Intellectual Property
What is Intellectual Property?
Intellectual property is non-tangible property, products of the human mind and intellect, that are protected by law. Some examples of intellectual property include:
- A business logo or slogan
- A piece of music or work of literature
- A new design or invention
- Computer software
- Protected business information, such as a formula, process, or sales method
Common law does not traditionally protect these things, but modern intellectual property rights do. Both federal and state laws protect intellectual property in four categories: copyrights, patents, trademarks, and trade secrets.
What is a Copyright?
A copyright is a legal right. It provides you with the exclusive right to reproduce a work, to distribute it, sell it, or publish it. These are usually creative works, such as a novel, a sound recording, a dramatic work, architecture, software, or a work of art.[1]
You cannot copyright ideas, concepts, systems, or processes. If you include any of these things in a written or other creative work, the work is protected by copyright but not the idea. For example, you can copyright a book about a family of talking cats, but you cannot copyright all stories about talking cats. Others can use that idea to create their own works.[1]
Copyrights fall under federal, not state law. The U.S. Copyright Act of 1976 protects copyrighted works. For copyright protection, you must register your work with the U.S. Copyright Office. The law originally outlined protections for writings, but with time the definition has expanded to include more than just books. Copyrights last 70 years after the death of the creator.
What is a Patent?
A patent is for the invention or design of a tangible thing. It grants the right to exclude others from using, making, selling, or distributing the invention for a period of time. The U.S. Patent Act is the federal law that protects inventions.[2]
If you have an invention, you can register it with the U.S. Patent and Trademark Office (PTO) to receive a patent. An invention must meet five requirements to qualify for a patent:[2]
- A patentable subject matter.
Subject matter eligible for a patent includes a process, machine, manufacture, or composition, or an improvement on any of these. Natural processes, physical phenomena, and abstract ideas are not patentable. - Utility.
The invention must be useful to qualify for a patent. It must be useful to someone skilled in the particular subject matter, and it must have a real-world use. - Novelty.
To get a patent, the invention must be new, something not previously described or patented. A patent request may be denied if the inventor waits too long and someone else brings a similar invention in the previous year. - Nonobviousness.
This requirement means that the invention must not be obvious to someone skilled in the applicable subject matter. This can be a difficult requirement to prove or determine. It is somewhat subjective. - Enablement.
When filing for a patent, the inventor must describe the invention. It must be detailed and clear enough for someone skilled in the subject matter to make and use it. The description must also include the best way to use the invention.
The length of a patent depends on the type. Utility patents for new machines or processes last 20 years. Design patents are valid for 14 years. Plant patents for new varieties of plants, last 17 years.
What is a Trademark?
A trademark is a word, name, or symbol used by a business to identify its products and distinguish them from those of another manufacturer.[3] For instance, one of the world’s most famous and recognizable trademarks is the Nike swoosh. The company trademarked the symbol in 1974, and it identifies authentic Nike products. It is illegal for anyone else to attempt to pass off athletic products as Nike by using the symbol.
Both federal and state laws establish and protect trademarks. The Lanham Act of 1946 is the main federal law regarding trademarks. It was amended in 1996 and is the most commonly used source of trademark protection. Most state protection comes from common law of unfair competition.[3]
To trademark something, it must meet two criteria: It must be used in commerce, and it must be distinctive and not too similar to another trademark. Although trademarks are usually names and symbols, a few legal cases expanded the protection to sounds, fragrances, and shapes.[3]
What is a Trade Secret?
A trade secret is business information that gives a company an edge or advantage over its competition.[4] They keep it secret to retain that advantage. A trade secret may be a process, a sales strategy, a business plan, a recipe or ingredients, or a client list. A famous example of a trade secret is the recipe for Coca Cola.
Businesses cannot register trade secrets like copyrights, trademarks, or patents. Instead, they must take security measures to protect the secrets. State common laws regarding unfair competition usually govern cases of stolen or leaked trade secrets. A trade secret is considered protected under these laws if it is a secret, is commercially valuable, and if the company took reasonable steps to protect it.[4]
Intellectual property is an area of law that often applies to businesses and impacts individuals who create things or ideas. If you have something to protect or believe your intellectual property has been stolen or misused, contact an experienced lawyer.