A rapidly growing ecosystem of companies is looking at how blockchain technology can be used to improve the administration and enforcement of IP rights across multiple jurisdictions. The Blockchain and Intellectual Property Law field is numerous and could impact both the governance of IP rights and the IP industry itself.
Blockchain for registered and unregistered rights could arguably be used to provide proof of creation, existence, ownership and/or first use, to register IP rights, to facilitate the administration and management of IP rights on a global scale, thereby potentially contributing to the emergence of “global IP chains” and to enforce IP rights and fight counterfeits in a more efficient way.
While applications of blockchain technology could help to alleviate some of the challenges that rights-holders face, the technology will not solve all issues. But one thing is certain: the disruptive nature of the technology, the multiplicity of potential applications emerging, and their practical and legal implications deserve the attention of regulators and legislators.
There are four primary types of IP protection: patents, trademarks, copyrights, and trade secrets. Therefore, an IP protection strategy must include an understanding of the scope of each type of protection and how it can be applied to a specific innovation. Clients seeking the assistance of an IP attorney are usually able to identify the “property” that they would like to protect.
A patent can protect a machine, process, or article of manufacture. A U.S. patent holder has the right to exclude all others in the United States from making, using, selling, offering for sale, importing, and, in some cases exporting, implementations of their claimed invention for the duration of the patent (typically, approximately 20 years). This is an exceptionally powerful right, granted by the U.S. government that is given to the inventor in exchange for the public disclosure of their invention. While patents are a flexible and powerful form of IP, they are also usually the most expensive and most difficult to obtain due to the fact that a relatively protracted application process is required. Owners of pending patent applications may mark commercial embodiments of those inventions as “patent pending,” which can provide some competitive advantages against potential copiers during the patent process.
Copyright exists in any original work of authorship (e.g., literary, musical, architectural, and pictorial works) that has been fixed in a tangible medium (e.g., a book, a photograph, a compact disc, or a digital memory device). The holder of a copyright has the exclusive right to reproduce, distribute, perform, display, prepare derivatives of, and digitally transmit the work, and may also mark works with a copyright notice.
Computer programs and databases are considered literary works as it relates to copyright laws. While it is useful to keep and maintain copyrights in software source code and database schema and contents, especially since there is little effort needed to obtain the copyright in the first place (e.g., original authorship and a fixed medium), the protection provided by a copyright is somewhat limited and primarily intended to prevent true piracy as opposed to mere imitation.
A trademark is a name, word, phrase, logo, symbol, design, image, color, or combination thereof that is used to identify the source of goods or services bearing the mark. A trademark holder has an exclusive right to mark goods and services with the mark in order to put consumers on notice of their source, and the duration of a trademark that is continuously maintained and used by the mark holder is indefinite.
There are no significant software-specific considerations with trademarks. Trademarks should be considered for software application names or logos that an owner would like to distinguish from other applications.
4. Trade Secrets
A trade secret is: (1) any information (e.g., a process, formula, design, instrument, pattern, method, or compilation of information), (2) that the holder has taken reasonable measures to keep secret and (3) that derives independent economic value from being neither publicly known nor readily ascertainable by proper means by those who can make economic use of it.
A software application should be evaluated early in its development to determine the extent to which it can be maintained as a trade secret. Where important software features are embodied in user-facing or clientside processes, relying upon patent protection may be the better option. Where features or databases containing important information are kept server-side, maintaining them with a high level of security, encryption, and access control may allow them to be kept as trade secrets indefinitely.
With the current influx of investment in blockchain technology, growing popularity across a wide variety of industries, and the recent upsurge of blockchain and intellectual property law, this space is poised for significant growth in the years to come. Many have likened Blockchain’s revolution to the early days of the internet, poised to be the very next iteration of disruptive technology. There are many firms looking to be at the forefront of adopting blockchain, from startups to Fortune 500 giants, and with the right investments in intellectual property, as well as smart partnerships, these organizations can position themselves for success in the promising new world of blockchain.
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