Understanding the Importance of Intellectual Property
Intellectual property (IP) comprises the creativity and innovation that people develop and own, much as they own physical property such as land, a building, or a business. Intellectual property is also a legal concept that enables persons to control and benefit from their creativity and innovation. There are four main classes of IP: inventions, such as the telephone; written materials, such as books and plays; brands and symbols, such as McDonald's or Ford; and artistic works such as paintings or sculptures. This article outlines and describes each type and briefly describes how to obtain the protection each one deserves.
Obviously, owners of intellectual property have the right to benefit from it. They can control and direct its use, allow others to use it under a licensing agreement, lease it, or sell it. Since IP can be easily stolen or used without permission, governments have enacted intellectual property laws to define the rights of IP owners and provide owners with the ability to protect and defend them with legal action if necessary. Some of these rights apply automatically, while others require a registration process to become legally enforceable. It is almost always necessary to register before disclosing an IP concept to others, or the protection will not exist. The U.S. Patent and Trademark Office and the U.S. Copyright Office of the Library of Congress are the government agencies responsible for issuing patents and registering trademarks and copyright.
A patent gives an inventor the right to stop others from making, using, or selling his or her invention without permission for a limited period. In the U.S., the term of a new patent is generally 20 years, beginning on the date its application is filed. It's important to know that patent rights are specific to the country that grants them, so they can vary. Nor do all countries honor each other's patent laws.
There are three types of patents:
- Utility patents may be granted to any person who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof."Process refers primarily to any technical or industrial process; manufacture to any manufactured article; and composition of matter to chemical compositions, including new chemical compounds.
- Design patents may be granted to any person who invents a new, original, or ornamental design for any manufactured article.
- Plant patents are granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
To qualify for a patent, the invention must be new. It cannot have been heretofore known or used in the United States, patented, or described in print in the United States or a foreign country before its invention by the person applying for the patent. It also cannot have been patented or described in print anywhere, or been in public use or for sale in the United States, more than one year before the application for a patent is filed in the United States. In short, if the inventor describes the invention in a printed publication, he or she must apply for a patent within one year or lose the right to patent protection.
A patent cannot be granted for an idea, only for an actual machine, process, article, or matter that is described in careful detail. The laws of nature, physical phenomena, and abstract ideas are not patentable, either.
While inventors may prepare their own applications for a patent, most hire a registered patent attorney or agent to prepare the applications and deal with the Patent Office; doing so is recommended. The U.S. Patent Office publishes a directory of registered patent attorneys and agents, or you may look for one in Yellow Pages directories. Although an inventor gives power of attorney in authorizing a patent attorney or agent to act on his or her behalf, the inventor is still free to contact the Patent Office about the status of an application directly and may remove the attorney or agent by revoking power of attorney at any time.
All applications the Patent Office receives are numbered in sequence, and it issues a filing receipt for each that includes application number and filing date. For more information, you can download a brochure, entitled "General Information Concerning Patents," from the U.S. Patent Office web site.
A copyright is an automatic right that protects the creator of original works. Copyrights cover literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. Perhaps most important, a copyright gives the creator or first owner of such original work the legal right to control how the material can be used.
At present, a copyright for artistic, dramatic, literary, and musical works originating within the United States is enforced for the author's lifetime plus 70 years. It enables the owner to control how the work is presented and distributed, including copying, adaptation, public performance, broadcasting and other means of distribution, including the Internet and e-mail. An owner also may transfer ownership of the copyright to someone else. Some unlicensed use of a copyright work is allowed, however, under a concept known as "fair use." This includes limited photocopying and quotation of excerpts for teaching or review purposes. Note, though, that "limited" can be open to interpretation.
Copyright comes into effect immediately upon the creation and recording in some way of a work. Marking one's work with the copyright symbol ((c)) followed by the date and the creator's name is not legally required in the U.S. or in most other countries. However, its appearance may help if cases of infringement arise. Having evidence that one created the work at a given time is also useful protection. Although not necessary, a work's creator may register it with the U.S. Copyright Office.
A trademark is a distinctive word, name, symbol, or device that makes the goods and services of a business immediately recognizable. Although it is not necessary, registering a trademark gives a business the right to prevent others from using an identical or strikingly similar mark on goods and services that are the same as (or similar to) its own. If a competitor's mark could cause "confusion in the marketplace," as a court might conclude, trademark registration can be an effective tool to keep it out of the marketplace.
Notably, generic titles of works are harder to protect, such as
Whenever one claims the right to a mark, he or she may use the trademark symbol (tm) whether or not an application is on file with the U.S. Patent and Trademark Office. However, one may only use the symbol (r) after actually registering the trademark with the Patent Office, not while an application is pending.
To register a trademark, one can use the Trademark Electronic Application System (TEAS) to file the required application online, mail it, or hand deliver a paper application to the U.S. Patent Office. No attorney is necessary; once again, however, you may choose to hire an attorney for representation and to file the application. As often as not, an attorney's expertise is well worth the price.
A federally registered trademark can last indefinitely, provided the mark is used continually and its owners periodically file affidavits of continued use or apply for renewal. On the other hand, if trademarks are not protected or are taken for granted, in time they can be considered "in the public domain" and thus lose protection. Xerox Corporation, for instance, diligently protects the name Xerox as its brand of copiers and office products. More information is available in "Basic Facts About Trademarks," a brochure available from the U.S. Patent Office web site.
In its early stages especially, intellectual property can be extremely fragile and subject to theft. While it may seem unnecessary, it is a good idea to have potential suppliers, advisors, and partners sign a non-disclosure letter before sharing your idea. Prospective allies are almost always happy to comply; indeed, many are apt to be flattered and work harder on the idea's behalf.
Make it a point to mark your products as protected, and keep records of the design and the registration process. This will strengthen any case should a registration be challenged or design rights infringed. Similarly, keep dated copies of final drafts of written materials that identify you as the original author.
It is a good idea to take out insurance against the cost of bringing legal action for infringement of rights; and it can be money well spent, too. Legal fees can dwarf insurance premiums in no time. "Errors and omissions" insurance can afford writers and authors the same kind of protection against someone who sues over alleged libel or slander.
Stim, Richard. Patent, Copyright & Trademark: An Intellectual Property Desk Reference. 8th ed. NOLO, 2006.
U.S. Copyright Office of the Library of Congress: www.copyright.gov
U.S. Patent and Trademark Office: www.uspto.gov