Webinar Recap – mHealth Intellectual Property

Posted 8.13.12 by

Our Tuesday @ 2pm webinar guest last week was Chris Mitchell, Esq. at Dickinson Wright and expert in Intellectual Property Law. Chris gave a great high-level overview of the various protections available including patents, trademarks, and copyright. The following are some takeaways. For the full recorded webinar, click mHealth Intellectual Property 101.

Copyright protects outright duplication, but patents offer broader protection
Patents can be the most costly to obtain, but most thorough form of IP protection. For while copyright can protect against someone copying the way an idea or concept is expressed, patent can protect an inventive concept in multiple forms of expression. So, if company B copies company A’s mobile app code, then copyright protection would apply. But if company B just creates an app that does the same thing as company A’s app using code they developed themselves, then copyright does not apply. But if the app were patented, then company B could be infringing the patent even if their code was different, and even if they had no idea they were trespassing on company A’s patent rights.

Timing is everything
The timing of filing for a patent is critical. In the US, you may have up to a year after making an offer for sale or public disclosure of your invention before losing the right to file a patentapplication for the disclosed/offered invention. However, that doesn’t apply in many other countries, where a public disclosure before filing a patent application will prevent the application from being filed. To complicate matters, as of March 16th, 2013, patents will be awarded to the first inventor to file an application for a given invention, with only limited exception being provided for public disclosures made within a year of filing a patent application. One can imagine that having a few months to test market response and adapt a product in that first year before patent filing is due could be a significant business advantage. Now, more than ever, the changes to the law will really force the hand of companies to make a strong commitment to protecting their IP before the horse leave the proverbial barn. Will this present a significant barrier to emerging technologies and companies?

Hurry up … and wait!
Getting a patent granted, and even registering a trademark, can take a long time (a very long time – at least several years — where patents are concerned). In an industry where technologies are changing rapidly, this can present a tough decision for a company – do they invest in substantive IP protection to protect long-term future interests, or leverage those resources to keep ahead of the accelerating competitive technologies?

IP Protection is Territorial
Unregistered trademarks have a narrow territory of protection which generally extends to the limited of your company’s market reach. Registering your trademark extends this territory. Patent protection is nationwide, but stops at international borders. For the many companies who are participating in the broader global economy, patent protection means multiple filing in multiple countries.

Patents protect innovation
Patents are meant to reward and protect innovation. You can’t patent what’s been done before, nor just patent the natural next step that would be obvious to the average Joe – you have to something both novel and non-obvious to be patent worthy.

Who owns rights? Company, employee, contractor? Check your contract!
By default, copyright belongs to the author, and patent rights belong to the inventor. If you are outsourcing development of a product, the contractor may own rights to the material unless otherwise agreed. Even in the case of the run-of-the-mill employer/employee relationship, ownership rights may belong to the employee or, at best, be shared.

But, don’t take our word for it. If you are interested in protecting your intellectual property, be sure to contact an experienced IP attorney for qualified legal advice.

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