Louisianans enjoy an abundance of economic opportunities across a wide range of technologies and business. The entertainment industry, including film, digital media, and live performances has blossomed in our state to a point where we are now internationally recognized as a production location for these endeavors. Software development, particularly in the financial industry, and healthcare information technology, process engineering, and the digital interactive markets, have all seen amazing growth. These are welcome additions to our more traditional industries, such as oil and gas exploration and production, chemical manufacturing, and agricultural operations.
Common to all of these opportunities are underlying rights in intellectual property (IP) developed by creative individuals, including patents, trademarks, and copyrights. For those ventures to realize commercial success, securing the proper legal protection for IP can often be critical. While competition between businesses is generally good for consumers, and often leads to the production of better products and services and greater choice, a balance must be struck that preserves the hard-earned rewards accruing from innovation. In appropriate cases, these forms of IP can be asserted against infringers to enforce exclusive rights in ideas, names, and content. They can also be used to generate additional revenue through licensing, joint development, and other collaborations.
Patents should be sought for devices, processes, and compounds to protect their structure and function, and sometimes even their ornamental design elements. If a utility patent is granted, the rights endure for up to 20 years from the original filing date of the application. However, patents are not renewable, and the ideas become available to the public upon expiration of the patent term. As inventions evolve over time, multiple continuing applications may be filed (assuming certain co-pendency requirements) to protect improved features, effectively extending the life of a patent portfolio for much longer than the original term.
Trademark registrations, preferably at the federal level, should be obtained for any names, slogans, logos, and other marks which are used to identify goods and services placed into interstate commerce. Such registrations are enforceable for 10 years from the grant date, as long as a continuing use declaration is filed after the first five years. Unlike patents, trademark registrations can be renewed for additional 10-year terms, provided that actual use of the mark can be shown.
Copyright protection is available for literary content, software development, works of art, digital video and audio works, and a wide range of other creative expression. Although registration of copyrights is no longer a prerequisite to the existence of a copyright, applying for and obtaining a registration is typically required to enforce such rights in federal courts. Registration also entitles the owner to powerful options in recovering damages, profits, and attorney fees if infringement is found.
As you can see, these forms of IP, properly obtained and managed, can be leveraged to retain a competitive advantage, strengthen a negotiation position in transactions, and generate additional income. Regardless of what Louisiana industry you’re in, exploring possible IP protection for your inventive efforts should be undertaken early and often.
About the Author: Warner J. Delaune is a Baton Rouge-based attorney in the Intellectual Property Group at Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, where he focuses his practice on the prosecution of patent applications and counseling clients in transactional matters involving intellectual property. He may be reached by email at wdelaune@bakerdonelson.com.