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Intellectual property

Everybody thinks they have the next billion dollar idea. Few people actually take steps to make their great idea become a reality. Making an idea into a viable product takes serious investments of time, labor, and money. It is no wonder that when an idea is copied or infringed upon, things can get very contentious.

Intellectual Property Attorney Miami-Dade, FL

Intellectual property cases can be extremely complicated. The attorney in an intellectual property case must be able to understand complex technical issues as well as have a solid background in litigation. The attorneys at Abrams Justice Trial Attorneys are experts in their field and can handle a vast array of complicated cases and issues. We serve the greater Miami-Dade area including Miami, Homestead, Hialeah, Coral Gardens, Miami Gardens, Miami Beach, North Miami, Doral, Coral Gables, and Cutler Bay. Call and make an appointment to meet with us at (305) 709-0880. We can evaluate your case and discuss your next options.

Miami-Dade FL, Intellectual Property Information Center

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Types of Intellectual Property

Intellectual property is any product of human intellect that is protected by law from use of others unless permission is granted by the property owner. Intellectual property laws are designed to make sure that authors and inventors are incentivized to release products to the public by ensuring that those authors and inventors are compensated for their work. There are four types of intellectual property protected under United States law.

  • Copyright – Copyright in simple terms protects the writings of authors. This includes architectural design, software, graphic arts, motion pictures, and sound recordings.
  • Trademark – A trademark is any word, name, symbol, design, or combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of goods.
  • Trade secrets – If a party is trying to maintain secrecy regarding information, including a formula, pattern, compilation, program, device, method, technique, or process that derives independent economic value from not being generally known, then that information is a protected trade secret.
  • Patents – Patents are granted for any process, machine, manufacture, or composition of matter, or improvement thereof that has utility, novelty, nonobviousness, and enablement.

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There are five requirements for something to be patentable.

  • Patentable Subject Matter – Under 35 U.S.C. § 101, the categories for patentable subject matter are broadly defined as any process, machine, manufacture, or composition of matter, or improvement thereof.
  • Utility – To qualify for a patent, the invention has to be useful. When a patent applicant states the utility of their creation that utility must be credible, specific, and substantial.
  • Novelty – It should be no surprise that a patent idea must be a new idea. Specifically, the invention could not have been known, patented, or described in a printed publication in this country prior to invention.
  • Nonobviousness – The test as to whether something is nonobvious is whether the thing to be patented would have been obvious to a person having ordinary skill in the art at the time the invention was made.
  • Enablement – When filing for a patent a specification, which contains a written description of the invention and the manner and process of making and using it. One of the requirements of enablement is that an ordinary person in the art should be able to make and use the invention without “undue experimentation” based on a written description of the invention.

If a patent is granted, the patent holder has the exclusive right to make, use, offer for sale, or sell the invention. These rights extend for twenty years from the date of filing, with five year extensions available for drugs, medical devices, and additives.

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Copyright protections start from the moment of creation and last for the life of the author plus 70 years or 95 years from publication or 120 years from creation if the work was made for hire or anonymous. The copyright holder does not necessarily have to register the work but can do so at any time during the term of the copyright. However, registering the copyright is necessary in an action for copyright infringement.

Copyright owners have the exclusive right to reproduce, distribute, perform, display, license, and to prepare derivative works based on the copyrighted work. These exclusive rights do not extend to works that fall under the “fair use” doctrine, such as criticism, comment, news reporting, teaching, scholarship, or research.

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Generally, any word, name, symbol, or device capable of distinguishing the source of goods may be used as a trademark. However, for a trademark to be valid it must be used in commerce and it must be distinctive.

Trademarks do not expire like copyrights or patents as long as they are used continuously for commerce. Trademarks do not necessarily need to be registered but there are advantages to registration. Of particular note, registration serves as notice to the entire nation and after five years if the trademark is uncontested it will obtain incontestable status which eliminates several defenses to claims for infringement.

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Trade Secrets

Trade secrets are an interesting animal. There are three essential elements to a trade secret claim:

  1. The subject matter must qualify for trade secret protection. Besides formulas, patterns, compilations, programs, devices, methods, techniques, or processes, protected subject matter includes customer lists, pricing guidelines, historical purchasing information, and customer business needs/preferences;
  2. The holder of the secret must establish that reasonable precautions were taken to prevent disclosure;
  3. The holder must finally prove that the secret was misappropriated or wrongfully taken.

Generally, it is illegal to obtain a trade secret if it was improperly obtained or obtained through a breach of confidence. If a trade secret is found through reverse engineering, independent discovery, or inadvertent disclosure, then the information would not count as having been misappropriated. Misappropriation can be a federal and state crime and the remedies for injured parties depends on the state.

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Additional Resources

Florida Trade Secret Statute – Florida has adopted its own version of the Uniform Trade Secrets Act. The link will take you to the full terms of the statute. Of interest is the section regarding damages where the law defines how to calculate damages for misappropriation.

U.S. Patent Office – The U.S. Patent Office Website gives a wealth of information regarding patents and trademarks. It also provides information about the registration process and required fees. There is also a search feature for both patents and trademarks.

U.S. Copyright Act – This link to Cornell’s Legal Information Institute will provide an easy way to navigate the entire U.S. Copyright Act. The statute is fairly extensive but of particular note is Chapter 1 which is the section that provides definitions and the scope of covered works.

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Find an Intellectual Property Attorney in Miami-Dade, FL

If you are part of an intellectual property dispute it may be clear to you that you are in the right. Proving that you are right in an intellectual property case on the other hand is not usually so straightforward. It is highly advisable that you seek counsel from a proven winner. The attorneys at Abrams Justice Trial Attorneys are no strangers to winning hard cases. We are battle hardened and we will aggressively protect your interests. We serve the greater Miami-Dade area including Miami, Homestead, Hialeah, Coral Gardens, Miami Gardens, Miami Beach, North Miami, Doral, Coral Gables, and Cutler Bay and if you have a case you need help with, call us at (305) 709-0880 so that we can discuss and evaluate your case.

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