§8.1 Intellectual Property (IP) Backgrounder

• Jurisdiction: United States
• Publication year: 2022

§8.1 Intellectual Property (IP) Backgrounder

Intellectual Property, aka "IP," encompasses the rights and ability to enforce rights that are inherent in a newly created work. "Work" in IP includes new inventions, such as a new dietary supplement formulation or new method of making a dietary supplement; innovative product marketing, such as label literature or container design, innovative logo, slogans, and product identifiers, new web-based storefront, and secrets relating to dietary supplement formulations and ingredients.¹

Two levels of IP benefit dietary supplement manufacturers and distributors, which are IP acquisition and IP enforcement. IP acquisition involves achieving a patent, trademark, and/or copyright registration for a work that relates to the dietary supplement industry. IP enforcement involves protecting the acquired IP registration against third parties who may use the acquired IP without permission.²

The current size off the dietary supplement industry is more than USD$40 billion, spread over tens of thousands of products.³ To distinguish supplement products from one another, manufacturers and distributors employ new formulas, innovative means, standout packaging, creative trade names, and webstore fronts. Online webstore fronts have increased substantially as a means of attracting and selling product to consumers.⁴

The importance of IP acquisition and enforcement of rights has become a vital consideration for dietary supplement developers, marketers, distributors, and direct sellers.⁵ We present several areas of IP that dietary supplement manufacturers may use to acquire rights and enforce.

§8.1.1 Patent Primer

A patent is an IP right awarded to the creator of a new invention.⁶ New inventions can include innovative products, innovative methods of making products, innovative methods of administering products, or other innovative aspects for industry.⁷ In the dietary supplement industry, patents are often used to protect innovative formulations, innovative dietary ingredients, innovative methods of making dietary supplements, innovative methods of administering dietary supplements, and using innovative technologies, such as computer-based technologies, for monitoring dietary supplements.

The period of protection is based on the laws of the country or region where the right is awarded—in the United States, the period of protection is twenty years from the date of filing of a patent application.⁸ Patents are obtained by presenting a new patent application to a country's patent office, and then, usually, engaging in documentary analysis of the subject invention of the patent application.⁹ The scope of protection offered by a particular patent is found in the "claims" of the patent, which are the numbered assertions usually located in the back of the patent.¹⁰

§8.1.1.1 Acquiring Patent Rights

Patent rights are acquired by disclosing an invention, in writing, to a patent regime, and proving to the regime the invention is at least new. In the United States, inventions must be new, novel, and non-obvious. Acquired patent rights are not indefinite over time—in the United States, rights are enforceable for a twenty-year period.¹¹ The patent right is specific to each country's laws, while in the United States patent rights are "negative rights," meaning an owner has the right to stop others from utilizing the invention.

Patent rights are defined by "claims," which in many instances are positioned at the end of a patent specification. Claims, beginning with the number "1," create the metes and bounds, or scope, of the patent rights. The specification, which precedes the claims, can be used to create context to the claims.

§8.1.1.2 Enforcing Patent Rights

Patent rights are enforceable upon formal registration, or issuance, of the patent. Patents are enforceable at the pre-litigation¹² and litigation stages.¹³ In the United States, federal law sets forth the procedure and substance for addressing occurrences of infringement.

§8.1.2 Trademark Primer

§8.1.2.1 Acquiring Trademark Rights

Trademark registration is primarily based on a party being able to establish it was the first to use any symbol device, sound, smell, color, logo, slogan, etc., that can distinguish a product and service of one company (entity) from another company's products and services. In short, a trademark can be almost anything perceived by the human senses, provided it allows other humans to determine the company that owns the mark. Trademarks are registered by entities for the benefit of allowing consumers to determine with whom they are dealing with. Entities must also police or legally protect the trademark.

In most legal regimes, trademarks are registered and enforced at the country or regional level. In common law countries, such as the United States, trademarks can be acquired and enforced at the state, or local, level and the federal, or country-wide, level. Registration, in general, requires a new trademark application to successfully overcome legal hurdles during a "prosecutorial" proceeding.

The prosecutorial...