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Intellectual Property Law

What is Intellectual Property?

Intellectual property is personal property that is intangible. As all property is defined by laws, intellectual property is defined by intellectual property laws, which include patent, trademark, copyright, and trade secret laws.

What are Intellectual Property Rights?

Like all property rights, intellectual property rights are rights to prevent others from using, or otherwise taking advantage of your property, without your authorization.

Are Intellectual Property Rights Valuable?

Intellectual property is often among the most valuable property that a commercial enterprise owns.

How do I Obtain Intellectual Property Rights?

It depends. If the property is an invention, you must either obtain a patent or take appropriate steps to keep it a secret. If the property is a story or work of art, you have rights as soon as it is written down or otherwise recorded. If the property is a commercial symbol, you have rights as soon as you use it in the stream of commerce. In all cases, you will need to be mindful of certain legal requirements either to obtain, to maintain, or to maximize your rights.


Patent Drafting With Litigation In Mind

Patent applicants typically focus on the need to draft patent applications that pass muster in the United States Patent and Trademark Office. Many applicants understand that patent examination typically involves negotiating with the patent examiner to obtain meaningful patent claims. Often the patent examiner will find "prior art" that supports his or her argument that at least the broadest claims in the application are not patentable, and the applicant must either persuade the examiner to the contrary, amend the claims, or both. In this negotiating process, a well drafted patent specification can be critical. As a threshold requirement, the specification must describe a preferred example of the invention in such terms that a person of ordinary skill in the art of the invention can make and use it. However, in addition, the specification should also anticipate the potential need for claim amendments must include any explanation or description that will be necessary to support the amendments.

However, because patents are rarely involved in litigation (and even if they are, it is usually many years down the road), patent applicants are not as sensitive to the importance of the specification to claim interpretation in a lawsuit for patent infringement. They should be, since the ultimate objective of a patent is to provide enforceable rights. Many claim interpretation issues will not come up during examination because examiners are allowed to interpret claim language liberally, in a different way than the courts. Therefore, if the application is drafted with the sole objective of making it through the Patent Office, important drafting issues-both in the claims and in the specification--may be overlooked.

An accused infringer will do everything he or she can in court to show that the specification demands an interpretation of the claims by which the accused device (or method) cannot be considered to infringe the patent. Drafting a patent application without litigation in mind invites such attacks, which can be fatal to the case. Lessons learned in litigation can therefore be extremely valuable to attorneys who draft patent applications.

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