Virtually every business creates intellectual properties incidental to the development and implementation of its competitive strategies. Some properties may relate to new products, chemical compositions, or manufacturing processes that are protectable under the patent laws. Product names or other indicia that help to identify a product or service may be protectable under the trademark laws. Still other developments, such as blueprints, software, and textual or graphic materials, may be protectable under the copyright laws. The purpose of intellectual property protection is to provide the owner with the exclusive right to the intellectual property.
In the case of patents, the patent owner is granted the right to prevent others from making, using or selling the invention as the invention is defined in the issued patent. Registered trademarks and common law trademark rights give the owner the right to prevent others from using confusingly similar trademarks, taking into account such factors as the similarities of the products, distribution channels, and target consumers. The copyright laws prevent others from using a work as the basis for preparing another work, even if in another medium.
Attempting to protect all intellectual property developments is generally not a sound commercial strategy, even if protection is obtainable. Instead, the client, with assistance of counsel, must determine if the cost to acquire, maintain and enforce the exclusive right is justified by the commercial advantage that the exclusivity provides. In making this determination, factors such as market potential and profitability of the product, alternatives available to the competition, and likely product longevity, must be considered.
In the final analysis, intellectual property is a tool that can be used by a company to gain a competitive advantage, or used by others to the company's considerable financial detriment. As business becomes increasingly competitive as a result of new technologies, the ability of a company to use this tool to its advantage becomes increasingly critical to growth and profitability.