The Evolution of Intellectual Property Law in the Digital Age

The law is constantly evolving. From new statutes to new court decisions, companies, individuals and their legal counsel must ensure that they continuously remain abreast of the latest developments. Relying on “old law” can be both costly and risky—and it is a mistake that must be avoided.

This is perhaps nowhere more true than in the field of intellectual property (IP).

Intellectual property is among the most rapidly developing fields of law. This is because it both protects and is spurred on by innovation. As companies and individuals continue to innovate at an ever-increasing rate, legislators and judges must do their best to keep pace. For IP owners, it is imperative to work with an experienced Florida intellectual property attorney who is keeping pace as well.

The Unprecedented Impacts of the Digital Age on IP Law

While technological innovation has always spurred the evolution of IP law, the impacts of the digital age are unprecedented. A century ago, not only were new innovations fewer and far between, but they were also largely underpinned by the same general IP law principles. In the early 1900s, we saw inventions like the radio, the television and the instant camera. These were all incredibly innovative for their time; but, from an intellectual property perspective, they all involved the relatively straightforward application of existing U.S. copyright and patent law.

In the digital age, however, many innovations require a reassessment of the entire rule book. From digital media to non-fungible tokens (NFTs), and from metaverses to artificial intelligence (AI), today’s innovations were science fiction—if that—when our long-standing IP laws were originally developed.

What does this mean for innovators and creators in today’s digital space?

The short answer is, “It’s complicated.” Or, “It’s very complicated,” to be more precise. We’re seeing this play out with litigation concerning generative AI platforms that is currently pending in federal courts across the country. While generative AI platform developers believe they are entitled to unfettered access to publicly available content, content owners understandably have a very different viewpoint.

What is unique here is that not only are there valid arguments on both sides, but existing IP laws don’t come close to providing a clear answer—and the outcome of this litigation could have profound impacts for decades to come. The IP-related issues surrounding generative AI are truly unprecedented in many respects. We’re at a point where the law is lagging behind technological innovation, and this presents a variety of challenges for all parties involved.

To be clear, generative AI is just one example of an area where these issues are unfolding. We regularly speak with business owners, in-house lawyers, and innovators who have questions that no one has ever asked. While it is a very interesting time, it is also a very challenging time, and this makes it critical for IP owners to ensure that they are relying on sound legal advice rendered with a forward-looking perspective.

Effectively Managing an IP Portfolio in an Evolving Legal Landscape

With this in mind, what can (and should) innovators and game changers be doing to protect their intellectual property—while also mitigating their risk of facing infringement allegations? Here are some key steps for effectively managing an IP portfolio in the digital age’s constantly (and rapidly) evolving legal landscape:

1. Identify Innovations that Are (or May Be) Eligible for IP Protection

As always, a key first step is to identify innovations that are (or may be) eligible for IP protection. If a new innovation is eligible for protection, then taking the necessary steps to protect it promptly will be important for avoiding unnecessary risks. If an innovation may be eligible for IP protection, then it will be necessary to both:

• Accurately assess whether IP protection is available; and,
• If protection is available, determine whether further use or innovation could lead to infringement allegations from a prior rights holder.

Far too often, innovators (both companies and individuals) wait too long to address IP ownership. In doing so, they either fail to secure necessary protections or continue down a path of infringement without realizing it. At this stage, a substantial amount of money has been invested, and it can be difficult (but necessary) to acknowledge that further investment will be counterproductive. Ignoring the risk of infringement claims, in particular, can lead to substantial losses that could—and should—have been avoided.

2. Focus on the Basics

While digital innovations can present a variety of unique IP-related considerations, it is important not to overlook the basics. Fundamentally, is the innovation eligible for patent protection (does it satisfy the elements of patentability)? Do any elements or aspects of the innovation implicate U.S. copyright laws? Will you be developing (or have you already developed) a new trademark that requires registration to secure national priority? These are fundamental questions that need to be addressed no matter how unprecedented an innovation may be.

In this same vein, it is important to assess potential infringement concerns as well. If an innovation is fundamentally eligible for patent protection, a patent search will be necessary to confirm that protection is not precluded by prior art. If you intend to market the innovation under a new trademark, you will need to engage a Florida intellectual property attorney to conduct a clearance search and determine if your chosen mark is available for use in the United States.

3. Take a Proactive Approach to Addressing Complex Questions

As we mentioned above, one of the most common mistakes we see in this space is innovators waiting too long to address the intellectual property implications of their efforts. Any time you are dealing with complex IP-related issues (or any complex legal issues), a proactive approach is best.

An experienced Florida intellectual property attorney should be able to aid—rather than impede—your efforts to innovate. By addressing IP-related issues up front, the goal is not to simply identify potential roadblocks but rather to determine what is necessary to overcome any roadblocks that may exist. This risk-conscious approach will be most cost-effective in the long run, and it can help ensure that you are not investing in one area when it would be more prudent to invest elsewhere.

4. Register Early and Often

When it comes to protecting IP assets, our advice is to register early and often. Once you are eligible to file for registration, there are no benefits to waiting—but waiting can prove incredibly detrimental. The first-to-use and first-to-file rules that exist in the United States mean that innovators can lose the ability to protect newly-developed IP if they fail to do so in a timely manner.

5. Consider the Benefits of Licensing and Other Alternatives to Inviting Infringement Allegations

Any time existing law does not provide a clear answer and there is a substantial amount of money at stake, litigation is almost an inevitability. With this in mind, companies and individuals who are in the process of developing new digital innovations may want to consider the benefits of licensing and other alternatives in some cases. If moving forward with your plans is virtually certain to invite litigation, it will be important to critically assess whether moving forward is truly the best approach in light of the circumstances at hand.

6. Consider the Benefits of Establishing New IP Law

Of course, in some cases, it will be. Those who are at the forefront of technological innovation have a unique opportunity not only to shape the digital landscape but to shape the legal landscape as well. Shaping the legal landscape often involves going to court and securing a favorable ruling that establishes precedent for the future. While the outcome of litigation is inherently uncertain, an experienced Florida intellectual property attorney should be able to help you make an informed and calculated decision about whether this is a viable approach.

7. Don’t Forget About Protecting Your IP (and Respecting Others’ IP Rights) Internationally

Finally, when it comes to digital innovations, it is important to focus not only on intellectual property law in the U.S. but also on intellectual property law abroad. Companies and individuals may need to protect their innovations in multiple jurisdictions around the world—and they may need to monitor for infringement in (or emanating from) multiple jurisdictions around the world as well. With the global digital economy, international IP protection is becoming increasingly important, and IP owners who overlook their cross-border IP protection needs can unexpectedly find themselves in the unenviable position of being unable to enforce any exclusive rights.

Schedule a Call with a Florida Intellectual Property Attorney at Lott & Fischer, P.L.

Do you have questions about what you can—and should—be doing to protect your (or your company’s) digital innovations and mitigate IP-related risk? If so, we invite you to get in touch. To schedule a call with a Florida intellectual property attorney at Lott & Fischer, P.L., please call 305-448-7089 or tell us how we can get in touch online today.