Bill Ferrell is a fellow colleague who practices intellectual property law.  Recently, Bill wrote an article on what you can do to protect your intellectual property. As I reviewed this list of recommendations, I began to appreciate the intersection between construction law and intellectual property law.  

You see, the economic realities currently faced by the construction industry require streamlined designs, new systems, and innovative materials.  As new products, methods, and designs emerge, they need to be protected through copyrighted drawings, trademarks, patents, trade secrets or other means.

Based up some of Bill’s tips and my own comments, here’s what you can do to protect your intellectual property and prevent infringement or misuse:

  1. Iden­tify your intel­lec­tual prop­erty. The first step to pre­vent­ing infringe­ment is to iden­tify what types of intel­lec­tual prop­erty your com­pany pos­sesses. Many items con­sid­ered an expense can be con­verted into IP assets. Adver­tis­ing, train­ing mate­ri­als, instruc­tion man­u­als and com­puter pro­grams are com­monly over­looked as IP.  In the construction industry, IP can also include designs and methods of construction. 
  2. Pro­tect your intel­lec­tual prop­erty. Deter­mine whether you should pro­tect your assets with U.S. and/or for­eign patents, trade­marks or copy­rights. In many instances, reg­is­tra­tion of IP is the only means of enforc­ing your rights. Since reg­is­tra­tion of intel­lec­tual prop­erty can be expen­sive, care­fully select what to pro­tect.
  3. Choose busi­ness asso­ciates wisely. Thor­oughly inves­ti­gate any busi­ness asso­ciates. Con­firm that rel­e­vant con­tracts con­tain pro­vi­sions for pro­tect­ing your intel­lec­tual prop­erty. If out­sourc­ing man­u­fac­tur­ing to other coun­tries or working with foreign partners, con­sider split­ting man­u­fac­tur­ing between var­i­ous vendors to pre­vent any one vendor from learn­ing every­thing about your product.
  4. Mon­i­tor your intel­lec­tual prop­erty. Insti­tute a pol­icy under which the rel­e­vant com­merce streams are mon­i­tored for infring­ing goods or services.
  5. Vig­or­ously pro­tect your intel­lec­tual prop­erty. Vig­or­ously enforc­ing rights not only stops infringe­ment but also deters would-be infringers. Although it can be dif­fi­cult to get for­eign infringers into a U.S. court, intel­lec­tual prop­erty laws may allow enforce­ment against the domes­tic sub­sidiaries or dis­trib­u­tors of the infring­ing com­pany and the pur­chaser of the infring­ing goods. If there is a copyright or trademark infringement, you may seek an injunction, damages, and attorney’s fees.

Still not convinced about the intersection between construction law and intellectual property law? Consider some of the following examples:

  • You may need to exchange certain IP as part of forming a joint venture to pursue a construction job … how do you protect that exchange of information?
  • Suppose you want to advertise as being the best green-building contractor in the area … what kind of slogans can you use?
  • Your information technology assistant re-tools your scheduling software to interact with your cost reporting system … have you violated any license use restrictions?