Intellectual property (IP) is a legal term that refers to creations of the mind, such as inventions, literary and artistic works, designs, symbols, names, and images used in commerce.
The four major types of intellectual property include:
- Trade Secrets
The following article will discuss these types of intellectual property.
Copyrights protect literary, artistic, and musical works, as well as certain other intellectual creations. The copyright holder has the exclusive right to make copies of the work, prepare derivative works based upon the copyrighted work, and sell, lease, or otherwise distribute the work to the public.
Copyrights allow owners to enjoy the fruits of their creations. Owning a copyright allows the copyright owner exclusive rights to copy, print, publicly perform, play or display his/her original work. The copyright owner can also license any portion of the bundle of copyright rights to others for value.
Copyrights protect music, speeches, presentations, images, paintings, text, novels, software text, object code, and other authored works fixed in a tangible medium.
Copyrights encourage the creation of authored works for monetary gain. Copyrights have built industries such as those creating motion pictures, sound recordings, software, art, and animation, to name a few.
A copyright will continue for 70 years after the author’s death if the author is a person. If the author is a corporation or is anonymous, a copyright will continue for 120 years from its first publication. Since copyrights last for a long time, they can accumulate significant wealth, which is one reason for the successes of the above industries.
It is much easier to copy than create. Without a copyright system, people would not put in the time, effort, and cost to create movies, records, and software if they would not have rights to exclude others. If others were allowed to copy with impunity, considerably fewer authored works would be created.
Trademarks protect words, phrases, logos, and symbols used to identify goods and services. A trademark can be a word, phrase, symbol, or design that distinguishes one company’s products from those of another company.
Trademarks identify a source of goods or services. It is a tool used by consumers to find and purchase specific goods/services. The trademark system is premised upon the idea that each trademark is identifiable and different enough from other trademarks to prevent the consumer from being confused.
Since trademarks become synonymous with the source of goods/services, they typically become associated with the corporate identity. Trademarks are valuable corporate assets.
One gets trademark rights by selling a product/service in commerce using the trademark. These rights are acquired without filing any papers with the government and are referred to as ‘Common Law’ trademark rights. Filing a trademark application and successfully going through the examination process results in a federal registration for the trademarks. Federal Registration gives the trademark owner:
- the presumption of validity,
- the right to use the federal courts to enforce his/her trademark,
- the legal presumption of owning the trademark,
- the legal presumption to use the trademark,
- the ability to register the trademark with the Customs and Border Protection Agency,
- to use the registration for foreign filing,
- and other rights.
Patents protect inventions and give the inventor the right to exclude others from making, using, selling, or importing the invention for a limited time. To obtain a patent, an invention must be new, useful, and not obvious.
Patents are typically the strongest form of Intellectual Property. Unlike copyrights which cover a single expression of an idea, patents cover the entire idea, as literally set forth in the claims. In the U.S., one applies for a patent by filing a patent application with the U.S. Patent and Trademark Office in Alexandria, VA. The USPTO performs a search, and the application is examined by a U.S. Patent Examiner. The patent application is typically rejected on references found in the search.
The inventor (and patent attorney) are allowed to have an interview with the Patent Examiner to discuss the invention and rejections. The Inventor/Attorney can amend his/her claims and submit the amended claims indicating how they differ from the cited references in structure, function, and advantages. The Inventor/Attorney can also submit legal arguments indicating why the invention is novel and non-obvious. The Examiner may then supplement the search and provide additional rejections. The Inventor/Attorney may then make additional amendments and file additional legal arguments. This process, called ‘prosecution’, usually continues for 2.5 -3 years until the patent application issues. Many patent applications do not issue.
A patent application requires the inventor to teach the reader to make and use the invention. Making and using the invention must be described with enough detail to be enabling. Patent applications are published making them available in all countries. However, the patent owner can only prevent those from making using and importing in countries in which he/she has filed a patent application. Filing patent applications in many countries can become quite expensive, and the owner must make choose which countries in which to file. Therefore, the inventor has taught the world how to make and use his/her invention but can only stop them from doing so in the countries in which there is a patent. This causes competition in countries where there are no patents due to the inventor’s disclosure in the patent applications.
Trade secrets are confidential information that provides a company with a competitive advantage. A trade secret can be a formula, pattern, compilation, program, device, method, technique, or process. Trade secrets are protected through non-disclosure agreements and other contractual measures.
With certain inventions, improvements, or innovations that cannot be reverse engineered, the inventor can choose to have the government protect the idea (through the patent process) or the inventor himself/herself protect the idea as a trade secret. Trade secrets require secrecy. Trade secrets are helpful when a product has applicability in many countries. Trade Secrets do not have the disclosure problems of patents and are helpful when the invention cannot be easily reverse engineered.
Handling IP Yourself
Intellectual property is covered by an area of the law that details the rights of those who create original works. It is a complex area of the law that deals with protecting intellectual creations. While it is possible for you to file for intellectual property protection, it is generally not advisable. Most are better off working with an intellectual property attorney.
It would be best if you worked with an intellectual property attorney for several reasons. For example, making the novel aspects of an invention public more than a year before filing a patent application will permanently cause the inventor to forfeit all his/her patent rights.
Disclosing your invention to another without the proper agreement in place could cause the person to own improvements they conceive.
Improperly maintaining your trademarks can cause you to lose your trademark rights. Disclosure of confidential information without a Non-disclosure Agreement can extinguish your trade secrets.
A decent IP attorney would never allow these to happen. Be smart.