Florida Intellectual Property Law Blog

Inventors, did you know some of your work is automatically protected upon creation? And that other work requires specific documentation to make sure nobody steals your intellectual property?

This commonly overlooked yet major detail is the difference between copyright and patent law.  As a Fort Lauderdale Patent Attorney, I am often asked by inventors to explain the differences between the two avenues of protection.   Understanding the subtle differences is the key to making sure only you profit from your hard work.

Here are the details…

Copyright Law

A Copyright is a set of exclusive rights granted to the creator of an original work (generally written, artistic, or intellectually produced material) including the right to copy, distribute and adapt the work.

Examples of copyright material are maps, books, paintings, photographs, music, movies and software.

To "copyright" material, you must simply place the copyright icon in front of a copyright statement and is adequate protection for copyright laws. You do not have to register copyrighted material with the U.S. Copyright Office. However, there are a number of very important advantages to registration and it is highly recommended that registration be obtained.

Patent Law

A Patent is a set of exclusive rights – such as the right to prevent others from making, using, selling, or distributing the invention without permission – granted by a governing body for a limited period of time.

Whereas copyrights apply to intellectual property, patents generally cover physical inventions. Because of this, patent laws require you to show the patent office how your invention is new, non-obvious and useful.

There are multiple ways to do this (and they vary from country to country, check with a local patent attorney), but almost every patent application includes…

• Who the inventor is
• Claims to what the invention does
• Drawings of the invention
• Specifications (how it works, how you invented it, etc.)

Do you need a copyright or a patent?

The answer to that question depends on what you plan to do with your invention. You can…

Sell or lease your patent to an existing company – The plus side to this approach is that you can avoid the hassles of running a business and simply cash in on your ideas.

…or…

Build a business around your patent and keep the lion's share of profits to yourself. If you decide to go down this route, make sure you take the proper steps to copyright all of the marketing materials required to sell your product to the public.

A patent will protect your invention. The copyright will protect your promotional materials, advertising, logos and even the musical jingles required to sell your invention to the public.

As a Florida patent attorney with 3 kids dragging me to Orlando regularly to visit Mickey, I found this AP News Alert of special interest.  The Shijingshan Amusement Park in Beijing, China, is having to explain why their round-eared mouse dancing with kids is not a knock off of Disney's Mickey Mouse according to an AP News Alert issued Wednesday, May 9, 2007.  According to the article, they also happen to have a "raven-haired" woman with seven men in elf suits.

Many see the Beijing theme park as evidence of rampant Chinese copying of U.S. intellectual property.  According to the article, the industry group - International Intellectual Property Alliance - estimated losses to Chinese piracy of books, films, music and software last year at $2.2 billion.  Beijing has penalties for violators of patents, trademarks, copyrights, and other intellectual property but infringement is allegedly growiing faster than enforcement.

MSN Money reports just days after Google owned YouTube announced that media companies will have no choice but to work with online sites such as theirs, Viacom has responded with a $1 billion lawsuit, alleging that the video-sharing site has shown 160,000 of its videos without permission.

Previously, after talks about a licensing deal failed, YouTube said it would remove 100,000 Viacom clips, including a number from Comedy Central shows.  Viacom and other big media players say that the problem with YouTube is that it will pull copyright clips only after its been asked to do so, putting the burden of policing content on the copyright holders and allowing users to re-post illegal copies as soon as they are removed.

As a Florida patent attorney and the author of the Florida Intellectual Property Law Blog, I often receive press releases and news submissions relating to Florida intellectual property matters.  I received the following press release today regarding another case by Florida intellectual property attorneys Silverman Santucci, LLP concerning alleged violations of Florida trade secret law:

For immediate release by PRceptions:

Tim Allen and Touchtone Pictures Sued Over Wild Hogs Rip-Off

One week before the national release of the much publicized John Travolta road comedy, Wild Hog's, Travolta's co-star, and Hollywood funny man, Tim Allen, and Disney's Touchtone Pictures, are being sued for theft of trade secrets under Florida law. The suit is still pending.

 If South Florida screen writers Steven Battaglia and Paul Danner get their way, and the Florida courts aprove, all money generated by the movie will be deposited in a trust fund pending the outcome of the lawsuit.

 The lawsuit claims that on two occasions, first in 2000 on the set of the Touchstone movie The Crew, and then again in 2002 on the set of another Touchstone release Big Trouble starring Tim Allen, Battaglia handed copies of his work to agents and representatives of Touchtone Pictures and to one of Tim Allen's personal assistants. Writer Steven Battaglia is a well known South Florida based hair dresser who works on movie sets in the area. Paul Danner is a author/screen writer with extensive credentials as well as being a police detective in South Florida.

The Florida Litigation Center reports that Stephen Michael Smith, 34, of Middleburg, Florida was recently sentenced to 18 months imprisonment by the Honorable Henry Lee Adams, Jr., United States District Judge in the Jacksonville Division of the Middle District of Florida, for distribution of pirated software over the internet, in violation of federal criminal copyright infringement laws.

Smith previously entered a guilty plea to a single count information on December 7, 2004, which charged him with infringement of a copyright.  In addition to the prison term, Smith was ordered to forfeit all computer equipment used in commission of the offense, and during his two years of supervised release, is to have no access to computers connected to the internet, absent his probation officer's permission.

Dan Rua, an experienced early-stage venture capital investor with a technology foundation and product design, development, and management experience, is the author of Florida Venture Blog.  The blog, described as "a running perspective on Florida's growing tech and venture community," provides valuable information for those individuals seeking to build companies by innovative means.

Currently a manager at Inflexion Fund, Mr, Rua's experience includes a partnership with Draper Atlantic, participation in finding and building thirty-two companies and managing funds totaling over $140 million, as well as teaching entrepreneruship and venture capital seminars at various educational institutions.

The Florida Venture Blog is considered one of, in not the, leading blogs on tech, entrepreneurship, and venture capital around Florida.

In addition to consulting a Florida Patent Attorney to assist with intellectual property issues, exploring ways in which to start up or enhance a business is definitely advisable.

An excellent resource for Miami and Florida intellectual property issues is the Counterfeit Blog, concentrating on anti-counterfeiting law and policing.  The blog is published by Miami, Florida Attorney Leora Herrman, who has been fighting counterfeiters for more than a decade.

Ms. Herrmann's legal expertise includes anti-counterfeiting, copyrights, licensing of trademarks,  patents and celebrity rights of publicity, U.S. and international trademark protection, and copyright law.  For interesting, informative, and insightful articles, this is definitely a site to check out at www.counterfeitblog.com.

 William Patry has authored a new 7 volume (no appendices), 5,830 page    treatise on copyright  that West just published. The treatise is unusual in a lot respects. It is an extremely comprehensive treatise on copyright and Mr. Patry believes it is one of  the largest legal treatises ever written by a single individual.

Mr. Patry has a diverse background, which is reflected in the treatise. He is presently Senior Copyright Counsel to Google Inc., but was also a full-time law professor at Cardozo Law School for 5 years, copyright counsel to the U.S. House of Representatives (3 and a half years), a Policy Planning Advisor to the Register of Copyrights (4 and a half years), and he spent 12 years in private practice litigating copyright cases. The treatise reflects all these experiences and has a foreword by Justice O'Connor and an endorsement by former Solictor General of the United States Walter Dellinger.

Todd Mayover, in-house intellectual property counsel for a medical device company in Florida, has an interesting post at the IPCounsel Blog entitled Intellectual Property Mediation:

"Regardless of the situation, without suggesting mediation, it will never happen. The obvious risk is that other party(s) may say no, but this would have no effect on the actual case at hand. At least the parties would know where they stand."

That being said, it is important to note that the risks of not mediating vary greatly depending upon which milestones have already passed in the litigation.

According to an article in Business Wire, publishing statistics compiled by Bowker list Florida as third, behind California and Texas as the most popular fictional state setting in the United States released in novels today.

When most people think of creative expression, they naturally envision the work of individual authors, artists, poets, singers, and musicians. In fact, these works only comprise the classic examples of copyrightable subject matter. Less obvious, however, is the multitude of everyday business components that lend themselves to copyright protection.

In today's competitive business environment, the potential valuation of a company lies not just in its physical assets but is based to a great extent on its ability to develop and capitalize upon a steady stream of new ideas and creativity. In this regard, important creative components of a business including sales brochures, advertising, solicitation letters and emails, instruction manuals, architectural and engineering drawings, pictures, photographs, paintings, graphical images, web-site designs, computer software, music, and sound recordings can all be protected under copyright law.

A patent has been awarded to Florida Atlantic University Professor Stuart Galup for a new software-based system for assisting local government departments in overseeing guardianship cases according to an article in the Boca Raton News.

According to the article, this was the first patent associated with Florida Atlantic University to originate with the College of Business. The fact that the article points this out as being significant shows that patents are still seen by many as being in the exclusive realm of engineering colleges not business schools. A number of patents for software-based innovations and business methods have been granted to Florida patent holders recently.

I am frequently asked by inventors to explain how patents differ from trademarks and from copyrights. They are fundamentally different. Lets take a quick look at trademarks and copyrights now.

First, lets look briefly at trademarks. A trademark can be a word, logo, design, or even a combination of these. A service mark is similar to a trademark except that it is used to express the origin of services.