Intellectual Property: A Primer
No matter the nature of your business, whether you are a physician, hotel owner, retailer, or service provider, you will at some point encounter intellectual property (IP) issues. Intellectual property refers to creations of the mind, products of human intelligence, including inventions, artistic works, symbols, names, and images used in commerce. IP that is owned by you or your business should be protected by filing Patents, Trademarks, and Copyrights. Since these terms are often used incorrectly, here is a brief primer on what each is and how they are used.
Patents
In the U.S., a patent is the grant of a property right
to an inventor, issued by the U.S. Patent and Trademark
Office (USPTO). Inventions range from high tech
innovations such as pharmaceutical/mechanical
products and software, to less technical products, such
as paperclips and sippy cups.
Types of Patents:
• Utility: new and useful process, machine, article
of manufacture, or composition of matter, or any new
and useful improvement thereof;
• Design: new, original, ornamental design for an
article of manufacture;
• Plant: any distinct and new variety of plant invented
or discovered and asexually reproduced.
The process of obtaining a utility patent is called patent prosecution. Applicants file a patent application, after which, patent prosecution begins. USPTO examiners consider many factors, for example, whether the subject matter is eligible (for example, laws of nature and abstract ideas do not qualify for patent protection) and whether there is any relevant prior art (novelty and lack of obviousness).
The term of a patent is generally 20 years from the date the application was filed. The patent confers “the right to exclude others from making, using, offering for sale, or selling” the invention in the U.S. or “importing” the invention into the U.S.
Trademarks
A trademark is a word, name, or symbol that is
used in trade with goods to indicate the source of the
goods and to distinguish the goods from those of others.
A servicemark is a trademark of a service rather
than a product.
Types of Trademarks:
• Fanciful or coined marks: invented words that
have nothing to do with the product and services; usually
have the broadest protection, e.g. COCA-COLA®.
• Arbitrary marks: words that have a meaning but
not a meaning connected to the goods or services, such
as APPLE® for computers.
• Suggestive marks: hint at what the covered
goods or services might be, but don’t describe the goods
or services, such as COPPERTONE® for tanning lotion.
• Descriptive marks: cannot be registered in most
cases unless the mark has acquired distinctiveness as
to the goods or services covered, such as RED ROOF
INN.
Several factors are considered in registering the trademark, including whether or not there is likelihood of confusion with other marks.
Copyright
Copyright protects “original works of authorship”
including literary, dramatic, musical, artistic, and certain
other intellectual works, both published and unpublished.
The 1976 Copyright Act generally gives the
owner of copyright the exclusive right to reproduce the
copyrighted work, to prepare derivative works, to distribute
copies or phonorecords of the copyrighted work,
to perform the copyrighted work publicly, or to display
the copyrighted work publicly.
Copyright protects the form of expression rather than the subject matter. For example, copyright on a description of a machine could prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.
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