Intellectual Property and Your Estate
Among the many considerations to ponder when forming your estate strategy, intellectual property (IP) is among the more important and misunderstood. The phrase itself may be somewhat confusing, as people may not know whether it applies to them or their assets. To clear things up, let's start by defining what exactly is meant by intellectual property.
知识产权包括四个不同的考虑领域:专利、商标、版权和商业秘密. Let's look at each of these in a little more detail:
- Patents are any property rights registered through the U.S. 专利商标局为一项原始发明，如工艺或机器而申请的专利. When the office deems an invention to be patentable, inventors are awarded a patent that helps to protect their investment. These include design patents (think of the distinct shape of a sports car or Coca-Cola bottle), utility patents (for things such as software, applications, and pharmaceuticals), and patents for new varieties of plants (e.g., a new variety of rose or a fruit tree with unique properties).1
- Trademarks cover many of the items used to identify a product or service, including service marks and trade dress. Trademark owners may assign their ownership or bequeath the rights. What counts as a trademark? Think of McDonald's Golden Arches or the symbols associated with Amazon, Netflix, Disney, and other media companies. Trademarks can also extend to colors, fonts, and even specific words associated with a product or service.1(提及公司仅作说明之用，并非招揽买卖其证券. 任何AG捕鱼王新版app下载都应该与你的目标、时间框架和风险承受能力保持一致.)
- Copyrights 根据著作权法的定义，保护和维护原创作品创作者的权利. This does not cover your idea for a mystery novel, but, if you write that novel, you automatically have copyright to your work. A copyright extends to poetry, works of fiction and nonfiction, music, the visual arts, podcasts, and most tangible works of expression. Creators hold what is called the original work of authorship, which entitles them to the copyright, and they have the option to register it with the U.S. Copyright Office. While registration is not required, it can strengthen the author's rights. Copyright assets can be transferred under an estate strategy, but the protection doesn't last forever (see below).1,2
- Trade secrets belong to a company and may be defined as confidential business information that provides a competitive edge; this nonpublic knowledge has monetary value and provides information. You can probably think of a few famous trade secrets, 比如可口可乐的配方，或者肯德基的桑德斯上校11种香草和香料. The company that owns a trade secret must take steps to maintain it, because it's no longer protected once it becomes publicly known. Unlike copyrights, trade secrets can be tangible or intangible. For programmers, for instance, the biggest secret in the tech business is probably Google's search algorithm. 如果你拥有一家公司，你的商业秘密将需要考虑到你的遗产策略中. 你可以要求受益人签署保密协议，并为继续保守商业秘密作出规定.1(需要重申的是，提及任何公司只是为了说明目的. 它不应被视为征求购买或出售其证券.)
With all that in mind, 很明显，IP代表着你或你所运营的公司的大量工作. For that reason, 以一种持续创造价值和满足个人期望的方式将其纳入您的遗产战略是很重要的.
IP can be one of the more valuable assets in an estate, but it can also be difficult to value and manage. 您的遗产专业人员应该对知识产权资产进行盘点，并考虑请知识产权律师评估其范围. 同样重要的是，要考虑创作者对其IP的个人偏好，以确保其按照自己的意愿进行管理. For instance, they might not want a song they wrote to be used to sell products.
Before including IP in an estate strategy, it's important to confirm ownership, 由于原发明人或设计人不可能是发明或创造性作品的唯一权利所有人. Joint inventors or creators may have agreed on various percentages of ownership. Additionally, the IP may have been assigned to another person or entity, transferring some or all rights. 还应审查就业协议，以确定哪些权利可以转让给受益人.3
The value of IP also depends on the remaining life of the asset. 专利有一个固定的期限，要么是20年(实用专利)，要么是14到15年(外观设计专利)。. Copyright protection lasts for the author's lifetime plus seventy years, but, for older copyrights, there is a different cutoff. In 2024, all works from 1928 and earlier entered the public domain. 如果商标和商业秘密继续被使用或具有商业价值，它们就可以无限期地持续下去.3 Keep in mind that IP rules change constantly, and there is no guarantee that they will remain the same in the years ahead.
While the value of IP may be in flux, certain benchmarks can be considered. 过去的许可协议可以让我们了解到IP的价值，以及所授予的权利是排他性的还是非排他性的. Non-exclusive rights allow for potential expansion of licensing opportunities, whereas exclusive rights have a fixed value and timeline. Other valuations for IP assets, such as for sale, taxes, or business transactions, should also be reviewed. The absence of a valuation can negatively impact the value of the IP assets.3
某些类型的IP(如版权)是基于潜在的未来收益进行估值的. 聘请知识产权特定领域的专业专家或评估师可以确定当前和未来的价值. 版权人的后代可以终止版权转让，重新获得对创作作品的议价能力. 此外，法院判决可能会使专利无效，使其在经济上一文不值. 对于您的遗产专家来说，咨询知识产权律师评估专利资产无效的风险是很重要的.3
Overall, 保护创作者的个人遗产需要仔细考虑他们对知识产权的意愿. By including specific instructions in the estate strategy, 您可以确保他们的工作以符合他们个人喜好的方式处理，并有助于保存他们的遗产.
When factoring your IP into your estate strategy, 要把这笔遗产传给继承人，你必须仔细考虑许多因素. Working with your financial team, 你将能够决定如何最好地将你的知识产权纳入该战略，以便继续为你的受益人提供服务.
1. StFrancisLaw.com, August 22, 2023
2. Copyright.gov, August 22, 2023
3. AmericanBar.org, August 22, 2023
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