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Intellectual Property Law

Any kind of property that results from the fruits of mental labor is called "intellectual property." Intellectual property law refers to the rights and protections for owners of intellectual property. Those rights and protections are based on trademark and copyright laws, state trade secret laws and federal patent. Intellectual property law spans all sectors and industries from the music business to emerging technologies.

IP attorneys can include registered patent attorneys with experience in patent application prosecution, attorneys with experience in patent infringement litigation, attorneys with experience in trademark law, and attorneys with experience in copyright law.

Attorneys focused on intellectual property law deal with the rules for securing and enforcing legal rights to artistic works, designs, and intentions. IP Attorneys can help you protect a great idea, business name or logo. Whether you need help for a copyright, patent or trademark in order to safeguard your intellectual property, finding the right IP attorney is important. IP attorneys also help you create nondisclosure agreements with your vendors and employees to protect trade secrets.

The four basic parts of intellectual property law include patents, trademarks, trade secrets and copyrights.

  • Patent Lawyer - a patent attorney can help you apply for a patent through the U.S. Patent and Trademark Office (USPTO); 
  • Trademark Lawyer - a trademark attorney can help you file for trademark or service mark protection for your business name, symbols and logos;
  • Trade Secret Lawyer - an attorney can help you create nondisclosure agreements with your vendors and employees to protect trade secrets;
  • Copyright Lawyer - attorneys can help you learn more about the process of copyrighting the content from your book, publication, movie, digital work, or musical recording.

Frequently Asked Questions about Intellectual Property

What is Intellectual Property Law?

Intellectual property laws (often called "IP law") is the laws that apply to the creation of the intellect for which a monopoly is assigned to designated owners by law. Examples of things that can be protected intellectual property can include:

  • artistic works including music and literature;
  • discoveries;
  • inventions;
  • words;
  • phrases;
  • symbols; and
  • designs.

Attorneys as a Board Certified Specialist in Intellectual Property Law

The State of Florida Bar, through the Florida Board of Legal Specialization and Education allows attorneys to become board certified as a specialist in Intellectual Property Law. The standards for board certification in intellectual property law are set out in Rule 6-26.1 which provides that the “purpose of the standards is to identify those lawyers who practice intellectual property law and have the special knowledge, skills, and proficiency, as well as the character, ethics, and reputation for professionalism, to be properly identified to the public as board certified in intellectual property law.”

Looking at board certification is one important way to begin your search for the best intellectual property law attorney for your case.

Organizations for IP Attorneys

The following organizations serve attorneys focused in intellectual property law including:

  • ABA's Section of Intellectual Property Law - Visit the website of the American Bar Association to learn more about its Section of Intellectual Property Law. Created in 1894, the ABA-IPL has advanced the fair and just administration and development of the full spectrum of IP law within the profession, before policymakers and with the public. ABA-IPL has five action groups including the Young Lawyer Action Group (YLAG); Women in IP Law Action Group (WIP); Law Student Action Group (LSAG); International Associates Action Group (IAAG); and Diversity Action Group (DAG). 
  • American Intellectual Property Law Association - Visit the website of the AIPLA which serves as an innovator and advocate in the field of IP law through its commitment to education, outreach, and member service. With nearly 14,000 members, the American Intellectual Property Law Association (IPLA) is a national bar association that was formed in 1897. This trusted organization is constituted primarily of IP lawyers in private and corporate practice, in government service, and in the academic community. Also known as the known now as the AIPPI-US Division, the AIPLA is also the US national group of the Global IP Association AIPPI.

Definitions Related to Copyright Law

The primary federal copyright law is contained in Title 17 of the United States Code. Generally, the practices that the copyright law is concerned with involve, but are not limited to the protection of the transfer, incensing, and registration of copyrighted works.

The term “copyright law” is defined to cover the practice of law dealing with the protection of the works of the human intellect (literature, music, art, computer programs, etc.) under the copyright laws of the United States, including: ownership; exclusive rights; duration; subject matter; registration; formalities; transfers and licensing, including the rights and obligations of parties, antitrust and misuse constraints, international licensing considerations, appropriate terms and conditions in licensing contracts. 

Copyright law also refers to contested matters relating to claims of infringement of copyrights and to disputes regarding the authorship, ownership, licensing, and transfer of copyrighted works, including infringement actions and defenses, remedies, jurisdiction and venue, jury considerations.

Copyright law attorneys deal with federal preemption of state law; international aspects of copyright, including the Berne convention and other treaties on copyright and related subjects; recent amendments to copyright law such as the Digital Millennium Copyright Act; and the Copyright Acts of 1909 and 1976, as amended.

Definitions Related to Trademark Law

The term “trademark law” covers the practice of law dealing with all aspects of the Trademark Act of 1946 (the “Lanham Act”), as amended, 15 U.S.C. §§ 1051-1127, Trademark Counterfeiting Act of 1984, as amended, 18 U.S.C. § 2320, Tariff Act of 1930, as amended, 19 U.S.C. §§ 1337 and 1526, Chapter 495 of the Florida Statutes, as amended (the “Florida Trademark Law”), and common law principles, including: advising clients as to ownership, registration, transfer, validity, dilution, enforceability, and infringement of trademarks in the state of Florida, the United States and internationally; representing clients in proceedings before the USPTO and the Florida Department of State; and representing clients in proceedings in federal or state courts, or in arbitration, relating to the ownership, registration, licensing, transfer, validity, dilution, enforcement, and infringement of trademarks.

A “trademark” is defined to include trademarks, service marks, certification marks, and collective marks. A “trademark” is further defined under state law and might also include trade dress as that term is used in the Restatement Third, Unfair Competition, Section 16, and domain names as that term is used in the Lanham Act, 15 U.S.C. § 1125(d).

Definitions Related to Patent Law

The grant of a patent by the USPTO carries with it the presumption of validity, including compliance with federal statutes.

Invalidity is a defense to a claim for patent infringement and may be based on a number of factors, including: anticipation; obviousness; derivation; failure to disclose “best mode”; estoppel and laches; ineligible subject matter; lack of utility or operability; lack of enabling disclosure; claim indefiniteness; double patenting; inequitable conduct; violation of antitrust law; and non-infringement.

The term “patent” is a governmental grant derived from the United States Constitution to encourage innovation and a form of protected personal property under federal statute set forth in title 35 of the United States Code that guarantees the holder of a U.S. patent a right to exclude others from making, using, offering to sell, selling, or importing an invention for a statutory period of years.

The term “patent matters” consist of the areas of knowledge required of attorneys registered to practice before the USPTO, including: rules, practice, and procedure; understanding how to draft claims and the ability to properly draft claims; knowledge about preparation and prosecution of patent applications based on education in and practical experience in engineering or science; understanding the application of patent laws to that endeavor; preparation of patentability opinions; filing and prosecuting patent applications, interferences, and re-issuances; preparing opinions concerning the validity and/or infringement of patents; prosecuting patent applications at the USPTO and in foreign jurisdictions; and the re-examination of patents.

The term “patent application prosecution” includes the practice of law dealing with patent rights, and covers all aspects of the following:
Representations clients in proceedings before the USPTO, 37 C.F.R. §§ 10.1 – 10.170, as amended;

  • the Register of Government Interests in Patents, 37 C.F.R. § 3.58, as amended;
  • the Secrecy of Certain Inventions and Licenses to Export and File Application in Foreign Countries, 37 C.F.R. §§ 5.1 – 5.33, as amended;
  • the Assignment, Recording and Rights of Assignee, 37 C.F.R. §§ 3.1 – 3.85, as amended;
  • the Manual of Patent Examining Procedure (MPEP), the Patent Cooperation Treaty (as modified by any later court decisions or Official Gazette notices);
  • the American Inventors Protection Act of 1999, United States Patent and Trademark Office (USPTO) rules of practice;
  • the Rules of Practice in Patent Cases, 37 C.F.R. §§ 1.1 – 1.997, as amended; and
  • the U. S. Patent Statutes, 35 U.S.C. §§ 1-376, as amended.

The term “patent infringement litigation” covers the practice of substantive law, evidence, and procedure dealing with the litigation of patents in federal district courts and appeals to the federal circuit of the United States of America, and includes: Service of Process, 37 C.F.R. §§ 15.1 – 15.3; and Testimony of Employees and the Production of Documents in Legal Proceedings, 37 C.F.R. §§ 15.11 – 15.18. Infringement of a patent is a tort giving rise to a federal cause of action for a form of trespass.

This article was last updated on Friday, June 2, 2017.