PATENTS AND TRADEMARKS

3 Lessons From Apple's Billion-Dollar Win

Here's what you can learn from Apple's patent victory over Samsung.
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Recently, Apple won a billion-dollar infringement case alleging rival smartphone manufacturer Samsung had infringed upon several of Apple's registered U.S. patents. At stake was Samsung's ability to use certain technology in its tablet and smartphone devices that Apple claimed was protected under various patents owned by the technology giant. The jury decided in Apple's favor, awarding damages in the approximate amount of $1 billion. So what can you learn about Samsung's misfortunes and Apple's continued riches? Plenty.

In business, we often look for shortcuts to get a product to market faster and more cost effectively. Perhaps it is "borrowing" content from another website to include in yours. Maybe it is adopting a name that somewhat sounds like a famous competitor's but not exactly. No matter what the shortcut may be, if you get caught, you could pay a hefty price. Just ask Samsung.

1. Know What Can Be Protected

As a threshold issue, the only way that you can respect another's intellectual property is to have an understanding of what can be protected. In general, there are three main forms of intellectual property: patents, trademarks, and copyrights.

  • Patents - A patent is a grant of property rights by the U.S. government through the U.S. Patent and Trademark Office. The patent grant excludes others from making, using, or selling an invention in the United States that receives patent protection (e.g., a new and innovative design for a toothbrush, mechanical part, or otherwise).
  • Trademarks - A trademark includes any word, name, symbol, or device, or any combination used, or intended to be used, in commerce to identify and distinguish the goods or services of one manufacturer or seller from goods manufactured or sold by others. In short, a trademark is a brand name. It can be your company's name (e.g., Nike) or its main advertising slogan (e.g., "Just Do It").
  • Copyrights - Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. Copyrightable works include literary works (e.g., books, articles), musical works (e.g., music, lyrics), dramatic works (e.g., plays, screenplays, scripts), pictorial, graphic, and sculptural works (e.g., works of art, statutes, AND websites), motion pictures and other audiovisual works (e.g., movies, television broadcasts), sound recordings (e.g., albums, CDs, etc.), and even architectural works (e.g., building designs and plans).

2. Protect Your Property

Now that you know what can be protected, protect yours! In the United States, patents and trademarks are registered with the U.S. Patent and Trademark Office. Copyrights are registered with the U.S. Copyright Office, a division of the Library of Congress.

Although rights may be acquired in copyrighted works and trademarks without registration, registration of all three forms of intellectual property is typically advisable. In all instances, registration of your intellectual property affords you or your business additional rights that holders of unregistered intellectual property do not receive. Moreover, registrations act as notice to would-be infringers of your rights that you own the same and are powerful deterrents against the copying of your valuable rights. Given the relatively little cost involved, always register your patents, trademarks, and copyrights.

3. Respect Others' Rights

Do not infringe upon the rights of others. Innocent or not, it can be very costly to your business; just ask Samsung.

From a trademark perspective, before you roll out that ad campaign or launch that product, make sure that the brand name you intend to use is available. Conduct research or have someone else who is skilled in such matters do so to ensure the brand is clear before you launch. And if you receive notice of infringement, don't just ignore it. Let the party know you respect all others' intellectual property rights and conduct an investigation as to whether you could possibly be infringing.

In regard to copyrights, do not copy content from other webpages or images to which you do not have rights. Do not repost articles of others without permission. In short, if you are going to use anything written or created by another, make sure you have the right to do so. You would be surprised at how much out there is protected by U.S. copyright laws. So when in doubt, don't copy; create your own.

In regard to patents, it is a little more difficult. Respecting others' patent rights is challenging, as the patents themselves are written in a complex framework of claims and exclusions. But if you are using technology in your business, it is best to consult a patent attorney to determine what, if anything, can be done to insulate you against the fate of Samsung. Have a detailed patent search conducted, especially if you do not retain a patent on the technology being placed into your devices.

Last updated: Sep 6, 2012

MATTHEW SWYERS | Columnist | Founder, The Trademark Company

Matthew Swyers is the founder of The Trademark Company, a Web-based law firm specializing in protecting the trademark rights of small to medium-size businesses. The company is ranked No. 138 on the 2011 Inc. 500.

The opinions expressed here by Inc.com columnists are their own, not those of Inc.com.



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