Frequently Asked Questions
What is intellectual property?
The term “intellectual property” was coined as an umbrella term to identify the group of legal rights in things people create or invent. It is generally considered to include patent, trademark, copyright, and trade secret rights. Each of these forms of intellectual property is different and serves different purposes.
Although the intellectual property label is relatively new, the roots of the various forms of intellectual property extend back for centuries. The precursors to today’s trademarks grew out of the guild system in the middle ages. The first patent was issued in England in the fifteenth century. The first patent in the United States was issued in 1790. The value of patents and copyrights was recognized by the founding fathers, who crafted the Constitution to grant Congress the power to “promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries.”
The various forms of intellectual property have been recognized as extremely valuable assets that can provide a business with a tremendous competitive advantage and a means to distinguish itself in a crowded commercial landscape.
What is a patent?
A patent is a right granted by the federal government that permits a patent owner to prevent all others from exploiting its “invention” in the United States for a limited time. The public policy behind the patent system is to encourage invention and innovation by rewarding inventors for disclosing and sharing their inventions with the public by giving the patent owner a period of exclusivity to exploit its invention.
Patent protection is available for inventions that are new, useful, and non-obvious. To obtain a patent, a detailed application must be filed with the United States Patent and Trademark Office (USPTO), where it is subject to a rigorous examination process. Prompt consultation with a patent attorney after developing an invention is essential because rights may be lost unless an application is filed in a timely manner and carefully shepherded through the USPTO. Once issued, a patent protects a business’s competitive edge by preventing competitors from making, using, or selling the patented invention for a period of years, generally 20 years from the date the application was filed.
What is a copyright?
A copyright is intended to promote creativity by protecting original works of literary, artistic, or graphic expressions, such as books, paintings, photographs, music, records, plays, movies, software, technical drawings or blueprints, or architectural works. A copyright protects against the copying of the specific form of expression found in the protected work, but does not protect the idea or concept that is the subject of the work. Protection of an idea, on the other hand, can be done with patents.
A work enjoys copyright protection as soon as it is fixed in a tangible medium, such as paper, canvas, or a digital medium such as a computer hard drive. It is prudent to provide notice by using the copyright © symbol as a method of informing others of an intent to exercise control over the production, distribution, display, and/or performance of the work.
Registration is not necessary to claim the protection of copyright law. However, registration is required before commencing a copyright infringement lawsuit, and early registration enhances the remedies available against an infringer and provides for certain evidentiary presumptions.
While the basic concept of copyright protection may appear relatively straightforward, various questions frequently arise. When you hire a person to create something for you, who owns the copyright in the resulting work? Where is the line between the concept or idea and the protected expression of that idea? How dissimilar do two works need to be in order to avoid infringing the copyright of another? An experienced intellectual property attorney can provide the answers to these questions and more.
What is a trademark?
Trademarks are words, designs, slogans, or symbols that are used to identify the products or services of one business entity and distinguish them from the products and services of others. Trademark protection can sometimes be obtained for a product’s trade dress, which is the total image of the product or its packaging, potentially including features such as size, shape, color or color combinations, texture, graphics. The decor of a business and even particular sales techniques can sometimes be protected as trade dress.
Trademark law seeks to prevent confusion or deception by prohibiting others from using the same or similar trademark for the same or closely related products or services. Having an identifiable and distinctive mark or brand for a product or service can be an extremely valuable business asset, in part because, if properly used and protected, trademark protection lasts indefinitely.
As with copyrights, federal registration of trademarks is available and affords enhanced rights and remedies to trademark owners. An unregistered trademark can be identified with the “TM” symbol. However, once a trademark is registered with the USPTO, the ® symbol can be displayed in conjunction with the mark. Obtaining sound legal advice concerning the selection, clearance, and registration of trademarks increases the likelihood of developing enforceable, enduring and valuable marks.
What is a trade secret?
A trade secret is any information that derives value for its owner from being secret. The information can take innumerable forms, including a formula, pattern, compilation, program, device, method, technique or process. Whatever the nature of the trade secret, it must be capable of being specifically described and identified and must have been the subject of appropriate steps to keep it confidential.
While a patent gives a business a limited period of exclusivity in exchange for fully disclosing the invention, trade secret law provides protection for an innovation forever – but only to the extent that it is kept secret. The advantages of trade secret law are that it protects a broader range of subject matter than patent law (an unpatentable formula can be a trade secret), and it can, in theory, last indefinitely as long as the necessary steps are taken along the way to maintain its secrecy. The decision as to whether to seek a patent for a particular innovation or to retain it as a trade secret can be a difficult one.