Intellectual property is something all information workers should have a basic understanding about. It does not matter if you work in software, food, medicine, financial services, or any other industry there are intellectual property implications if you are in marketing, R&D, and even sales. Understanding intellectual property will help you know when to get the advice from others and some key things to avoid or beware about.
Intellectual property goes back a long way and is even mentioned in the United States Constitution. There is also a long history of intellectual property protection in other areas of the world. Over the years the United States and much of the world have aligned their views on intellectual property protection and the process to obtain and the duration to maintain intellectual property rights.
There are four main types of intellectual property:
Patents: There are three types of patents. The primary type of patent and the one most people seek and obtain is a “utility” patent. When you think of any invention whether it is a new silicon wafer, drug, software program, or food then you want a utility patent. However, there are also “design” and “plant” patents and you can “Google” these patents to find more detail about the differences.
A patent gives you the exclusive right to prevent others from making, using or selling the patented invention. In return for these exclusive rights the inventor must disclose the invention so that a skilled person in the art of the invention is able to recreate the invention. The idea here being you will get this exclusive right and get rewarded but you will benefit society with not only creating a new invention but also disclosing that invention. The term of a utility patent is 20 years.
In order to patent something the invention must be novel, useful, and non-obvious. Being novel just means your invention is new. Being useful means there is some type of utility of the invention. Being novel and useful is a very low threshold to overcome. The key is whether an invention is non-obvious meaning that the invention must not be obvious to someone in the field of the invention at the time the invention occurred.
A patent can be received in one country or many countries but the key is that if you want to patent something that you don’t go about making it public or selling it first and then seek to patent it. If you are getting feedback on an invention then use confidentiality agreements with people providing feedback to protect the disclosure from not being considered public.
There is the option to file what is called a provisional patent and these are less expensive and act as a placeholder for the more expensive full utility patent. This gives a person one year to then file a full utility patent. If a fully utility patent is sought and granted then it will give the inventor or her assignee an exclusive 20-year term based on when filed.
Patents are not cheap both because of government fees and because of legal fees. However, if you or your company does have an invention that is really patentable and provides a significant differentiation then patent obtainment costs are certainly worth it.
Trade Secrets: Trade secrets are oftentimes an alternative to patents. Trade secrets are just what it sounds like – keeping an invention secret. This is proper if you think the invention cannot be reverse engineered easily or if you think the importance is first mover advantage and not worth the legal fees.
When you think of trade secrets think of the things like KFC’s 11 herbs and spices or Coke’s formula. Companies will not give any one person the trade secret information and will ensure proper non-disclosure agreements are in place to protect the trade secret.
Trademarks: Trademarks provide protection for brands, services, designs and products in order to ensure that people are not confused. This protection includes things like words and images like the Nike swoosh and the saying “Just do it.”
Trademarks can be continuously renewed and can last perpetually. They are there to represent the brand but also are there to protect the public from confusion. Idea being that someone buying a brand has a certain expectation of quality and product type.
Another important part of obtaining a trademark is the quality of the mark and a mark is analyzed to determine if it is arbitrary, fanciful, suggestive, merely descriptive, or generic. A generic mark is something that cannot be trademarked. The other types of marks can receive protection.
The level of protection a trademark gets is based on a number of things. There is federal registration similar to copyrights and it is important that companies do this to ensure they get appropriate protection. This includes the ability to claim statutory damages instead of proving damages. One important note is that trademarks must be protected by a trademark holder or deemed to have rights forfeited.
In addition to trademarks there are service marks but the laws and implication about these are nearly identical. The difference between trademarks and service marks is just that a trademark applies to delivery of goods application while a service mark applies to the delivery of services. Often times you will see the discussion of these just together referenced under trademarks.
Copyrights: Copyrights cover creative works like music, books, plays, movies, artwork, photos, software code, etc. Copyrights must have some degree of originality but this threshold is low. Further, copyrights exist immediately when the work is fixed to a tangible medium. Tangible mediums include things like paper, film, or hard drives.
Once the person fixes the work to a tangible medium the copyright exists but the rights of a copyright holder become greater if they file a federal copyright registration. This federal registration will give additional rights like receiving statutory damages instead of having to prove damages if you have copyright infringed.
A copyright lasts the life of the author plus 75 years. The idea being that the author should receive the benefit of his work his entire life and plus be able to pass down rights. There is a lot of controversy around this timeframe with some arguing that this is simply there to make companies like Disney and Marvel wealthy.
Copyrights give the author or his assignee the exclusive right to reproduce works, prepare derivative works, and the right to perform and display works in public. However, there is a key item called the “Fair Use Doctrine” however that provides an exception to copyright exclusive rights. The Fair Use Doctrine applies to limited use of copyrighted material in instances such as parody, news reporting, search engines, research, testing, criticism, etc.
As an information worker intellectual property can be an extremely important asset or foe so knowing the basics and when to get professional help is important. This should not be considered legal advice and simply for educational value and make sure to contact a licensed attorney if you need professional advice.
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