According to the Merriam-Webster Dictionary intellectual property is property (as an idea, invention, or process) that derives from the work of the mind or intellect; or an application, right, or registration relating to this. If you ask me what intellectual property is, I would say it is your right to obtain a patent, trademark, copyright, or trade secret for your unique idea. This definition requires one to know what each of these rights is and what they protect.
A patent provides an inventor with a right to exclude all others from making, using, offering for sale, selling, or importing the patented invention for a limited time. There are three types of patents: design, utility, and plant. Design patents protect the ornamental appearance of articles of manufacture or machines. An example of a well known design patent is the contour shape of the Coca-Cola bottle. This shape is trademarked as well, so a design can be both patented and trademarked. Design patents are protected for 14 years from the time of grant. A utility patent protects a machine, article of manufacture, composition of matter, or process. Most patents are utility patents and cover a wide range of areas from a mechanical part to a complicated pharmaceutical drug. Utility patents have a patent term of 20 years from the date of filing. The last type of patent is a plant patent. A plant patent is granted to an individual who has invented or discovered and asexually reproduced a new type of plant. Tubers or a plant found in an uncultivated state cannot be patented. Plant patents have a patent term of 20 years from the date of filing. Typically, an individual seeking patent protection files an application with the United States Patent and Trademark Office (USPTO). After submission, the application is examined for its utility (it must be useful), its novelty (it must not have been known or used by others and not previously patented or described in a printed publication one year prior to the date of filing), and it must not be obvious to an individual with ordinary skill in the art of the invention. As this is a very complex and complicated process it is recommended that an individual search previous applications and patents and seek an opinion from a patent attorney about their inventions prospects for patenting. An application is then examined and prosecuted until a final patentability determination is made. From start to finish this process may take several years.
A trademark is a word, name, symbol, or device which indicates the source or origin of a good and is capable of distinguishing that good from the goods of others. The symbol ™ is used to designate a trademark. Often confused with a trademark is a service mark. A service mark is similar to a trademark, but relates to a service. The symbol ℠ is used to designate a service mark. Trademarks and service marks distinguish the goods or services of competitors from one another, serve as a guaranty of consistency and quality, and can help to advertise and sell the good or service. The granting of a trademark or service mark protects its owner from sales diversion, disparagement of name, dilution of the symbol of origin, prevents confusion in the marketplace, and promotes honesty and fair dealing. The mark can take many forms as long as it is distinctive. For example it can be a single word, a word string, a slogan, a name, letters, numbers, a drawing, a design, a sound, a device, a color, etc. To receive federal protection for a trademark or service mark an application must be filed with the USPTO, where it is examined to determine if it serves to distinguish the good or service from others. After receiving federal protection the mark owner can then use the federal registration symbol ®. As with a patent, it is recommended to have an intellectual property attorney review and search existing trademarks and applications to determine to possibility of receiving federal protection.
A copyright protects an owner from unauthorized duplication of their original work. Things that can be copyrighted are literary works (including software), musical works (including accompanying words), dramatic works (including accompanying music), choreographic works, pictures, sculptures, graphics, motion pictures and other audiovisual works, sound recordings, and architectural works. This list is not meant to be all inclusive, but simply lists the most common categories of works. A copyright gives the owner of the work the right to reproduce the work, create derivative works, distribute copies of the work, perform the work, and display the work publicly. A copyright exists for 70 years from the death of the author for individual works and 95 years from the date of first publication for works made for hire. Copyrights do not have to be registered to be protected, but can be registered to provide evidence of ownership. Federal registration is a requirement for filing an infringement action based upon a work originating in the United States and is a prerequisite for recovering statutory damages. To provide notice of copyright an individual must use the symbol ©, the words "copyright" or "Copr.", provide the year of publication, and the name of the owner. For example © 2009 Geiser Law, PLLC.
A trade secret is any information, including a formula, pattern, compilation, program, device, method, technique, or process that has independent economic value from not being generally known and readily ascertainable by proper means by other people who can obtain economic value from its disclosure and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Two of the most well known trade secrets are the formula for Coca-Cola and the original recipe to Kentucky Fried Chicken. These trade secret rights can be lost by unrestricted disclosure by the owner, a failure to maintain its secrecy, and independent creation and disclosure of the trade secret by another (i.e. reverse engineering).
This post is merely a brief summary of each of these areas of intellectual property. As can be expected, each of these areas has its own unique qualities, rules, and requirements. Therefore, it is important to seek the counsel of an attorney familiar with this area of law. If you have any questions please do not hesitate to contact Geiser Law, PLLC.
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