Definition of Intellectual Property

Defined as the ownership of ideas, unlike assets, IP is a collection of ideas and concepts.Intellectual property is defined as the ownership of ideas.

Unlike tangible assets to your business such as computers or your office furniture, intellectual property is a collection of ideas and concepts.
Characterized as non-physical property that is the product of original thought, rights do not surround the abstract non-physical entity – instead, intellectual property rights surround the control of physical manifestations or expressions of ideas.  What’s important to know is:

  • Intellectual property protects rights to ideas by protecting rights to produce and control physical instantiations of those ideas.
  • Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law.
  • Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs.
  • Common types of intellectual property rights include copyrights, trademarks, patents, industrial design rights and trade secrets in some jurisdictions.

There are only three ways to protect intellectual property in the US: through patents, trademarks or copyrights. A patent applies to a specific product design; a trademark to a name, phrase or symbol; and a copyright to a written document. All three methods have limitations and there is no ‘one way’ to protect an idea.

Copyright Protection

Copyright protection gives the copyright holder the exclusive right to copy the work, modify it (create “derivative works”), and distribute, perform and display the work publicly.
A copyright will protect the following categories of works:

  • Literary Works
  • Musical Works, including any accompanying words
  • Dramatic Works, including any accompanying music
  • Pantomimes and Choreographic works
  • Pictorial, Graphic and Sculptural works
  • Motion Pictures and other Audiovisual works
  • Sound Recordings
  • Architectural Works
  • Computer Programs (the graphical user interface) and websites

Ideas or concepts do not have copyright protection. Copyright protects the expression of the idea, but not the ideas themselves.
Generally, the only protection for ideas and concepts is through trade secret law and/or confidentiality agreements, which provides a contractual remedy for misuse or disclosure of the idea.

Patent Protection

Patents protect processes, methods and inventions that are “novel,” “non-obvious” and “useful.” If granted, a patent gives you a 20-year monopoly on selling, using, making or importing an invention into the United States. The requirements for a patent are complex, but here they are in a nutshell:

  • Your work must be novel. Must not be known or used by others in this country, or patented or described in a printed publication here or abroad, or in public use or for sale in this country more than one year prior to the application for patent.
  • Your work must be non-obvious. Must not be obvious to a person having ordinary skill in the pertinent art as it existed when the invention was made.
  • Your work must be useful. Must have current, significant, beneficial use as process, machine, and manufacture, composition of matter or improvements to one of these. Refer to the Patent Office for specifics. Patent protection requires full public disclosure of the work in detail and therefore precludes maintaining any trade secret protection in the same work.

Trademark Protection

A trademark is a ‘brand name’. It is any word(s) or symbol(s) that represent a product to identify and distinguish it from other products in the marketplace. Examples: A trademark word example would be “Rollerblades.” A trademark symbol would be the peacock used by NBC.

A trademark can be registered in three ways:

  1. By filing a “use” application after the mark has been used
  2. By filing an “intent to use” application if the mark has not yet been used
  3. In certain circumstances in which a foreign application exists, you can rely on that

The ™ mark may be used immediately next to your mark. The ® registration symbol may only be used when the mark is registered with the PTO. It is unlawful to use this symbol with your mark before receiving an issued registration from the PTO.

A mark must be distinctive. The more distinctive it is, the easier your trademark will be to enforce. This is why so many trademarked products have unique spellings.

Trademark rights last indefinitely if the company continues to use the mark to identify its goods or services. When the mark is no longer being used, the registration is terminated. The initial term of federal trademark registration is 10 years, with 10-year renewal terms.

Trade Secret Protection

Unlike copyrights, trademarks and patents, a trade secret is not registered with any government office. Clients can declare their trade secret to their attorney in a notarized and signed disclosure, which makes the trade secret their property forever – or until someone leaks it.

Trade secrets refer to unique items, such as recipes, and provide a business with a competitive advantage, but which cannot be safeguarded under copyright, trademark or patent protection. The best form of protection for these items is to keep them a secret.

The best way to secure trade secret information is to restrict access to the secret and have individuals and companies sign nondisclosure agreements with you if they know some aspects of that secret. If your trade secret remains secret, royalty income from it can last significantly longer than the patent period.

Economic Growth from IP

Economists estimate that two-thirds of the value of large businesses in the US can be traced to intangible assets. “IP-intensive industries” are estimated to generate 72 percent more added value (price minus material cost) per employee than “non-IP-intensive industries”.

Eric Alspaugh
© 2011

Eric B. Alspaugh, Esq. is a registered patent attorney specializing in the prosecution and litigation of utility and design patent applications, and obtaining protection for all intellectual property.  Eric is a member of the Orange County California Bar Association and is licensed to practice in state and federal court.  For more info:  Visit www.alspaughlaw.com or email eric.alspaugh@alspaughlaw.com

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