The Intersection of Intellectual Property and Government Law

Although some intellectual property issues transcend sectors, public‐sector intellectual property brings unique issues and challenges not found in the private sector, in part due to its heavy basis in statute. Relevant subjects include local governments’ ownership and enforcement in Florida, contracts involving intellectual property, and immunity for infringement. This Article begins by discussing different types of intellectual property: patent, trademark, copyright, and trade secret. It moves to local governments’ ownership and enforcement in Florida, sometimes contrasting with the rights private applicants enjoy. Major ownership issues include the difference between inventorship and ownership for patents; trademarks’ dependence on statute; limitations of copyright; and the importance of trade secrets to states. Regarding enforcement, the Article covers the importance of awareness and standing to assert enforcement rights. As for contractual issues, the Article focuses on employment contract issues, honing in on patents. Assignment of ownership rights follows a general rule subject to exception, but determining ownership right as between an employer or an employee depends on factor‐based tests in certain circumstances. Independent contractor status may complicate things; agency law, possible fiduciary duties, and other factors may come into play. Finally, infringement is much different in the public sector than in the private. As decided in a controversial case, the United States Supreme Court determined that states are immune to suit for intellectual property infringement without their consent.