What is Intellectual Property?
Intellectual Property refers to creations of the mind, of artistic expression, and the embodiment of ideas. There are four main areas of Intellectual Property.
Patent law protects the embodiment of new and novel ideas, processes or things and provides the inventor with a limited monopoly over the invention, meaning a period of years of exclusivity. Some of the things eligible for patent protection include new plant strains, ornamental design elements, machines, processes, chemicals, materials, even computer algorithms and some business methods.
Patents are not secret. To obtain a patent one must describe and disclose the invention to the USPTO. Only new and novel aspects of an invention will be protected. This means one can improve existing technologies and obtain a monopoly on the improvements. The patent filing process involves drafting detailed descriptions of the invention, identifying prior art and similar inventions and claiming new and novel aspects in detail. Examination of a patent application in the USPTO can take up to several years. Patents generally last 20 years and give the owner exclusive rights to use and/or exploit the invention. A patent owner can manufacture or use the patented mater itself or it can license others to use and exploit it. The Patent Act provides remedies for infringement, including injunctive relief, damages and disgorgement of profits.
Trademarks are the names, designs, symbols and even colors used to distinguish the source of goods from others. Trademark law provides the exclusive right to use a mark in connection with specific goods or services. This protection applies against use of not only identical marks, but also marks that are confusingly similar in terms of sound, look and connotation. Trademarks vary in strength. The stronger a mark is, the greater its potential scope of protection. The strongest marks include coined terms, like XEROX, and ordinary words used in unique ways, such as SATURN for automobiles. These marks are broadly protected against similar uses. The weakest marks are descriptive and generic terms, like SOFTWARE or CHEESEBURGER, and these receive only very narrow protection.
In the United States, trademark rights are acquired upon use of a mark. Registration is not required, but does provide additional rights and remedies under the United States Trademark Act. Federal registration is accomplished by filing application to register a mark with USPTO, identifying the goods/services it covers and showing use of mark in commerce. A trademark registration will last ten years and can be renewed for successive ten year terms as long as the mark is still in use. Thus. unlike patents and copyrights, a trademark has a potentially unlimited lifespan and will remain alive and enforceable as long as a mark is in use.
The Trademark Act provides a number of rights and remedies against infringement, including provisions for injunctive relief, disgorgement of profits, statutory and treble damages as well as, in extraordinary cases, recovery of attorney fees.
Internationally, trademark rights are territorial, meaning a registration is only valid and enforceable in the country that issues it. Some countries only recognize registered rights, no matter who is actually using a mark. Other countries will recognize use based rights and in these jurisdictions the first user of a mark will have the most superior rights. However, since most jurisdictions recognize only registered rights, it is important to consider International registrations early.
Copyright law protects the original expression of ideas and provides a number of exclusive rights. However, it only protects expressions, not underlying ideas. Many different types of expression are protectable, including literary works, paintings, sculpture, sound recordings, film and photographs, software code, even building plans and ship hull designs.
Copyright protection provides the owner with the exclusive right to reproduce and make derivative copies of the copyrighted material. The right to reproduce includes not only the right to control who uses or displays copyrighted material, but also under what circumstances and on what terms. The exclusive right to reproduce prohibits unauthorized use or copying of copyrighted material. “Derivative copies” means subsequent creations different from the original copyrighted material, but significantly related or naturally flowing therefrom. This usually relates to such things as a sequel or reproduction of a work in a different medium. Additionally, copyright also provides exclusive rights to exhibit, display and perform.
Use of Copyrighted material without authorization can constitute infringement. When considering using content created by others, it is important to obtain clearance to use those rights. Some clearinghouses will provide license rights on behalf of the copyright owners, such as Getty Images, Harry Fox, and ASCAP.
Copyright protection in a work accrues automatically upon publication of that work. Registration is not required to have some measure of rights. However, Federal registration provides the right to bring suit under Copyright Act, which has greater potential damages than common law rights. To register a copyright all that is needed is to file an application with US Copyright Office and deposit copy of work with Library of Congress.
Determining ownership rights in copyrighted material is important. Generally, the creator of the work usually owns copyright in the work. This becomes important in the context of working with consultants, contractors, designers, ad agencies and the like, as they will technically own the copyright in anything created on your behalf. Therefore, to obtain rights to work done on your behalf, a Work For Hire agreement is required, which is a written agreement between parties that explicitly transfers all copyright.
Copyright registration is fairly simple. Essentially, a form must be completed that identifies the work and the owner of the rights at issue. This form is filed with the Copyright Office along with a copy of the work subject to copyright. A registered copyright will last for the life of the author plus 70 years. Anonymous works and Works done For Hire can last for up to 120 years after creation. Copyrights cannot be renewed and after the rights expire, the work is in public domain and free to use.
Trade secrets are those proprietary things and information that a business uses and relies upon to give it a competitive advantage over those who do not have the same information. Trade secrets take many different forms including machinery, manufacturing processes, customer and supplier lists, price lists, formulas, or any other compilation of information that gives a business its competitive edge.
To qualify as a trade secret, information must be secret and proprietary. That is, it must be the type of information that a reasonable business would not want to disclose to competitors. In addition, a business has a duty to try to protect its trade secrets from disclosure to others, since disclosure can waive trade secret status. Some ways to protect information include warehousing, providing information on need to know basis only, encrypting data, and holding information under lock and key. For example, the famous recipe for Coca-Cola is a closely guarded secret, known in its entirety by only a handful of people and kept in a vault.
Because public disclosure will waive trade secret rights, Non-Disclosure Agreements are important, especially to startups. A Non-Disclosure Agreement binds a party to keep information confidential and to not use for its own commercial purposes. These agreements are generally enforceable. Theft of trade secrets could subject a party to injunctive relief to stop certain practices and damages. While extremely important when dealing with third-parties, these types of agreements are also relevant with regard to employees, especially those with access to sensitive information, to prevent retention of information if the employee leaves to work with a competitor.