When someone refers to an Intellectual Property Agreement, they are referring to an agreement or clause that deals with the creation, use and protection of intellectual property.
There isn't one type of Intellectual Property Agreement. The term "Intellectual Property Agreement" can be a reference to a number of different types of agreements.
What Is Intellectual Property?
An Intellectual Property Agreement is an agreement that outlines the rights and responsibilities of the parties involved in the creation, use, and protection of intellectual property.
Intellectual property is intangible property. It includes property such as patents, trademarks, copyrights and designs, and trade secrets. Often, intellectual property includes those things that distinguish your business from another business.
Intellectual Property Agreements include:
Non-Disclosure Agreements (NDAs) and confidentiality agreements (or clauses) are designed to protect confidential information, including trade secrets .
NDAs are commonly used in various business transactions, including mergers and acquisitions and business sales, where confidential information is given to another party as part of the transaction. A well drafted NDA will ensure that information, such as business plans, trade secrets, and proprietary data, is not disclosed to unauthorised third parties.
Confidentiality clauses are commonly used in employment agreements, licence agreements and franchise agreements, where one party has access to the confidential information of the other party on a day to day basis.
Confidentiality agreements and NDA's are not always enforceable and must be drafted carefully to ensure that they only protect information that can legally be protected by agreement.
To learn more about Non Disclosure Agreements (including their enforceability) read my article Confidentiality Agreements: A Comprehensive Guide
Licence agreements and franchise agreements allow intellectual property owners to grant permission to third parties to use their intellectual property under specific conditions. The intellectual property licensed can include anything from software and technology to artistic works and trademarks.
A licence agreement will specify the territory in which the licensee is able to use the intellectual property, the term for which the licensee is able to use the intellectual property and the licence fee payable by the licensee to use the intellectual property.
Similarly to a licence agreement, a franchise agreement will specify the territory or site in which the franchisee is able to use the intellectual property, the term for which the franchisee is able to use the intellectual property and the royalty fee to be paid.
Generally, under either a licence agreement or a franchise agreement, if the licensee or the franchisee makes improvements to the intellectual property, those improvements will become the property of the licensor or the franchisor. That is, even if a licensee or franchisee makes improvements to the intellectual property it is unlikely that the licensee or the franchisee will own those improvements.
Further, a franchise agreement may also provide that the franchisee does not have any goodwill in the business that the franchisee operates using the intellectual property. Particularly if the goodwill in the franchise business has been generated from the use of the intellectual property. While a franchisee will usually be able to sell the franchise business, the sale will be subject to strict conditions.
Our article Licence Agreements vs Franchise Agreements considers the differences between these two types of agreements.
Assignment agreements transfer ownership of intellectual property from one party to another. Unlike licence agreements or franchise agreements, which grant rights to use the intellectual property, intellectual property assignment agreements involve the transfer of the intellectual property rights.
These agreements are often used in situations where a company acquires another company's intellectual property assets, or when an individual sells their intellectual property to a business.
Key elements of assignment agreements include the description of the intellectual property being transferred, the terms of the transfer, and any warranties or representations.
Joint ownership and collaboration agreements are used when multiple parties work together to create intellectual property. A joint ownership and collaboration agreement will specify how the intellectual property is owned. Each owner can have equal shares, or shares may vary depending on the person's contribution to the creation of the intellectual property.
Unless the joint ownership agreement provides otherwise, if the intellectual property is co-owned, an owner will not be able to licence the intellectual property without the agreement of the co-owner/s.
Joint ownership and collaboration agreements are common in research and development projects, artistic collaborations, and joint ventures. They typically address issues like contribution, revenue sharing, decision-making, dispute resolution, and the handling of future developments.
Intellectual Property Agreements deal with the creation, use and protection of intellectual property. They can include a range of agreements from NDA's to licence agreements and intellectual property assignment agreements.
The use of Intellectual Property Agreements to protect intellectual property should be part of a broad strategy which also includes registration if applicable and appropriate business systems to protect any information that is confidential.
In addition, the use of restraint of trade or non-competition clauses can be an effective additional protection measure.
If you would like to read more on the topic see our articles:
Disclaimer
The information in this article is general in nature and is not intended to address the circumstances of any person or other entity. Although we do our best to provide timely and accurate information, we do not guarantee that the information in this article is accurate or that it will continue to be accurate in the future.