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Sentimental Assets

The Complexity Of Addressing Intellectual Property (IP) In An Estate Plan

As is typical, you’ve probably accumulated a wide variety of tangible assets throughout your life. Such valuables, ranging from automobiles to works of art to property and beyond, are usually accounted for in your estate plan, while intangible assets can easily be overlooked.

IP assets can have great value. These can include such things as patents, copyrights, and much more. If you have them, it’s important to properly address them in your estate plan.

Common Forms Of IP
IP generally falls into one of these categories: patents, copyrights, trademarks, or trade secrets. Here we’ll focus on patents and copyrights, which are protected by federal law to promote scientific and creative endeavors by providing inventors and artists with exclusive rights to exploit the economic benefits of their work for a predetermined time.

Patents protect inventions, and the two most common are utility and design patents. A utility patent may be granted to someone who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” A design patent is available for a “new, original and ornamental design for an article of manufacture.” To obtain patent protection, inventions must be novel, “nonobvious” and useful.

Utility patents protect an invention for 20 years from the patent application filing date. Design patents filed on or after May 13, 2015 last 15 years from the patent issue date. There’s a difference between the filing date and issue date. For utility patents, it takes at least a year and a half from date of filing to date of issue.

Copyrights protect the original expression of ideas that are fixed in a “tangible medium of expression.” These tangible mediums of expression typically take the form of written works, music, paintings, and photographs.

Unlike patents, which must be approved by the U.S. Patent and Trademark Office, copyright protection kicks in as soon as a work is fixed in a tangible medium. For works created in 1978 and later, an author-owned copyright generally lasts for the author’s lifetime plus 70 years.

Estate Planning For IP
For estate planning purposes, a key question is: What’s it worth? Valuing IP is a complex process. It’s best to obtain an appraisal from a professional with experience valuing IP. After you know the IP’s value, decide whether to transfer it to family members or charity through lifetime gifts or bequests after your death.

It’s important to plan the transaction carefully to ensure that your objectives are achieved. There’s a common misconception that, when you transfer ownership of the tangible medium on which IP is recorded, you also transfer the IP rights. However, IP rights are separate from the work itself and are retained by the creator — even if the work is sold or given away.

Contact us to learn more on addressing IP in your estate plan.

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