Intellectual Property
Intellectual property, broadly speaking, refers to patents, copyrights, trademarks, and trade secrets. Patents and copyrights both arise from Section 8, Clause 8 of the Constitution.
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;” Trademarks originate from a federal statute, Landham Act, which Congress authorized based on the interstate commerce clause of the constitution. Trade secrets are not found in any federal statute, rather are only found in state common law.
Copyright law under section 102 protects “original works of authorship fixed in any tangible medium of expression.” The protection begins the moment it is fixed, although there are significant advantages to registering a copyright and using a copyright notice. Copyright gives you a bundle of rights that can each be transferred. A copyright is not a monopoly. Another author can build on it or change it into a new work, although there are limitations. In fact, the public has the right to freely use a work regardless of copyright protection under certain conditions. This is called “fair use” and is getting a lot of attention because of how easy copying images is on in todays connected world.
Unlike the artistic protection of copyright provides, patents protect the utilitarian— the machine or product of commerce. Patents are Section 101 of the Patent Act granted to “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof …”
An application for patent protection must qualify within one of the categories and be ‘new and useful’. We also discusses how software, plants, and nonfunctional designs may receive patent protection.
Trademark law protects the creativity used to distinguish a product from the competition. The Landham Act created a system of nationwide trademark registration, although registration is not required and, absent registration, the first to use a trademark has priority. You can register a trademark prior to actual use. A trademark can be a word, slogan or a graphic logo and may include a sounds, colors or even a smell as long as it is used to identify and distinguish his or her goods from others and to indicate the source of the goods. (15 USC 1127)
Trade secrets are not always considered when intellectual property is discussed. This may be because there is no federal legislation although most states have trade secret laws based on the proposed Uniform Trade Secret Act. However, some of the oldest and most valuable commercial information has been protected as a trade secret to this day. In the fast-moving high-tech world often a trade secret is the best protection. Trade secret protection only protects certain novel business information. The information must take sufficient steps showing it regards it as a secret. Just as a new but obvious product may not receive patent protection, new but easily knowable information will be considered a trade secret.
Intellectual property is often a company’s most valuable asset. Ironically, it’s abstract nature makes it easily overlooked. Often people are not willing to take time to protect intellectual property until after there see success. Unfortunately, the competition moves fast and it may be too late to protect your idea or product once it enters commerce. Fortunately, a few simple and affordable steps can avoid costly mistakes. For more details please read the previous posts listed below and subscribe to the blog to be informed of future posts.
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