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Knowing the part intellectual property plays in driving creativity will put you one step ahead of the competition, says Mark Simpson of Saul Ewing Arnstein & Lehr.
Young professionals interested in creative endeavours invariably face the “art versus revenue” conundrum when they begin creating intellectual property (IP). This internal struggle they may feel involves, on the one hand, the idealistic and laudable desire to give away the results of creative efforts for the betterment of mankind, and on the other hand, the practical need to make a living, pay bills, and have the financing available to create higher quality, more innovative solutions to problems.
IP is loosely defined as creations of the mind that are not always in a tangible form, at least not at their inception. Instead, they all begin with an idea—inventions, works of visual or literary art, original music, creative names and logos used in commerce, designs, and the like.
The theft of IP (infringing acts by others), whether it be manufacturing or selling a product that infringes a patent (patent infringement), marketing a product using a confusingly similar brand or logo (trademark infringement), copying the creative work created by another (copyright infringement), or stealing the proprietary information of a company (theft of trade secrets), reduces the value of that property and can inhibit entrepreneurs, artists, and companies from expending the time, effort, and funds to solve problems and improve the state of the art.
In the US, these thefts are in direct conflict with the ideals expressed by the drafters of the US Constitution: “The Congress shall have power…. [t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” (article 1, section 8 of the US Constitution)
Young people today are facing existential threats on multiple fronts. Climate change threatens the very existence of the earth. A global pandemic, wars, drought, food shortages—all of these add a sense of urgency and a survival element to the art versus revenue conflict mentioned above.
And yet as is always the case, adversity creates new ideas, new advancements, and new opportunities, and the generation currently entering the workforce will face the challenge head-on and find new, creative, and innovative ways to push back and survive and come out on top.
Urgent environmental issues will drive the need for the development of alternative fuel sources, changes in transportation and the infrastructure that supports it, and changes directed to our global food supply and agriculture affected by droughts and changes in weather patterns.
The COVID-19 pandemic has demonstrated the need for new advancements in healthcare delivery, remedies, and the ability to quickly develop, test, and deploy vaccines. And all of this has drastically changed the manner in which future employees, employers, and entrepreneurs will operate to support themselves, their families, and the economies where they live and work.
So what should young people embarking on solving these problems know about using the tools of IP to succeed?
1. Familiarise yourself with the various types of IP
While the solutions to the current problems of the world will be new, the ways to protect these innovations remain essentially the same as they have been for years.
The basic tools available for protecting IP include patents, trademarks, copyrights and trade secrets. As mentioned above, each of these avenues of protection stems from a thought, an idea, a concept, and thus those working in creative fields of any kind should always consider whether there may be something protectable in the creations they develop.
Patents protect inventions and aesthetic designs of products, trademarks protect branding and reputation, copyrights protect creative works (literary works including computer programs, artistic works, graphic designs, etc), and trade secrets protect proprietary information that is commercially valuable because it is not known to others.
2. Seek professional guidance
It is not necessary to know the nuts and bolts of protecting IP; this is what IP professionals do best and all innovators are best served to seek advice and help in protecting their IP.
Instead, establish a relationship with someone who works with IP as their profession and use your energy and efforts to create the IP. If you think there might be something protectable, reach out to your IP advisor and discuss whether protection may be available. It never hurts to ask.
3. Understand the value of intellectual property
IP can inspire innovation and promote entrepreneurship. Young people today have grown up with access to a tremendous amount of information available literally at their fingertips; with a few taps on a mobile device they can communicate globally and conduct research on any conceivable topic.
A result of this is the incubation and evolution of a global corps of innovative, entrepreneurial, outside-the-box thinkers looking to make changes with a sense of necessary urgency.
Some will invent new technologies, some will create start-up companies to develop solutions and further refine these new technologies, and others will be employed by these inventors and start-ups.
The economies created by these emerging companies and technologies will need incentives, some of which will be financial incentives, to successfully complete and implement this work. Protection of IP related to the new developments provides income and the injection of investment dollars that will assist these innovators in progressing their ideas forward, and provides a financial structure that allows them to pay their employees a fair wage as they go about their important business.
4. Understand the importance of intellectual property
IP provides an avenue for confronting and providing solutions for critical and pressing global issues, concerns which are near and dear (and critical) to young entrepreneurs today. As an example, it has never been more clear that creating environmentally friendly products and developing sustainable and renewable energy sources is top of mind in many of today’s youth.
The global pandemic has further highlighted the fragile nature of the world in which we live and the need for advancements that will promote the survival of future generations, and those just now entering the workforce have a sense of urgency about taking steps to develop solutions, and quickly.
Protection of IP enables costly research to be undertaken in a serious and expeditious manner, and this promotes and encourages disclosure of these new developments so that others can improve upon them even further, while also providing licensing opportunities to provide a source of revenue that enables the emergence of additional new technologies and scientific advancements.
5. Protection of intellectual property can drive an economy
Protection of IP can provide and support employment opportunities that pay a fair wage. Like it or not, developing new ideas, effective vaccines, new medical technologies, viable electric vehicles, sustainable products—virtually everything—requires financial backing of some kind.
Protection of IP provides the IP owner with the ability to monetise the innovations they have developed or have hired others to develop. Done properly and fairly, everyone wins.
The company creates innovative products that it can sell exclusively or license others to make and sell, and thereby generate revenue for the company; the employees who develop or manufacture the innovative products can be paid a fair wage and support their families and put money back into the economy; and the consumers of the developments reap the benefits provided by the innovations.
Entrepreneurship can have many different looks: it can be entered into to solve world problems, to better the lives of others, to make a living, to become wealthy, or any or all of these.
Some will succeed and some will fail, but entrepreneurial endeavours share a few common themes: innovative and creative people looking to make a change in some manner. Knowing how to protect the IP created by these endeavours can be a critical factor in successful entrepreneurship.
Mark Simpson is a partner at Saul Ewing Arnstein & Lehr and co-chair of the firm’s IP practice group. He can be contacted at: firstname.lastname@example.org
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