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Intellectual Property (IP) is generally understood to include patents, trade marks, copyright, and trade secrets; however, a definition of IP in a contract may also include confidential or proprietary information. It may consist of registered as well as non-registered IP, domestic as well as foreign IP; however, this may not always be the case. Hence, it is crucial to start with how IP needs to be defined in a given contract so that the parties are on the same page about what it covers and excludes.
Contracts typically include a definition of IP. The parties usually desire this definition to be as broad as possible, explicitly concerning a description that may be included in confidentiality or non-disclosure agreements. The definition should avoid being limited to a registered IP, as this might unintentionally exclude trade secrets or confidential information from being addressed. There also may be instances where IP may be defined as only those items that are reduced to writing or identified specifically by the parties, but this can be dangerous, such as in instances where ‘know-how’ may be considered as IP.
