Why does IP matter to individuals? Intellectual Property (IP) may be the biggest asset a company has, particularly if the company is small or new. But you don’t have to be a company for you to be interested or concerned with IP. IP matters to everyone and it should matter to you!
You might be asking what IP really is. Anything that is written, visually created, and unique to an individual can meet the definition of IP. With a definition like that, it means that millions of individuals own more IP than they realize. IP is not a tangible asset like your house or your car but it is an intangible asset and these intangible assets must be protected just like your tangible assets are. Would you not buy an insurance policy to cover your tangible assets? Well, protecting IP is similar to your insurance policy for your house or your car.
According to the World Intellectual Property Organization (WIPO), “IP refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.” IP includes patents, trademarks, trade secrets and copyright. All are equally valuable since the ramifications of not protecting these assets can all be equally as serious.
What happens if you don’t protect these intangible assets? Let’s think about what can result from theft of your IP. If someone steals your IP and uses it in an illegal or immoral way, your reputation may be tarnished. If you have invented something that is unique or you have written something in your field of expertise that is valuable, then someone else is reaping some or all of the profits if they steal your assets. This leads to devaluation of your IP. If you should ever want to sell it, it is worth less and your profits again will be reduced.
The most important aspect of IP theft is the moral aspect. It is just plain wrong to steal something that does not belong to you. But in the real world, people take what is not theirs all of the time. And if you have not found a way to at least deter someone from taking your work, you can be assured that it will be copied and someone will use it to their benefit.
By protecting your IP you can prevent fakes from appearing and from reaping the benefits of your hard intellectual work. As you can see…not only does IP matter, but protecting it does too!
There is no federal trade secret law. There is federal law that protects patents, trademarks, and copyrights, but not trade secrets. Currently, to protect a trade secret, one has to depend on bringing a cause of action based only on state law. Federal law can be used by the US Attorney General, under Title 18 of the US Code, to bring a cause of action for Trade Secret Theft, but private parties must depend only on state law. The problem with state law is that it can differ widely, not only in the burdens placed on the plaintiffs and defendants, but also in the statute of limitations. For trade secret owners who operate in more than one state this means finding the state that would be most favorable to the action brought. The Amendment introduced by Senators Herb Kohl (D-Wisconsin) and Christopher Coon (D-Delaware) is an amendment to the Economic Espionage Act (“EEA”). The Amendment does not replace the current system of using state law since not all situations are covered; it simply adds new law that can be used, if applicable to the particular situation at hand. For this cause of action to be brought the plaintiff must show that misappropriation involves interstate commerce or export out of the US. Several types of relief can be sought in these cases including injunctive relief, damages, exemplary damages and reasonable royalties, as well as a seizure of property. A federal law would bring uniformity that is much-needed but the constitutionality of this under the Commerce Clause has been questioned. This may be a step in the right direction but a further step would be to provide for a private right of action for all types of trade secret misappropriation. Perhaps that law should also preempt state law. That would truly put it on the same footing as patents, trademarks and copyrights, and be a real reform in Intellectual Property Law.
Innovatio IP Ventures, LLC v. MEI-GSR Holdings LLC dba Grand Sierra Resort and Casino claims hotel use does and eventually may claim your use does too. In MEI-GSR, the focus is on 17 Innovatio-owned WLAN patents, asking in the suit’s Prayer for Relief that, “Grand Sierra and all related entities and their officers, agents, employees, representatives, servants, successors, assigns all person in active concert or participation with any of them, directly or indirectly, be preliminarily and permanently enjoined from using, or contributing or inducing the use of, any WLAN product, system or network that infringes any WLAN patent.” Chicago-based Innovatio IP Ventures, LLC, the plaintiff in the case, has been working with its legal team, Niro, Haller & Niro, to sue restaurant and coffee shop chains that provide Wi-Fi to customers. The firm has now moved to target some of the country’s largest hotel chains for offering Wi-Fi to their customers. Innovatio owns a number of Wi-Fi patents based around ideas in the late 90s and early 2000s by Robert Meier and the late Robert Mahany, who were developers at companies that Broadcom Corporation eventually purchased. These patents then made their way from Broadcom into the hands of Innovatio, who some refer to as “Patent Trolls.” The company seeks a fee of between $2,300 and $5,000 to avoid a patent infringement lawsuit. Since this fee is cheaper than hiring an attorney for representation, many are paying it. This practice of suing users of technology rather than manufacturers is particularly troubling. Will individual users be the next victims, after the coffee shops, supermarkets, casinos, and hotels?