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A Scenario

Student Legal Services - ASUW

Intellectual Property Scenario

Jane S. Ucker has, after much toil and burning of the midnight oil, invented a brand new device which transforms lead into gold. She has also come up with a logo, the catchphrase "Lead 2 Gold 4 U," and a jingle for her nascent enterprise.

Jane has two basic options, she can register and protect her intellectual property by obtaining patent, copyright, and trademark protection; or she can celebrate her unbridled greed without regard to the unfortunate reality of intellectual property infringement.

Coming from a long line of S. Uckers, Jane decides to immediately build the machine and begin operations before protecting her invention with the requisite copyright, patent, and trademarks.

Jane has here engaged in unprotected capitalism. Jane might reap immediate and short term benefits from such reckless exploitation. However, Jane has forgotten that her intellectual property is not sufficiently protected until she has registered it and obtained the appropriate protections, whether patent, copyright, or trademark.

For example, Jane has failed to protect herself from Thiefy McThieferson, who, recognizing the immense value of such a machine and the genius of her marketing, promptly steals her invention, and usurps her marketing agenda. Now, Thiefy, being a crafty character, proceeds to reverse engineer the machine, produce detailed plans, a fresh new logo, records the jingle on his tape recorder, and hustles down to his local patent, trademark, and copyright offices.

Thiefy has prudently, albeit dishonestly, begun the registration process which will give him an edge should Jane discover his absconding with her ideas.

When Jane finds out about Thiefy's thieving ways, she will face a tremendous burden in defending her invention from being stolen by Thiefy. Jane may ultimately win her court battle with Thiefy. Jane may not. A sad reality of the world is that well-funded, organized, individuals have a discernible advantage in court.

If Jane had gone through the registration processes prior to production, Jane would likely have an airtight case against Thiefy. By failing to adequately protect her intellectual property, Jane is in for a nightmare. Even if she does eventually win her court case against Thiefy, Jane will likely have spent years, and tens (if not hundreds) of thousands of dollars which she may or may not be able to recover from Thiefy.

In the meantime, Suzie T. Opportunisto could have invented a new machine obviating Jane's machine, because it turns anything it touches to gold. By not expediently registering her works with the appropriate government agency, Jane will surely rue the day she chose to begin full scale exploitation of her invention without proper protection.

Jane's failure to move first by obtaining the appropriate patent, copyright, or trademark protection for her ingenious new idea has either (1) absolutely undermined her business plan and destroyed her life; or (2) caused her a tremendous headache defending her ingenious idea from unscrupulous individuals by the expenditure of vast sums of money which would have been better spent making the company more profitable and awesome.

Jane would have been well served to obtain the appropriate intellectual property protection, whether it be patent, copyright, or trademark protection. As it is, Thiefy McThieferson could be forced to pay Jane for all her losses, but, then again, he might not. And if Thiefy was not an individual, but a large well-funded organization with legions of lawyers at its disposal, Jane would likely have stood no chance. Poor Jane, what a sucker.

On the other hand, if Jane had promptly registered her works with the patent, copyright, and trademark offices, she would have been able to stand up in court and present her registration documents. The court, seeing these documents, would have an easy task of awarding Jane damages to her business resulting from Thiefy's infringement on her intellectual property rights, as well as attorneys' fees and statutory damages.

Furthermore, if Jane had properly registered her intellectual property, she could use those rights to obtain venture capital funding to expand her enterprise, or, alternatively, she could have issued separate licenses to other companies. By selling these other licenses to other companies, Jane would be able to enjoy the fruits of her labor without having to manufacture, market, and distribute her invention herself. These licenses essentially transfer the risk of her enterprise to the companies paying her for the rights to manufacture, market, and/or distribute her invention - she receives income from the licenses, they do the work.

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