copying” information
- Evaluate the need for registration of your own information
I truly appreciate Bryan and Ed’s hard work to bring to light intellectual property for all those hardhat construction lawyers, owners, developers, architects, engineers, contractors and suppliers.
[Note: Unfortunately, I was unable to attend their presentation because I was speaking on The Green Explosion: The Legislative Impact of Alternative Energy, Climate Change and Sustainability on the Construction Industry. However, their written paper was thorough and easy-to-read.]