Physician practice owners increasingly have a variety of intellectual property assets to protect. In part two of our discussion on this area of law, I’ll outline the basics of copyrights, patents, and trade secrets doctors should know.
We started our look at intellectual property law issues related to your medical business with a look at trademarks and related derivative property rights. Once again, Attorney Michael Dvoren with Jaburg Wilk in Phoenix has generously allowed me to use his expert teaching materials as the basis of this introduction. As physicians become increasingly entrepreneurial and multiply their revenue streams, the need to think beyond protecting “just” your practice’s name and logo grows.
Do You Have “Copyrights”?
A copyright protects nearly any original thing or expression you can create and make tangible through a medium including literary, dramatic, musical, audio, architectural, cartographic, choreographic, pantomimic, pictorial, photographic, graphic, sculptural, and audiovisual creations. Specific examples include articles you’ve written, the content of your website, and other social media accounts (including the use of your original images and pictures) and perhaps even the podcast for doctors you now host on your days off.
If you create something as a copyright owner you have five exclusive rights granted under copyright which are the rights:
• to reproduce
• to distribute
• to publicly display
• to publicly perform
• to make derivative works of their copyrighted property.
A copyright author automatically owns their copyrightable works at the moment of creation but considering timely registration with the U.S. Copyright Office is always advisable in case you have to enforce those rights and need a “time stamp” that records it. Registration is required before you can sue infringers in federal court or get attorney’s costs or statutory damages and the timing of your registration also plays a role.
Patent law evolves and expands with technology and includes protection for any new and useful “process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” such as tools, technological devices, genetic engineering procedures, business methods, and even genetically altered life forms.
One physician I recently spoke to was planning for a very valuable patent on a ortho-surgery technique and equipment combo (so he had both a design and a process patent) and I’ve also recently had doctors make inquiries about IP issues coming out of the cosmetic surgery, neurosurgery, pain, and med-spa fields, among others.
In order to get a patent, your creation must meet the following tests; a patentable subject matter, it must be novel (not already patented, described in printed publication, in public use, on sale, or otherwise available to the public), non-obvious (non-obvious improvement over prior products or processes aka “prior art”), and finally, useful (unless it’s specifically a design patent, the invention must have a useful purpose and function).Ornamental designs may also be patented if they are novel, nonobvious, and nonfunctional, such as the shape of the iPhone.
Liability for “infringing” on a patent is generated in several ways including; when a third-party to one of these activities somehow uses the patented property without the permission of the owner, by actively encouraging others to infringe patents (remember music file sharing scandals?) or by supplying or importing components of a patented invention in addition to other related acts.
The law is this area includes definitions and rights under state and state and federal law. Trade secrets are generally defined as any not commonly and publicly known information including unique formulas, patterns, compilations, programs, devices, methods, techniques or processes.
Trade Secrets gained federal law protection through the Defend Trade Secrets Act (DTSA), enacted in 2016. Under the DTSA, almost every type of information can qualify as a trade secret if they meet two important tests. First, that this information must both derive independent economic value—actual or potential—from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use. Second, that the owner has taken reasonable efforts to keep the property secret under the circumstances, according to Dvoren.
In the digital age, protecting your branding and your intellectual property, ranging from your trademarks and their protection of your reputation to your patents and trade secrets is more vital and detail oriented than ever. Get personalized guidance on these issues from an expert and as always, be proactive for the most predictable results at the lowest cost.
Attorney Ike Devji has practiced in the areas of asset protection, risk management, and wealth preservation law exclusively for the last 15 years. He helps protect a national client base with over $5 billion in personal assets that includes serval thousand physicians and is a contributing author to multiple books for physicians and a frequent medical conference speaker and CME presenter.