What Is Intellectual Property
by Kathy Batesel
(And How to Protect Yours!)
I first learned about the concept of intellectual property when I was in business for myself. Simply put, intellectual property is an idea that is marketable in some way. The United States Patent and Trademark office calls it "imagination made real."
Perhaps you have an invention that is going to make you wealthy beyond belief. Or maybe you run your own business, and have a catchy logo or slogan that you don't want your competitors to undermine. Then again, maybe you have the next great novel or an outstanding article like this one that you plan on using to make a few dollars.
Whatever your original creation is, you can protect it from being used in a way that keeps you from making money if you understand the steps you need to take.
What kind of intellectual property protection is most important to you?
Types of Intellectual Property
Intellectual property can refer to an invention. There are several kinds of inventions:
- Items of utility - machines, objects, or a unique combination of the items that create a machine or object. These are "things" that can be used in some way.
- Designs - refers to a new "look" for something that already exists. Ornamentation.
- Plants - creations of new plants, vegetables, flowers, and similar living matter.
It may refer to a series of words or artwork that has been "tangibly expressed," meaning that it has been created on paper, canvas, or by a digital file after it was first imagined.
- Book manuscripts
- Poems written on a scrap of napkin in a restaurant
- A sculpture carved into wood
- A choreographed dance routine
- Musical recordings
It can refer to distinguishing marks that are used in business. Known as a trademark or service mark, a distinguishing mark can be a lot of different things. Most commonly, trademarks consist of a combination of specific colors and graphics, or a distinctive image in a single color. The red, white, and blue RE/MAX hot air balloon is a trademark, but the company would not try to interfere with an entrepreneur who used a green hot air balloon to make his mark. Harley-Davidson, on the other hand, would be likely to take issue with anyone using a graphic that has an identical shape, no matter what colors were used to create it. Other well known examples of trademarks include:
- The LG logo
- The shape of a Coca-Cola bottle
- Nike's "Swoosh"
Trade secrets are processes or methods that give a person, brand, or company a business advantage. Google's algorithm to rank search results is a trade secret that prevents its competitors from duplicating its results, resulting in its ability to retain a superior advantage over other search engine companies. You may have heard about some famous trade secrets:
- Coca-Cola's formula
- Burger King's secret sauce
- Colonel Sander's fried chicken recipe
The majority of trade secrets are unlikely to garner fame:
- Customer lists
- Business plans
- Products in development
International Intellectual Property Protection Government Agencies
Protections for Intellectual Property
Individual countries administer their own methods for protecting intellectual property based on their laws. In the United States, protection of intellectual property is handled in a few different ways. The USPTO can grant protection in the form of a patent for inventions and registrations for trademarks. Copyright protection occurs automatically upon creation of a work, but can be registered with the United States Copyright Office. Trade secrets are typically protected by the company using them in the form of corporate policies.
In other countries, a single agency may handle all types of protection. You'll find an incomplete list of intellectual property government agencies in the links at the right. There are 185 member states that belong to the World Intellectual Property Organization! The WIPO clarifies laws and helps ease global trade by providing guidelines on intellectual property. Member states have agreed to abide by WIPO guidelines to address intellectual property issues that occur between two or more member states.
Court systems determine whether a violation has occurred and how to resolve it. Claimants can file a lawsuit either in the country where they reside or in the country where they allege a violation has taken place.
How to Protect Copyright in the U.S.
For copyrighted material, it's usually not necessary to register it with the copyright office. Registration is allowed at anytime during the protected copyright period from the work's creation until seventy years after its creator's death, but protection begins without it being registered. Protection is automatic on any work published after 1989, when U.S. copyright laws changed significantly. Registering a copyrighted work results in:
- It provides formal notice to the public of your copyright.
- It places your copyrighted work in the national Library of Congress.
- It allows you to receive reimbursement of attorney fees and court costs if you file an infringement suit, but only if the work was registered within the first three months after it was published. If it was registered after that point, you could only receive actual damages and profits.
- It allows you to file an infringement lawsuit. (You must file before you initiate a lawsuit, but other methods of addressing infringement may also be available.)
- It provides extra protection against companies that import copies of works that violate your copyright.
Copyright protection is granted when you first publish your work, even if it's just on a scrap of paper. To minimize risk or to address violations of your copyright, here are steps you can take:
- Provide notice of copyright on the work itself. This may be done by adding the copyright symbol - ©, or by marking it with "Copyright" and the year of creation.
- Write a demand letter to the infringing party that says you're the copyright holder, that they are using your material illegally, and stating that it must be removed immediately to avoid further action. For digital material, such as YouTube videos or web pages, you can also file a DCMA complaint to get the material removed and/or get the offending site de-indexed from search engines.
- If all else fails, you can register your work with the copyright office, hire an attorney, and file a lawsuit.
Types of Trade Secret Agreements
Protect Trade Secrets
By its very definition, the more people who know about trade secrets, the less secret it becomes. The most effective method for protecting trade secrets is to adopt a proactive stance. Company policies should specify what is considered a trade secret, and require employees to sign their agreement to never reveal any elements of those trade secrets. Known as a non-disclosure agreement, these contracts can provide the best protection for a company if they are drafted well. If they aren't, they may not provide good protection after all. This video discusses important aspects about non-disclosure that you should understand before developing a company procedure.
Access to trade secret information should be limited to a "need to know" basis. For example, an important customer list shouldn't be left in an unlocked file cabinet or kept on a computer that is accessible to anyone in the office. Instead, it should be maintained under lock and key and only available to people who cannot do their jobs without accessing it.
Most trade secret exposures are the result of accidental disclosure. Occasionally, a disgruntled employee may take aim at a company. Either way, if a violation occurs, the employee may be sued if the company's owner has limited access and required employees to sign an agreement to keep such information secret.
How to Protect Inventions and Trademarks
To protect an invention, you must obtain a patent. If you invent something and do not patent it, others can use your product without penalty. The basic steps to obtaining a patent include:
- Complete a patent search to ensure someone else didn't already patent your idea.
- Prepare to file for a patent by compiling the results of a patent search, technical drawings and descriptions, and other data that's required.
- File a patent application. You must use a registered agent to file. You can search for a registered patent attorney or agent online. (Use this USPTO link to avoid scammers!)
In rare cases, avoiding a patent has proven to be highly successful, too. Patents provide protection for twenty years. Coca-Cola decided not to patent its formula because the company expected the popular soft drink to endure longer, and that decision has paid off. Creating a patent provides detailed information about your invention to the public, and Coke wanted to keep its formula from being duplicated, a tactic that proved successful for the company, but more often can hurt an inventor's opportunity to generate profit.
Trademarks and service marks are not as complex to register as patents, but can still be quite complex. They're similar to copyrights in the sense that use of a service or trade mark is granted partial protection simply by placing it in use before anyone else. A step-by-step guide is found on the USPTO's website, which also allows electronic filing.
When to Hire an Intellectual Property Attorney
Attorneys can help you avoid legal pitfalls that you might not recognize when seeking legal protection for your creation, but can also be quite expensive and a waste of time and money if you don't need one.
For copyright, it's not necessary to hire an attorney unless someone has infringed on your work. If this has happened, consider how much actual money you are losing because of the violation. It will cost several thousand dollars and possibly much, much more if you have to go to court to force compliance.
For trademark and service mark registrations, you may want to consider hiring an attorney to avoid missing something important in the registration process. Expect it to cost a few hundred dollars, but not more than about $1,500, for a simple registration.
For patents, it's necessary to decide whether to use a patent agent, a patent attorney, or both. The difference between them is that the lawyer has a law degree. Otherwise, both have a technical degree that allows them to get registered with the USPTO, and they have passed an exam showing that they can conduct searches and understand the patenting process fully.
It's usually more expensive to hire the attorney. If you do not require legal advice, a patent agent may be a more economical solution. If you do require some legal services, you may be able to save money by hiring the agent to do the patent search, and hiring the attorney for the rest of the job. Either way, expect to spend at least a few thousand dollars to get your idea patented.
Technically, you can file for a patent yourself, but be warned - it's not a simple process, and if the application is not thorough enough, you could find yourself with very little protection at all or have your application denied altogether.