Written by: Aaron Fishman, Andrew Jenkins, Sean Mellino
Intellectual property (IP) is often misunderstood, leading to costly mistakes for businesses and individuals alike. Many assume that once they create something, they automatically own the rights everywhere, or that patents and trademarks offer blanket protection. In reality, IP is a complex legal landscape governed by factors like value, ownership, jurisdiction and timing. Understanding these nuances is crucial when protecting assets, making business decisions or choosing legal counsel. Separating fact from fiction can mean the difference between securing an innovation or losing it.
In this article, we’ll review the most common IP misconceptions…
Myth #1: I haven’t seen my product on the market so I can get a patent for it.
Reality: Patents are examined against all public knowledge and must be novel and non-obvious over that knowledge. Just because you don’t see something on the market today doesn’t mean it hasn’t been tried before.
Myth #2: I have a patent on my product so I can freely use it.
Reality: Patents give you a right to exclude others from practicing the invention. However, the practice of your invention may infringe someone else’s patent/invention. Clearance is an important part of the patent process.
Myth #3: I have an international patent/trademark.
Reality: There’s no such thing. There are treaties and mechanisms for obtaining rights in many other countries outside of the US, but that protection must still be individually obtained.
Myth #4: I have a provisional patent application filed, so I have patent rights.
Reality: A provisional patent application provides a filing date for domestic/foreign priority, and the ability to state “patent pending,” but no formal patent rights.
Myth #5: I have a trademark registration and therefore can stop anyone from using an identical trademark no matter what.
Reality: The standard is a likelihood of confusion/confusingly similar. Therefore, a registered trademark does not necessarily protect against an identical mark in an unrelated industry (but it might).
Myth #6: To save cost, I can send a copy of my creation to myself by registered mail to establish a date of invention or authorship.
Reality: There is no legal value in doing this, and relying on it is very risky. Establishing rights under the copyright and patent laws can be very complex. Rights can easily be lost by taking the wrong action or failing to take the correct one at the right time.
Myth #7: Because I paid for someone to develop software or create content for my business, I own the IP associated with it and have the right to freely use it however I want.
Reality: In most cases, when you hire someone that is not a W-2 employee to create content or develop products, they own the copyrights and patent rights to their work. Without a separate agreement and an executed assignment of the IP rights, you could be prevented from making free use of their creation. They may also have a right to use it themselves or sell it to others.
Myth #8: If an image is found online, it must be free to use.
Reality: Many images found online are still protected by copyright and are not necessarily free to use. Many copyright registration owners hire third parties to search for unauthorized use of images online, which can result in a client having to pay significantly more to settle a copyright infringement claim than had it acquired or licensed the image correctly in the first place.
The singular focus of McDonald Hopkins Intellectual Property Department is to help you stay a step ahead. We provide powerful, cutting-edge legal and business expertise across all facets of intellectual property law. Our team of experienced intellectual property attorneys delivers a comprehensive range of innovative solutions and insightful industry expertise across a diverse group of technical disciplines. Every client’s needs and goals are different – but with our hands-on, in-depth approach you get a team of attorneys who understand your business and provide customized service designed to meet your needs.