Intellectual property is the general term used to describe those creations of the mind such as inventions, trademarks, symbols, images, copyrights, and literary and artistic works that are used in business. However, the grouping of the disparate areas of law that govern intellectual property can be misleading because it implies they share similar legal philosophies, are based on a common legal principle, and function similarly, but they do not.
There are two categories of intellectual property: industrial property and copyright. Industrial property includes inventions, trademarks, trade secrets, and industrial designs. Copyright encompasses literary and artistic works, drawings, paintings, motion pictures, photographs, books, poetry, artistic performances, and recordings. Both types may be implicated in commercial activities.
Intellectual property rights are not about objects so much as about the knowledge embedded in objects. Many times, businesses have knowledge that should be protected under various intellectual property laws, but they fail to realize the need exists or do not know how to obtain such protection in the first place.
PatentsA patent, gives the inventor recognized rights in a new, useful, non-obvious solution to a technical problem. An invention need not be complex or even one that it is represented in a physical object. In the United States, the U.S. Patent and Trademark Office grants an inventor the right to exclude others from using his invention in commerce, generally for twenty years. This right is granted upon full disclosure of the patent in the inventor's application for a patent. In the United States, patents are granted for four types of discoveries/inventions: machines, human made products, compositions of matter and processing methods. Examples of things a business might patent are: a new plant variety or cultivar, a new car engine, or a new method of medical treatment.
Trademarks are distinctive signs, symbols, pictures or words a business uses to distinguish and identify its products. A trademark can be for color combinations, designs, and packaging. An ordinary identification that is not unique may also receive a trademark if it has acquired secondary meaning over time. Like a patent, the owner of a trademark obtains an exclusive use to that mark. Service marks are treated similarly but refer to those marks by businesses providing services, such as a restaurant. A business applies for a federal trademark with the U.S. Patent and Trademark Office. Both state and federal laws protect trademarks.
In the United States, the Copyright Office of the Library of Congress administers the grants of copyrights. A business may be interested in obtaining a copyright to protect such things as, architectural designs or computer software, Whether or not a copyright is registered or a copyright notice appears on a copyrighted item, copyright protections attach. Such protections make it illegal for persons other than the copyright holder to reproduce, distribute, perform, display or license the work.
The term of a copyright depends on various factors such as when the work was created and who created it. A copyright term is generally from 28 to 120 years.
A trade secret is the private knowledge of a business that has commercial value. State unfair competition law protects trade secrets. An example of a trade secret is a beverage formula. Trade secrets are valid for only as long as a business actively prevents the information from being revealed and may be protected under both state and federal law.
In order to benefit from the specialized knowledge they possess, businesses must make themselves aware of the protections the law provides them. They must take an inventory of the type of work they do, the things they create, as well as how they do the work they do. From patent to copyright, there are many legal avenues to protect commercial intellectual property.
Questions & Answers: Intellectual Property