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San Jose intellectual property litigation attorneyThere are many paths to fame and fortune for Silicon Valley startups, and so too there are many paths to an intellectual property infringement lawsuit. The very diversity of ways that two companies can get into a dispute over IP is noteworthy in itself. The following cases can serve as fair warning to business owners who may come in contact with a competitor’s IP during merger discussions or via former employees of a competitor. 

Merger Talks Can Lead to Patent Infringement

In one case, two makers of ambient light sensors (we will call them M1 and M2) exchanged confidential information while discussing a merger that ultimately did not take place. M1 subsequently released a new product that mimicked a design that M2 had shown them during the merger negotiations. M2 sued M1 for patent infringement, trade secret misappropriation, breach of contract, and tortious interference with prospective business relations. The case was tried before a jury in 2015, and plaintiff M2 was awarded damages on all four claims totaling over $88 million. A federal appeals court, however, reversed part of the lower court’s decision in May 2018, significantly reducing the damages awarded.

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Santa Clara County intellectual property attorney trademark patentYou may think your business’s primary assets are your building, the computer equipment you own, or perhaps a vehicle fleet. And you surely have insurance on those assets. But what about your intellectual property assets? Are you giving them due consideration and protection? 

What Counts as Intellectual Property?

When you think of intellectual property (IP), what comes to mind first? For most people, they think of the research and development division and patented inventions, including proprietary algorithms, processes, and methods. But your sales and marketing departments also have IP, in the form of copyrighted documents, trademarked logos, your website domain name, and client lists. 

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Some people have dreams of creating content on the internet, so that they can earn some of that sweet "internet money." These people make videos, GIFs, images, blog posts and many other forms of content to reach their dream. In these cases, they do so intentionally. If they are lucky, one of their pieces of content will "go viral" and sweep the globe at a rapid pace as friends share the content with friends, who share it with other friends -- and so on.

But not every "viral" meme or video is created intentionally. Sometimes everyday people just happen to capture an incredible moment on video or in a picture, and when they share it with a few people, it quickly spreads like a wildfire without them even intending for it to do so.

So the question here is: how are viral videos and viral internet memes affected by intellectual property law?

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Most people have heard of a trademark before, and even if they don't know what a trademark is, they can probably recognize the iconic "TM" symbol near a logo, word or phrase. A trademark is actually quite simple : it signifies that the mark (may that be a logo, word, phrase or something else) is of a certain source and shouldn't be confused with other sources that may make similar products.

Trademarks don't protect against other companies making or selling the same product as a company that has a trademark. Rather, the trademark prevents other companies from using similar or confusingly identical logos, phrases and imagery to the company with the trademark. The other companies have an obvious incentive for doing this: they want to reap the benefits of the trademarked company's reputation. The company with the trademark obviously wants to protect that.

Registering a trademark can be a little complicated, but it is important to note that you still have rights even if you don't register the mark. However, getting the trademark registered is a very crucial step to protecting your company's identity.

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Patents are vital to the world of intellectual property. Whether a company is trying to protect a mass-produced product, or a small, independent content creator is trying to protect their work, a patent is crucial to ensuring that the company or individual receives the credit they deserve for creating that work.

But ultimately, what is a patent? Formally, it is a legal protection that forbids other people from recreating, repurposing or using your work for their purposes without your consent. This is referred to as a "negative right." In other words, it grants you the right to exclude other people from doing something. Once a patent is granted, then no other person or company can make an independent claim that they created or invented the work protect under patent.

Before a patent is granted, though, there is an extensive patent application process, and the rights granted to the creator applying for a patent are important during this process. For example, before you apply for a patent, you have no legal protections whatsoever. That means that another company or creator could be independently creating a similar (or identical) piece of work to your own and they would not be violating any rules or laws.

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State Bar of California NYSBA Santa Clara County Bar Association US Department of Homeland Security US Court of Appeals US Patent and Trademark Office
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