Page 12 - Intellectual Property Disputes

In light of the important role that intellectual property plays in the current global economy, identifying,
managing, and protecting these assets are essential functions for many businesses. An FVS practitioner
with specialized training in forensic accounting and valuation can provide his or her clients with
professional assistance in this area, helping them manage their intellectual property assets, supporting
them in license negotiations, calculating damages, and performing other important functions.

Overview of Traditional Forms of Intellectual Property

A central premise of U.S. intellectual property law is to foster innovation by affording innovators certain
rights in connection with their innovations. Article I, Section 8, Clause 8 of the U.S. Constitution
specifically authorized Congress to enact patent and copyright laws. The federal trademark laws were
authorized more generally in the Constitution, pursuant to Article I, Section 8, Clause 3, which states,
"Congress shall have power . . . to regulate commerce with foreign Nations, and among the several
States, and with Indian Tribes." fn 6

The following sections of this practice aid present an overview of patent, trademark, trade secret, and
copyright systems in the United States. Each section addresses the nature of the rights protected,
property considerations, the formal registration processes, and enforcement considerations. A summary
of trade secret law is also included.

Given the broad and ever-expanding nature of intellectual property law and practice, this practice aid is
not intended to be exhaustive in nature. It is intended for informational purposes, and it is presented in
the context of litigation services engagements performed by forensic practitioners.

Patent Overview

Article I, Section 8, Clause 8 of the Constitution specifically authorized Congress to enact patent laws. fn
7 Patents provide an incentive for inventors to publish their inventions and discoveries, which comes in
the form of the legal right to exclude others from the market. In order to qualify for patent protection,
inventions and discoveries should represent a "new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement thereof." fn 8 In addition to patents for
utilitarian inventions (utility patents), the Patent Statute, U.S. Code (USC) 35, provides that patents are
available for certain ornamental designs (design patents) and certain plants (plant patents). Utility
patents may be granted to anyone who invents or discovers any new and useful process, machine, article
of manufacture, or composition of matter or any new and useful improvement thereof. Design patents
may be granted to anyone who invents a new, original, and ornamental design for an article of
manufacture. In simple terms, utility patents protect the way an article is used and works, whereas
design patents protect the way an article looks. Plant patents may be granted to anyone who invents or
discovers and asexually reproduces any distinct and new variety of plant.

fn 6 U.S. Const. art. I, sec. 8, cl. 3.

fn 7 U.S. Const. art. I, sec. 8, cl. 3 also authorized the U.S. Congress to enact copyright laws.

fn 8 Patents, U.S. Code (USC) 35, Section 101.

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