Intellectual Property Defined: Patents, Trademarks, Copyright, and Trade Secrets

Creating Intellectual Property
William Iven

Understanding Intellectual Property

Intellectual property is a broad term used to describe intangible property rights. The easiest visualization is to compare intellectual property with real property. Real property defines rights in something tangible and concrete, such as real estate. In contrast, intellectual property rights are less concrete and protect inventions, goodwill, creative expression, and business know-how. Under the umbrella of intellectual property, we have patents, trademarks, copyright, and trade secrets.

What are Patents, Trademarks, Copyrights, and Trade Secrets?

What is a Patent?

Patents protect inventions, new and useful structures or methods. When a patent is granted by the United States Patent and Trademark Office (USPTO), the inventor receives property rights in the invention. In most cases, the patent will remain in effect for 20 years from the filing date (or priority date, if applicable). Typically, maintenance fees are required at 3.5, 7.5, and 11.5 years to keep enforceability of the patent. U.S. patents are only in effect within the United States and its territory.

With patent rights, the patent holder can stop others from making, using, offering for sale, or selling the protected invention within the U.S. or importing the invention into the U.S. Therefore, a patent grants a negative right, the right to exclude others. No patent is required to simply make or use a product, so long as the product doesn’t infringe another patent.

Types of Patents

1) Utility patents protect any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof. A utility patent application can either be provisional or non-provisional. A provisional application is a placeholder for a non-provisional for up to one year. The non-provisional application will actually be examined for patentability by the USPTO.

2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture.

3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

What Is a Trademark?

A trademark can be a word, name, symbol, design, sound, or combination that is used in commerce to identify the source of the goods or affiliation. The identity of the source or affiliation of the goods is helpful to consumers to identify the quality of the product and any message behind the product. A service mark is similar to a trademark, but identifies the source of a service rather than a tangible product. “Trademark” and “mark” can be used to refer to trademarks and service marks.

Trademark rights  protect  the goodwill associated with the source of the goods – i.e. the quality of the goods and the company message. Therefore, trademark rights may prevent others from taking advantage of established goodwill through use of a confusingly similar mark. However, others can make or sell the same or similar goods or build a similar company message behind a different mark. This is because another’s goodwill is not being used and reputation of an established brand is not being tarnished.

Although trademarks exist upon use, the common law rights are very geographically limited. USPTO registration is available for trademarks used in interstate or foreign markets. U.S. registration helps secure nationwide rights in the trademark. The registration procedure for trademarks and general information concerning trademarks can be found in the separate book entitled “Basic Facts about Trademarks.” (http://www.uspto.gov/trademarks/basics/Basic_Facts_Trademarks.jsp).

What is a Copyright?

Copyright establishes rights for authors in the creative expression of an idea. This provides rights in “original works of authorship.” Such works include literary, dramatic, musical, artistic, and other creative works. Copyright exists upon fixation of the work in a tangible medium that is human or machine readable. For example, recording a theatrical performance or writing out a script. Copyright grants the owner exclusive rights to reproduce, distribute, publicly perform, publicly display, or to create derivative works.

Importantly, the “creative expression” that is protected does not protect the underlying idea. Therefore, describing an invention could provide copyright in the creativity of the description, but would not prevent others from making and using the invention. Additionally, copyright in a theatrical work may not necessarily prevent others from using a similar story arc. Copyright can be registered with the Copyright Office of the Library of Congress.

What is a Trade Secret?

A trade secret comprises business know-how, such as efficient manufacture of a product, distribution, market integration, etc. Other examples can be formulas, recipes, patterns, compilations, programs, devices, methods, techniques, or processes. Trade secret protection can be used to prevent others, such as employees, former employees, or other companies, from obtaining and using the trade secrets to compete. Although trade secrets are not formally registered, the U.S. provides for actions in federal court under the Defense of Trade Secrets Act of 2016.

Proving a trade secret includes proving that the information is secret, that the information is commercially valuable because it is secret, and that the information is subject to reasonable steps to keep it secret. For example, non-disclosure and non-compete contracts, separation of knowledge within the company, and internal controls to prevent dissemination can help. Unlike patents, trade secrets do not expire as long as secrecy is maintained. However, trade secrets do not prevent others from using the information in the event of independent discovery. More info on trade secrets can be found here: https://www.uspto.gov/patents-getting-started/international-protection/trade-secret-policy.

 

If you need help with your patents, trademarks, copyright, or trade secrets, please contact us.

Jeremy I. Maynard
Registered U.S. Patent Attorney
Troutman & Napier, PLLC
4740 Firebrook Blvd.
Lexington, KY 40513
Tel: 859-253-0991
Web: Troutman & Napier, PLLC
Originally Published at: Maynard.Law
Originally Published by: Maynard.Law

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