Intellectual Property (IP) refers to a unique type of creation in the mind for which a number of exclusive rights are recognized under a number of corresponding laws. Within the intellectual property law, the owners’ posses exclusive rights to many kinds of intangible assets which may include artistic works, discoveries, inventions, symbols, and designs. In many jurisdictions, the common types of intellectual property rights are copyrights, industrial design rights, patents, and trade secrets (Haynes, 1995).
Gomulkiewicz (2010) argues that intellectual property disputes may involve intellectual property like copyrights, patents and technical innovations that many businesses need to adequately protect. Such disputes may include securing software licenses; negotiation, enforcement and defense of confidentiality and non-compete agreements; and drafting and the negotiation of software development and marketing contracts.
This particular case involving Tonica Car Manufacturing and Systems Inc is an intellectual property dispute concerning royalty claim in the negotiation of software development, non-compete agreements, and marketing contracts (Torrance & Tomlinson, 2011).
In the first instance, the relationship that Tonica has had with System Inc have been cordial, to the extent that a verbal agreement was enough to let Tonica use the software system exclusively. Even with a change the change of management at Tonica, who needed formality in the investment, and given that licenses gives only limited use of the software. System Inc. could not have included the very strict clauses to their new customer, as they have had a brief history of friendly relationship. Systems Inc. had earlier risked Tonica using the software in unfair means like distributing it to other parties, or may be as was not intended.
This is a change of heart from the part of System Inc, to have decided to take the matter to court, which they could have easily settled the way they had started the sale agreement. This is a case where Systems Inc are infringing on the nature of their business relationship. Tonica may decide to withdraw from the agreement, and will not end up the loser. Though, system Inc risks losing a customer.
According to Gomulkiewicz (2010), valuation of technology is often subjective, though it may reflect its historical cost as adjusted by depreciation and the value directly related to its expected profitability. Since technology is an intangible asset, the valuation criteria should establish parameters within the financial arrangement could be negotiated, not including only amounts, but also how the payments are to be made. The income approach is most appropriate in determining the respective shares the parties should each have of the benefits then find a royalty formula, as a rule of the thumb; the 25% rule should be applied. Assuming the income accrued by Tonica will be $6 million annually and then the royalties that System Inc will receive is $1.5 million yearly.
If Tonica loses the case,
Figure 1: conceptual framework
If the matter goes to court, Tonica should win the case, System Inc could not safeguard their intellectual property right by entering into a verbal contract. It is the responsibility of organizations to ensure that the software they build and sell is done within a responsible policy framework for the use of their software and protection of their intellectual property. Withdrawal from negotiation is not the same as failure (Gomulkiewicz, 2010).
Gomulkiewicz R, (2010). Enforcement of Open Source Software Licenses: The MDY Trio’s Inconvenient Complications. Yale J. Law & Tech. 106
Torrance, W. &, Tomlinson, (2011). Property Rules, Liability Rules and Patents: One Experimental View of the Cathedral. Yale J. Law & Tech. 138
Jack M. Haynes (1995). Computer Software: Intellectual Property Protection in the United States and Japan. Byline: Issue: VOL. XIII. NO. 2
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