You may have heard the phrase “intellectual property” used at some point, whether it be in a business or legal context. However, what is intellectual property and what type of protection does it offer? Intellectual property is the umbrella term that covers patents, trade secrets, copyrights, and trademarks. This post will explore the different types of intellectual property, what is needed for protection under each, and the pros and cons of using each for protection.
What is needed
What is needed for a patent? Many things can be patented including processes, machines, and plants. The first step to patenting is filing a patent application with the USPTO. Once you submit your patent application to the USPTO, someone called an examiner will review your application. The examiner will be checking that your invention is new, has utility, and it is non-obvious.
For something to be new, it must not already exist or be in the market. Utility essentially means that what you are trying to patent is useful and is capable of performing that use. For an invention to be non-obvious, it must be something that someone skilled in the area of your invention would not think to do. For example, changing the color of something, like a firetruck from red to yellow, would not be obvious.
However, your reasons for the change may not be obvious. If your reason for changing the color of the firetruck to yellow was because your research showed the color red attracted drunk drivers, then your change would be more likely to be non-obvious.
What are the pros and cons of a patent?
A patent comes with many pros including that once it is granted, you can stop people from using your invention. For example, a patent prevents others from manufacturing, copying, selling, or otherwise using your invention without your permission. A patent protects you no matter how the other person tries to use your invention. A patent protects you no matter if the other person reverse engineers it, invents separately by on their own, or outright copies your existing invention.
One of the main cons of a patent is that you must publically disclose your invention or process. Many inventors and companies do not want to give away their secrets, but they must in order to receive a patent. Additionally, the patent may not be granted and all the information regarding the invention is now public. Another con is that inventors cannot have their product in the market prior to patenting. Once it is in the market, especially after a year, the USPTO considers the idea to be no longer new and not patentable. Additionally, utility patents expire after 20 years which allows others to then use your invention.
A trade secret is essentially a secret alternative to a patent. It allows companies to maintain their secrets, but it offers no legal protection. What it does offer is a legal remedy if a competitor unfairly steals your invention
What is needed
A trade secret can be anything that has value and that you have taken reasonable precautions to protect your secret. Trade secrets are most often formulas, patterns, methods, techniques, and even devices. For example, the recipe for Coca-Cola is a trade secret.
What are the pros and cons of a trade secret?
Inventors and companies like that with trade secrets, they do not have to disclose their specific process or device to the public. To many, this is an attractive alternative to filing a patent which requires full disclosure.
However, a trade secret offers no legal protection until the secret is stolen, and once the secret to the public no matter how it happens, there is no longer any protection. If the secret is stolen, the inventor or company will have to prove to the court that the competitor acquired their secret wrongfully in order to get any relief. This can be difficult to prove and may be a financial burden. Also, trade secrets do not protect from a competitor reverse-engineering the secret or from discovering and using it on their own.
You see trademarks and logos every day. Anything that helps consumers identify the source of a product falls under trademark law.
What is needed
In order to receive trademark protection, you need to have a unique mark that you are using in commerce as a means to help consumers identify your product or company. Pictures, logos, slogans, and even sounds can serve as trademarks. To gain trademark protection, you must register your mark with the USPTO. Marks, words, or features that are functional, generic terms (ie trying to trademark “computer” for your computer company), descriptive terms, or names of geographic places generally cannot serve as trademarks.
Pros and cons
The main pro of having trademark protection is that you can prevent competitors from using your mark and misleading consumers. However, in order to gain trademark protection, your mark must not be similar to marks that are already in commerce.
Anything you create that is your original work and is in a tangible form, has copyright protection. Your rights attach as soon as you create your work, however, some authors or artists prefer to register their works with USPTO to further defer infringers. For works that are created now, a copyright lasts for the duration of the author’s life and then an additional seventy years.
What is needed
In order to have a copyright, you have to have a creation that is fixed in a tangible mediums. Examples would be books, poems, photographs, plays, and movies. However, your creation also needs to have some creativity so things like recipes and data entries usually are not copyrightable.
Pros and Cons
The main pro of having a copyright is that you can recover damages if somebody copies your work. However, they are defenses, such as fair use and parody, that infringer can claim that may prevent them from having to pay damages.