Intellectual Property Rights & Associated Challenges for Small Business

By Fernald, Lloyd W., Jr. | Journal of Business and Entrepreneurship, October 1995 | Go to article overview

Intellectual Property Rights & Associated Challenges for Small Business


Fernald, Lloyd W., Jr., Journal of Business and Entrepreneurship


ABSTRACT

There is a global effort to encourage free trade and to enforce intellectual property rights of businesses, both large and small, on an international level through both international and national laws. While increased international trade opportunities are available to small businesses, they must understand their rights with respect to intellectual property and ensure that they take the necessary actions to ensure these rights. Patents, trademarks, copyrights and trade secrets are, in fact, assets which must be preserved just as are the products, processes or services of small businesses.

INTRODUCTION

There is considerable discussion and literature pertaining to the myriad of new opportunities and challenges resulting from the changes in business which have occurred throughout the world during the past decade. One major source of change is the global effort to encourage free trade and to enforce intellectual property rights of businesses, both large and small, on an international level through both international and national laws. While increased international trade opportunities are available to small businesses, they must understand their rights with respect to intellectual property and take the necessary actions to protect these rights. Patents, trademarks, copyrights and trade secrets are, in fact, assets which must be preserved just as are the products, processes or services of small businesses.

It follows that small businesses should take the necessary precautions to understand their intellectual property rights (IPR) and pursue the prescribed actions required to ensure that this vital economic asset is protected. This article will address international piracy of IPR; international agreements affecting IPR; specific actions and information pertinent to small businesses relative to IPR; a discussion of patent, trademark, and copyright factors; and finally, IPR and the legal system.

LITERATURE REVIEW

International Piracy of IPR

Small businesses can easily fail for many reasons, including changes in customer desires, increased competition, and regulatory changes. One significant underlying cause is when their product or service is duplicated or improved upon by others, especially by large organizations or in nations where labor and other expenses of production are lower.

India, Thailand and Taiwan lead the Asian countries in violations of IPR laws. Other Asian nations, including South Korea, the Philippines and Indonesia were also included in the list of trade interlopers compiled by U.S. Trade Representatives. While the pressure on Asian countries to obey IPR law continues, it is believed by some that violations by Eastern European and Latin American countries are being overlooked due to political and economic considerations (Awanohara, 1992).

Asian countries such as Hong Kong, China and Taiwan continue to be the leading manufacturers in the world of quality counterfeit products. U.S. demands for the strict enforcement of laws on the protection of IPR are forcing these countries to adopt stricter measures against individuals or companies engaged in the infringement of IPR An example can be seen in China's vigorous campaign against pirates of intellectual property in 1992 (Blass, 1992). This campaign continues with debatable success as this article is written.

International Agreements Affecting IPR

Most importantly, international agreements offer intellectual property protection and most of the treaties that cover IPR are administered by the World Intellectual Property Organization (WIPO), headquartered in Geneva, Switzerland. The major treaties include the Paris Union, also called the "Paris Convention," whose purpose is to protect patents. It also covers trademarks, industrial designs, and other types of information that needs protection (World Intellectual Property Organization, 1993).

Obtaining a patent in one country, however, does not guarantee receiving a patent in another member nation. …

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