Intellectual Property
Intellectual Property is a term used to encompass the property rights associated with Patents, Trademarks, Copyrights, and Trade Secrets. Patents are directed towards useful inventions. Trademarks are used to identify the source of goods and services used in commerce. Copyright is used to protect creative expression. Trade secret laws are a collection of state and federal laws meant to protect methods, formulas, customer lists and other information which is kept secret to prevent unfair business practices. As with other types of property, these rights may be purchased, sold, or licensed.
Domestic and Foreign - Intellectual Property laws of the US and other countries are territorial, meaning that US patent, trademark, or copyright protection is enforceable only in the US and at its boarders. Foreign registration is required for protection in foreign jurisdictions.
Patents
A patent provides the holder with a right to exclude others from practicing the invention. As an incentive for innovation, the government grants a limited monopoly in exchange for a full disclosure of how to make and use the invention. The boundaries of the invention and the rights of the patent holder are metered out by the claims.
A patent does not bestow a license. If an invention requires another patented invention to operate, then a license may be necessary to freely practice the invention. Infringement may occur even if unintentional. A Freedom to Operate (FTO) search may be performed to uncover patents which may be infringed on by practicing the invention.
Utility patents protect the functional elements of usefull devices, compositions, systems, or methods. Infringement occurs when someone performs or reproduces all of the elements recited in any one claim.
Design patents protect the ornamental appearance of a useful item. Examples include, furniture, clothing, drink or food containers, as well as fonts and computer icons. A competing product need not be identical to infringe on a design patent, but need only be "substantially similar."
Trademark
Trademarks are typically words or symbols used to identify a product or service used in commerce. Trademarks may also include sounds, the overall look of a business, or even smells associated with a product or service. Trademark protection may last indefinitely as long as the trademark is in use for a product or service.
Common Law protection and Federal Registration - In the US, trademarks are protected by common law as soon as they are used in commerce. However, common law protection is limited geographically to where the use has occurred. Federal registration is recommended to provide national protection.
Before adopting and investing in a trademark, it is recommended that a search be performed to identify similar trademarks already in use that may be infringed. The standard for trademark infringement is whether it creates a "likelihood of confusion." A mark does not need to be identical to infringe if it sounds like or looks like another trademark. A likelihood of confusion would exist if a typical customer might believe both products or services were from the same source.
Copyright
Copyright protects the creative expression of an original idea. It does not protect the idea itself and does not protect facts. Copyright requires independent creation plus a modicum of creativity.
Common Law protection and Federal registration - Under current US law, copyright attaches to a creative work as soon as it is "fixed in a tangible medium." Registration is not required, but if a work is not registered when an infringement occurs, enforcement of a copyright might not be practical due to legal expenses or difficulty in proving damages. If the work is registered with the U.S. Copyright Office, a copyright owner may be entitled to attorney fees and statutorily damages from the infringing party. This is an incentive for copyright registration which may make enforcement one's rights a practical resolution, where the expense might otherwise be prohibitive.
Trade Secrets
Trade secrets are protected by state and federal laws directed at preventing unfair business practices. Trade secrets do not require formal registration but do require business practices designed to keep information secret. Typically this means limiting the access of information to a need-to-know basis and instituting non-disclosure agreements with employees and third parties.
