Protecting Your Intellectual Property

Written by Steve Holder
August 18, 2008


Intellectual property refers to creations of the mind having potential commercial value that are afforded legal protections under the laws governing:


Whether tangible or intangible, intellectual property (”IP”) is something individuals and companies can legally own, buy, and sell. As with many other types of property, IP can be misappropriated or stolen, and its value can be damaged or destroyed.

Just as you would protect other types of property by locking your car or buying insurance for your house, you have various ways to protect your intellectual property, too. But because IP sometimes has an intangible quality, locks and keys are not always the most effective means of securing this property and protecting its value.

What follows is a short course and introduction to protecting intellectual property, with links to more detailed information.

Copyright

As provided by the laws of the United States and other countries, anyone who creates an original work of authorship is entitled to certain rights to control the reproduction and use of that work. Works of authorship include:

In the United States and some other countries, recent changes in laws provide that the creator’s copyright exists from the moment the work is first put into tangible form. You have no need to register the work and you’re not required to affix the © symbol to it for the copyright to be valid.

A subtle quirk of the law, however, is that while the copyright owner has the right to restrict reproduction, performance, use or adaptation of the work by unauthorized persons, the owner cannot enforce those rights in a court of law unless the work has been registered with the U.S. Copyright Office.

If you suspect your copyrighted work has commercial value and you want to preserve your rights to prevent infringement, register it. Registration is not complicated or expensive.

Patents

Not every idea can be legally patented. In fact, an idea itself can’t be patented at all unless it’s in the form of an actual invention or discovery. The law provides patent rights can be issued for new, non-obvious and useful processes, machines, articles of manufacture and compositions of matter. Subsequent court interpretations have expanded patentable items to include business processes and computer controlled processes, and narrowed them to exclude laws of nature and physical phenomena.

A patent gives the patent owner a monopoly on the use or sale of the invention or discovery for 20 years. The price of this monopoly (in addition to the application fees) is disclosing the invention to the world in sufficient detail so that anyone skilled in the field can apply it once the monopoly period ends.

Obtaining a patent can be a long, arduous, expensive process, and there is no guarantee that a patent will be granted. Even if a patent is obtained, in a highly competitive field the patent’s validity can be challenged on a number of fronts.

When the potential rewards are worth the effort and expense, obtaining a patent to protect your invention or discovery may be the obvious choice. In some cases, however, protecting it under trade secret laws may be more efficient.  (See “Choosing Between Patent and Trade Secret Protection.”)

Trademarks

Trademarks are the words and symbols companies attach to their products or services to distinguish them from their competitors’ (Trademark law applies to both trademarks and service marks). It is precisely because of trademarks that you will never confuse a Coke with a Pepsi, or a Holiday Inn with a Marriott.

A company’s right to exclusive use of its established trademark is grounded in centuries of common law and protected in the courts. You can freely use the TM or SM symbols to announce your claim to a combination of words and images representing your trademark or service mark, and obtain this common law protection.

A higher level of trademark protection is available, however, by using the trademark registration system. Registration makes enforcement of trademark rights and resolution of disputes less chaotic, and therefore less expensive.

Registering your trademark with the U.S. Patent and Trademark Office is appropriate if your product or service is available in more than one state or country. If your mark is only used within your state, you can register it with the appropriate state agency.

Trade Secrets

Trade secrets occupy a unique space in the intellectual property sphere. Whereas registration of patents, trademarks and copyrights must be applied for with the appropriate government agency, there is absolutely no registration process for trade secrets. That only makes sense. The value of a trade secret derives principally from it not being generally known, and registration would completely defeat that goal.

Where an intellectual property attorney can assist you in registering and defending your copyright, patent or trademark claims, the attorney’s value in trade secret matters is slightly different. The attorney’s initial focus is helping you determine if trade secret laws are appropriate for the intellectual property you want to protect. (See “Choosing Between Patent and Trade Secret Protection.”)

When trade secret protection is the chosen avenue, you will need to take the appropriate measures for protecting those secrets. If you don’t take suitable precautions against disclosure, the courts will not be sympathetic to your claims of misappropriation.  Your attorney can help you in determining the proper precautions necessary to preserve and enforce your trade secret claims.

Related Articles

Did you enjoy this article? Why not leave a comment below and continue the conversation, or subscribe to my feed and get articles like this delivered automatically to your feed reader.

Comments

No comments yet.

Leave a comment

(required)

(required)