Here, we provide a brief primer on intellectual property. Also, we discuss the major types of intellectual property and how to protect your intellectual property.
What Does Intellectual Property Mean?
Intellectual Property is a form of intangible property that protects creations of the mind. Intellectual Property is a creation of the law. The are several types of intellectual property, including patents, copyrights, trademarks, and trade secrets. Patents are exclusively the domain of United States federal law, and copyrights are predominantly so. Trademarks are primarily federally based, though there are state trademark laws that generally apply when marks are used locally and not in “interstate commerce”. Trade secrets are primarily based in state law, though there is also United States federal law deadline with the theft of trade secrets.
What are the Types of Intellectual Property?
Patents protect technological invention. Patents provide the owner with the ability to prevent others from making, selling, using, or importing of the patented invention. Moreover, there are several types of patents. The most common is the utility patent, which protects new and useful processes, machines, article of manufactures, or compositions of matter, or new and useful improvement thereof. Design patents protect the visual/ornamental characteristics embodied in, or applied to, an article of manufacture. Lastly, there are plant patents, which protect a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state. Patents applications are filed with the United States Patent and Trademark Office.
Copyright provides protection for creative works fixed in a tangible medium of expression. Copyright can protect literary/artistic works (including computer programs), music, film, architecture (separately for plans and buildings), paintings, and sculptures. Copyright registration applications are filed with the United States Copyright Office.
Trademarks generally protect a business’s source identifier. A trademark is any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods/services of one manufacturer or seller from those of another and to indicate the source of the goods/ services. Trademarks for services are referred to as service marks. Trademark registration applications are also filed with the United States Patent and Trademark Office.
Trade secrets protect the “secret sauce” of your business. This broadly defined form of intellectual property can include any confidential information that enhances your business or gives it a competitive edge. For example, some common trade secrets include proprietary recipes or methods, customer lists, technical know-how (also negative technical know-how), and proprietary internal software. Some famous examples of trade secrets are the spice recipe for KFC’s chicken, the Coca-Cola formula, and the Google Search Algorithm. Uniquely, in some states, the enforcement mechanism for trade secret misappropriation includes both civil and criminal sanctions. There is no formal application process for trade secrets.
Depending on what is being protected, there can be overlapping protection from multiple types of intellectual property. If you have questions on how to protect your intellectual property assets, please retain an experienced intellectual property law firm to aid you.
Is Intellectual Property international?
Most forms of intellectual property are limited to the associated national jurisdiction. For example, a patent issued by the U.S. government only extends to the U.S. and its territories. If an applicant wants patent protection in a foreign country (or countries) for the invention, the applicant must also file a separate patent application in the other foreign countries. The same applies to trademarks, copyright, and trade secrets. However, there are treaties in place that allow reciprocal intellectual property filings (e.g., patents and trademarks) in different jurisdictions, which helps to expedite the process of obtaining “international” IP coverage. The “ins and outs” of each form of intellectual property varies with the jurisdiction. If you are interested in international intellectual property protection, ADD+G has relationships with numerous international law firms throughout the world, and we can aid you in securing your intellectual property not only in the U.S. but in foreign countries as well.
Why It’s Important to Protect your Intellectual Property
Failure to take the necessary steps to protect your intellectual property can have dire consequences on your business. First and foremost, delay can damage your potential intellectual property rights. Indeed, you can forfeit your intellectual property rights if you delay protective steps with respect to patents, trademarks, and trade secrets.
For patents, if you choose not to seek patent protection on your product, you will be at the whim of your competitors copying your product. Indeed, if you have a commercially successful product, after an initial burst of sales, you will most likely find competitors with cloned products undercutting your margin. A patent is the only way to prevent others from making and selling a product, and without this ability it may be difficult to recoup development costs. In short, patents provide you a limited monopoly on your invention, which can lead to an enhanced profit margin. This limited monopoly is the reward for disclosing your invention to the public. If you fail to file for a patent application, you are simply surrendering your invention to the public domain for free.
With regard to trademarks, failure to register a trademark with the U.S. Patent and Trademark Office may risk limiting your trademark rights to common law, which places a geographic lid on your rights. A junior user (i.e., someone using the same mark later in time) could secure nationwide rights by filing a trademark registration application, and your business would be unable to expand beyond your local geographic area using the trademark.
For copyrights, although common law copyrights begin to accrue before formal registration, without copyright registration in hand, you forego statutory damages, and a presumption of validity on the copyright registration. Also, you cannot enforce your copyright in a federal court without the registration.
Regarding trade secrets, the consequences could be quite immediate. You may quickly find a former employee working for your direct competitor using the critical technical know-how gleaned from your business, or calling your customers to move their accounts.
5 Ways to Help Protect Your IP
- Hire an intellectual property law firm and perform an intellectual property audit.
- Determine any time bar deadlines due to prior disclosures or activities and act accordingly.
- Rank and prioritize your intellectual property assets.
- Secure your intellectual property and measure your public disclosures carefully on what needs to be publicized.
- Have your intellectual property attorney prepare transactional documents for vendors and contractors, such as non-disclosure agreements.
Work with an Intellectual Property Attorney to Protect Your IP
By hiring experienced intellectual property attorneys from ADD+G, you can efficiently protect your intellectual property. Our attorneys have the requisite experience in all forms of intellectual property to properly protect your intellectual property assets. Moreover, ADD+G can leverage our decades of experience in servicing all types of clients, from the sophisticated Fortune 100 company to the small local start-up, to aid your business in protecting its intellectual property. If you need intellectual property assistance, please contact our law firm.
About the Authors
Jack Abid practices in the area of patent prosecution and IP portfolio management. His patent prosecution experience includes electrical and electronic equipment, telecommunications equipment and cables, laser and optical devices, semiconductor devices, semiconductor processing, mechanical devices, medical devices including implants and telemedicine, and software.