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Intellectual property is usually comprised of patents, trademarks, and copyrights. Patents have a 15 or 20 year term. Trademarks can be renewed indefinitely. Copyrights last for 70 years after the artist’s or author’s death. Being prepared to deal with the death of the inventor, artist, author, or owner of intellectual property is often essential. Preparation enables easier continued use of the products, brands, and businesses that depend on the intellectual property. Read more in out article what is intellectual property.
To deal with intellectual property after death, usually the choice of how to transfer an inventor’s interest in a patent or patent application is a will. Bequeathing intellectual property by executing a will is also a common way for inventors, artists, and authors to transfer interests in copyrights. Owners of intellectual property who are not the inventor, artist, or author commonly use property trusts and property holding companies to transfer their interests in intellectual property rights.
Wills Transfer Intellectual Property Rights – Intellectual Property in Wills
Your intellectual property can be taken care of in your will along with your other property. Generally, for inventors, artists, and authors, intellectual property in a will is transferred to their heirs just like their personal property (i.e., jewelry, cars, etc.) and/or real property (i.e., house, land, etc.). Intellectual property upon death is addressed and dealt with under the law in the same way that personal property and/or real property is. In other words, inventors, artists, authors, and owners generally put their intellectual property in their will.
Inventors and creators (artists and authors) get patents, trademarks, and copyrights for their inventions and creations. All three (patents, trademarks, and copyrights) are intellectual property. Because intellectual property disposition is handled under the law like the other forms of property, there are several other ways to address what happens to intellectual property after death other than a will.
Issues surrounding intellectual property when you die can have negative consequences. It is often essential to address interests in intellectual property after death. For example, there is a public misconception that copyrighted works become public when the owner dies. When it comes to copyrights, the law says copyright protection extends for 70 years after the death of the artist or author. Thus, it is best practice to address the transfer of any patents, trademarks, and copyrights in a will or any of the other means discussed below.
Lawyers in your state are your best bet for seeking help with creating and executing a will correctly. Compliance with state law as well as procedures is important when looking to prepare and properly sign a last will and testament. Carson Patents highly recommends seeking the help of a good attorney to properly prepare a will to transfer interest in your intellectual property upon death.
Property Assignments Transfer Interests in Patents, Patent Applications, Trademarks, or Copyrights
Like the other forms of property, intellectual property can be assigned. An assignment is a legal document transferring some percentage or share of interest from the owner to a person or company. There can be multiple assignments for any single patent, patent application, trademark, or copyright. For example, if you want to share 10% interest with each of your key insiders that were with you from the beginning, you do one such assignment for each person or company.
Assignments are formal legal documents, signed, notarized, and recorded in the appropriate legal recording office. For example, patent and trademark assignment documents are recorded at the United States Patent and Trademark Office (USPTO) Electronic Patent Assignment System (EPAS). Read more about EPAS.
Because inventions and creative works are the direct product of the inventor or creator, the inventor or creator is the owner of the invention or creative work. Inventors, artists, and authors own their patents, trademarks, and copyrights until they are assigned. If you have not assigned your patent, trademark, or copyright, you own it and thus, assignment is an option. There are several other means to be sure you know what happens to your intellectual property assets; however, assignment is the way that inventors can share their interest in their patent applications and resulting patents.
Carson Patents prepares and records assignments for our inventors and entrepreneurs frequently. Contact us for help getting an assignment written and recorded to transfer an interest in your patent, patent application, trademark, or copyright.
Property Trusts Control Interests in Patents, Trademarks, or Copyrights
Similar to other forms of property, trusts can be used to transfer ownership and control over all of the forms of intellectual property. An inventor, artist, or author can set up a trust to control the interests in patents, patent applications, trademarks, and copyrights. A trust, or property trust, is a legal entity that holds the property for the designated beneficiaries.
A trust is a legal document that outlines at least three things: 1. What you would like done with the property you transfer into the trust. 2. What you would like done with any profits or proceeds from the property. 3. Who will benefit from receiving the property or from the monies earned with the property. A trust creates a legal relationship in a trustee (person trusted to manage the trust) to hold the property for the sole benefit of the named beneficiaries.
When properly established and managed, a trust is a great way to protect your future interests in your intellectual property. A trust can ensure that when you die, your property continues to perform as you want it to. Further, a trust can be used to ensure distribution to the heirs that you want to benefit from your invention or creative work.
Lawyers in your state are your best bet for seeking help with creating and executing a trust correctly. Compliance with state law as well as procedures is important when looking to prepare and properly execute a property trust. Carson Patents highly recommends seeking the help of a good attorney to properly prepare a trust to transfer interest in your intellectual property after death.
Property Holding Companies Protect Ownership of Intellectual Property
Just like for personal and real property, there are corporation based means that can used to address what happens to an inventor’s, artist’s, or author’s intellectual property called a property holding company. Property holding companies are used to own the interest in the property separate from an operating company.
For example, when it comes to patents, there is the potential of setting up a patent holding company. A patent holding company is a company, usually a corporation, set up by two or more persons or companies to hold their interests in one or more patents or patent applications. Patent holding companies sometimes get a bad reputation because patent trolls are known to use them to try and shield themselves for their own nefarious acts or promises to not act. Read more about patent trolls.
A patent holding company owns the patents and/or patent applications. The shares of the company can then be used to divide up and share the interest in the patents and patent applications. A patent holding company can be a good means to protect owners’ interests in a patent or patent application when there are multiple inventors.
Property holding companies can also be useful when licensing is used. For example, when licensing a patent, trademark, or copyright, a holding company may be useful to manage licensing. Sometimes it is necessary or desirable to license the use of intellectual property to one or more people or businesses to use the property protected. For example, you could have three manufacturers that you license your patent to for manufacturing.
Because intellectual property can be very valuable and time will get the best of us all, there are situations where setting up a patent holding company can be the best decision.
Lawyers in your state are your best bet for seeking help with creating and executing a property holding company correctly. Compliance with state law as well as procedures is important when looking to prepare and properly create a property holding company. Carson Patents highly recommends seeking the help of a good attorney to properly prepare a property holding company to transfer interest in your intellectual property after death.
What Happens to Your Intellectual Property if You Don’t Prepare?
If you do not prepare and implement a will, an assignment, a trust, or a property holding company to control what happens to your patents, patent applications, trademarks, and copyrights when you die, it will most likely transfer as it would under the intestate laws of your state. Transfers of intellectual property after death can be conducted for any of the inventor, artist, author, or owner. Read about determining patent value.
No Will – Intestate Transfers of Intellectual Property
Even if nothing is predetermined or arranged, your intellectual property will mostly likely still transfer to your heirs. When there is no will at death, intestacy laws of your state will decide who gets what share of your estate. All of the forms of intellectual property are property; therefore, they are regulated under property laws. Most states intestate laws will give your interest in your patents, patent applications, trademarks, and copyrights to your spouse and children. There are a lot of online resources for determining what happens under the intestate laws of your state to your intellectual property after death.
Conducting Transfers of Intellectual Property After Death
In order to transfer interest in a patent, patent application, trademark, or copyright after the inventor or creator has died, proof of ownership transfer is used by the new owner to get the property assigned to the new owner. In the United States (US), assignments transferring interest in patent and trademark intellectual property after death are conducted at the USPTO. Assignments transferring interest in copyrights are conducted at the US Copyright Office to transfer copyright intellectual property after death.
Lawyers in your state are your best bet for seeking help with post-death transfers of intellectual property. Compliance with state law as well as procedures is important when looking to prepare and properly execute a property transfer. What happens to a patent when the owner dies can be impactful. Carson Patents highly recommends seeking the help of a good attorney to properly prepare transfers of intellectual property after death.
