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Intellectual Property Basics

Intellectual Property Basics

   

Intellectual property encompasses basic ownership rights over ideas, inventions, literary creations, unique names, business models, industrial processes, computer program code, and more. Congress’ intent behind intellectual property protection is to encourage creative activity of authors and inventors by granting specific rights to authors and inventors, while simultaneously allowing public access to the intellectual property. Article I, section 8, of the Constitution of the United States grants Congress the power to “promote the progress of science and useful art, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  The intellectual property laws that Congress has passed help ensure a “free flow” of ideas, information, and commerce. There are four categories of protection available to an author or inventor of intellectual property: patents, copyrights, trade secrets, and trademarks.

Although there may be some similarities among the different types of intellectual property protections, each is unique and serves a different purpose. A party may desire protection of a unique “idea” because that idea may result in goods or services of value. A party may obtain ownership rights and protections without personal economic loss by registration of a trademark, copyright, or patent. Any commercially valuable product of intellectual creation or design, in a concrete or abstract form, such as a copyrightable work, a protectable trademark, a patentable invention, or a trade secret is considered intellectual property.

What is a trademark

A trademark is a word, name, symbol, or device, which is associated with goods or services, distinguishing a particular good or service from other goods or services. There is also protection for the name of a business under trademark law, which is known as a trade name. The mark or name must create an association between the goods or services and the owner in the minds of consumers. The primary purpose of trademark protection is to guarantee to consumers that a product is authentic and from the associated owner. Trademark protection prevents others from using a confusingly similar mark, but does not prevent others from making or selling similar goods or services under a clearly different mark or name brand.

As soon as a mark or name is adopted by an organization and used publicly in business, that mark or name qualifies for trademark protection. A party is not required to register a mark or name to prevent others from infringing on the trademark. However, in order for a mark or name to qualify for enhanced protection under federal trademark, the trademark must be distinctive, affixed to a product sold in the public domain, and registered with the United States Patent and Trademark Office. In order to register a trademark the owner must file an application recording the mark with the United States Patent and Trademark office. The United States Patent and Trademark Office may accept or reject the registration based upon various criteria outlined by the United States Patent and Trademark Office.  The ® symbol identifies a registered mark. One advantage of registering a mark is that third parties can search a national or international trademark database to discover any claim to trademark ownership and thereby avoid inadvertent or innocent infringement.

There are two main types of trademark actions for available to a trademark owner: infringement and dilution.  Infringement of a trademark is the unauthorized use of a trademark by someone other than the trademark owner. Trademark dilution is the unauthorized use by a third party in connection with the same or related goods or services and in a manner that is likely to cause confusion, deception, or mistake about the source of the goods or services.  Trademark protection is an important step to safeguard against a third party using a confusingly similar name, word, or symbol in order to gain a competitive advantage by benefiting from the name recognition of the existing trademark.

For further information regarding trademarks, you can visit the United States Patent and Trademark Office website at http://www.uspto.gov or consult with an attorney.

What is a copyright

A copyright protects expression in the form of original works of authorship. Copyright protection is provided by the laws of the United States (Title 17 of the United States Code) to the authors of “original works of authorship.”  These works of authorship include literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The categories listed under copyright law should be viewed broadly.   Copyrights are registered in the Copyright Office of the Library of Congress.   The 1976 Copyright Act generally gives the owner of a copyright the exclusive right: “(1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”  17 U.S.C. § 106 (1976).

A more recent area of development under copyright law is computer software and compilations. Both types of works may be registered as literary works, and the owner of such works is protected.   

In general, the owner of a copyright or the owner of the exclusive right of publication in a work must deposit a copy of the work in the Copyright Office within three months of publication of the work within the United States.  Although copyright registration is technically optional, it is required before a copyright owner may bring an infringement lawsuit. Registration of a copyright will establish prima facie evidence in court of the validity of a copyright. In addition, registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies. Most countries offer protection to foreign works under certain conditions.

Infringement of a copyright is the unauthorized use of the work without the express permission of the copyright owner. The protection is not absolute; there are various limitations on the rights protected under the 1976 Copyright Act.

For further information regarding copyright, you can visit the Copyright Office website at http://www.copyright.gov or consult with an attorney.

What is a patent

A patent provides protection for a new invention or innovation; business models, industrial processes, and computer program codes can be considered patentable items. An advanced method, more efficient process or approach to manufacturing an existing product, a new application of a known principle or process to a new use without leading to a new result or product may all be patentable. If both a new product and a new or unique method of manufacturing that product are created, it may be possible to apply for patent protection for both the product and the process. In order to qualify for patent protection, a product must be both original and novel.[1]

Patents and trade secrets can protect similar products, such as industrial processes or computer program codes. However, there is a significant difference between the protections provided by a patent and those provided by a trade secret. Unlike trade secrets, patents have specific categories by subject matter that define eligibility for registration and, therefore, protection.

The patent confers the right to exclude others from making, using, offering for sale, selling or importing the invention issued by the Patent and Trademark Office. 35 U.S.C. § 154. Infringement is the unauthorized use by a third party without express permission, that interferes with the exclusive rights of a patent owner.

For further information regarding patents, you can visit the United States Patent and Trademark Office website at http://www.uspto.gov or consult with an attorney.

What is a trade secret

Trade secret protection covers products, processes, methods or even business information used to provide a competitive advantage in business. A trade secret can be almost any item that is not a matter of common knowledge in a specific field or trade.  Ideas, inventions, business models, industrial processes, or computer program codes can be covered under trade secret protection.   To qualify as a trade secret, the information must have some recognizable value that is used by an organization to gain a competitive advantage. Unlike trademarks, patents, and copyrights, trade secret law provides non-exclusive protection for the trade secret.  In order for the protection to apply, a party must take reasonable steps to maintain the confidential or secret nature of the information it is seeking to protect.

Things that must be taken into consideration under trade secret law are whether the product in question will be utilized for internal or external undertakings, or if third parties will have access to the trade secret. It is more difficult to maintain secrecy if a trade secret involves software programming code versus an internal process for manufacturing a final product.

There is a lot of overlap between patents and trade secrets. There are some items that would not qualify for patent protection but may receive trade secret protection, such as a customer or client list. Unlike patent applications and registrations, trade secrets are not published by an official government agency. There are many risks involved in deciding to go with a trade secret protection.  One such risk includes the possible discovery of computer programming code maintained as trade secret by a third party through reverse engineering. In the situation where the trade secret consists of a client list, one must consider the consequences once the trade secret is made public.

A trade secret protection is a common law and state protection, not a federal protection.  Therefore trade secrets are not registered in the United States Patent and Trademark.  To receive the benefit of trade secret protection, the owner must take steps to keep the information secret, such as having confidentiality agreements in place whenever it is necessary to disclose the information to a third party or employee.  A trade secret leaves the door open for another party to file for a patent even though the applicant may have been the first to originate the idea. A third party may patent the same invention or innovation with the United States Patent Office if that item falls within one of the subject matter categories enumerated by the Patent Office. If there is an unauthorized use of a trade secret, the owner may file a trade secret misappropriation action.

For further information regarding protection of trade secrets in Maryland, you can find the Maryland Uniform Trade Secrets Act in Maryland Code, Commercial Law Article § 11-1200 et al. or consult with an attorney.

How long does my protection last

The length of time your idea is protected under the laws will depend on whether the idea falls under trademark, copyright, patent, or trade secret protection. A patent or copyright grants exclusive rights to the holder for a limited length of time. On the other hand, a trademark or trade secret has the potential to last indefinitely.

The term of trademark protection usually lasts for a period of 20 years and is renewable in increments of 20 years.

The term of copyright protection for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. A work that is created (fixed in tangible form for the first time) on or after January 1, 1978, lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a “work made for hire,” the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death.[2]

The term of patent protection usually lasts 20 years from the date on which the application for the patent was filed in the United States Patent and Trademark Office. In a patent application, a party must provide full disclosure of the invention or innovation. Once the United States Patent Office receives the application, it publishes the application approximately 18 months after the application is filed. Then it may take another year for the United States Patent Office to reach a decision about the application. There is the potential, especially in the technology industry, that two people may file simultaneous patent applications for the same product. In that situation, the Patent Office conducts what is called an “interference” to determine who is entitled to the patent protection.

The term of trade secret protection is indeterminate. A trade secret has the potential to last indefinitely, but a party must take reasonable steps in order to maintain its confidential or secret nature. Discovery by others of the trade secret has the potential of terminating some protection.



[1] Although a patent may be granted, the U.S. Patent Office may re-examine the patent application, finding the patent invalid.

[2] For works first published before 1978, the term will vary depending on several factors.


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