What Is Intellectual Property?

1. An overview of IP

Intellectual Property refers to original and intangible creations of the human mind. These creations include literary and artistic works of art, technological inventions, original designs and the official names, symbols and images used by commercial businesses.
The overriding concept is that creators should have the right to protect their ideas from being stolen, just as a physical property or land owner has the right to protect his or her physical property from theft. Impermissible use of another’s intellectual property is often termed “infringement.” One who impermissibly uses the IP-protected rights of another is said to infringe that party’s IP.

This means that an author should be able to choose who publishes and distributes his or her book. An independent inventor should be able to stop a larger manufacturer from infringing his or her invention by using their designs, manufacturing products and selling these products without a license. And McDonald’s should have the right to prevent another burger restaurant from using a ‘Golden Arches’ logo. Here, the author has a copyright in a work of authorship, the inventor has a patent to an invention, and McDonalds has a trademark to its logo.

In short, the concept of intellectual property protects original creators from unoriginal copycats. In many countries, creators of IP must first register their claim to their ideas and inventions, expressions of their creations and works of art, and trade names and symbols depicting their business, before they can lay claim to their IP or enforce it.

Historically, the British Parliament was the first political body to legally protect intellectual property, first with The Statute of Monopolies in 1624, followed by the Statute of Queen Anne in 1720, though many historians cite King Henry III for originating trademark protection in 1266 by forcing bakers to use original marks. The term became more frequently used throughout the 19th century, being institutionalized under the auspices of the United International Bureaux for the Protection of Intellectual Property. Later, in 1967, IP took on global authority with the introduction of the United Nations’ World Intellectual Property Organization.

2. What are the types of intellectual property?

There are six major types of intellectual property – patents, trademarks, copyrights, trade secrets, industrial designs and geographical indications.

Patents give an inventor or a patent holder exclusive property rights to the manufacturing, sale or utilization of an invention for a period of time. To gain this property right over a creation, the invention must fulfill the requirements of being nonobvious, being new or original and serving a real purpose or applicability.

Additionally, to receive a patent, the patent holder must publically disclose their invention to the public though a published patent application. Patent holders receive patents in the United States by filing a patent application with the US Patent and Trademark Office, known as the USPTO.

Trademarks, or marks, are words, figures, symbols, logos, phrases, devices or names used to differentiate a good, service or even the name of a company, itself, from other competitors. While the term “trademark” refers generically to what protects the business good will in anything, in some systems the term refers to exclusively to goods and the names of businesses which make and sell goods. For instance, in the U.S., a separate term “service mark” that refers to the name of a service or a company which renders services.

The purpose of trademarks is two-fold. Trademarks ensure that proper information about the actual source of a good or service is available to buyers so that they are not misled by copiers and knock-off producers. The mark also protects sellers who own a trademark by preventing these copiers, knock-off producers or other competitors from misdirecting or confusing purchasers into buying their products

Copyrights are the protections given to authors, artists and other creators the right to protect their creative works. All arts, including dramatic, artistic, music and literary arts are protected. The copyright protects not the idea itself, but the expression of the idea. So, the author gets exclusive rights to the work of authorship, the sculptor gets rights to the sculpture and the screenwriter gets rights to the screenplay. Here, in the copyright realm, the idea is said to be tangibly embodied in the work of art.

But it is not just the expression of the idea that is protected. For any work of art, copyrights supplies its creator with the exclusive right to distribute, perform, sell, display, reproduce or publish the work.

Trade Secrets are any confidential commercial, industrial or manufacturing information that provide a business with a competitive edge. Unlike patents, however, they do not requirement formal registration with a legal authority or government body and have no statute of limitations. They are instead enforceable forever.

Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) states that a trade secret must be secret, have commercial value and must have been consciously protected by the holder through instruments like confidentiality agreements.

Geographical Indications are names, signs or other indicators on products that denote the specific origin of the product. This origin provides the product with specific characteristics or reputational qualities.

This right allows the holders of the right, which may be many, from excluding third parties from using the geographical indication to market their own products, which do not following the parameters of the geographical indication.

3. What is a patent?: an overview

For a comprehensive understanding of patents, look here.

According to the World Intellectual Property Organization, a patent is “an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.”

The category of patents that covers the vast majority of this type of IP is a “utility patent,” often simply called a “patent.” Utility patents protect useful inventions, including in the form of any apparatus, system, article of manufacture, machinery, process, method, biological or chemical composition.

Patents give an inventor or a patent holder exclusive property rights to the manufacturing, sale or utilization of an invention for a period of time, typically 20 years from its filing.

To gain this property right over a creation, the invention must fulfill the requirements of being non-obvious, being novel or original and serving a real purpose or applicability.

Nonobviousness means that an invention could not be constructed easily by an averagely-skilled professional in the relevant commercial field at hand based on prior art. Prior art refers to all the publically-available information relevant in the general field of the invention that existed before the object or process was invented.

Novelty simply means that the invention in question must be new. If knowledge or use of the idea or invention existed prior to the invention date claimed on a US patent application, then the invention fails this criterion. Likewise, if the invention was already patented in a foreign nation at least one year before the date on the US patent application, then it remains ineligible for a patent in the US.

Additionally, a utility patent (which is the category of the vast majority of patents) must have an applicable use. Hence, patents are not issued for inventions that aim to solve imaginary or “purely theoretical” purposes.

Also, to receive a patent, the patent holder must publicly disclose their invention to the public though a published patent application. Patent holders receive patents in the United States by filing a patent application with the US Patent and Trademark Office, abbreviated as the “USPTO.”

In addition to utility patents, countries may protect additional categories of patents. For instance, the US provides these additional types of patents:

• Design Patents cover the original, non-utilitarian design of a product, including its shape, pattern, color, texture, composition and configuration or any other visual characteristic
• Plant Patents cover the discovery or original breeding of distinct plants that can be asexually reproduced by the patent applicant.

The remedy for the patent holder, in case of infringement of the patent by the products of others, is to file a legal action. In the US for instance, the patent holder may file a lawsuit in a federal district court.

4. What is a trademark?

Trademarks are words, symbols, phrases, devices or names used to differentiate a good or service from other competitors.

A service mark serves the same purpose, except that it pertains to a service rather than a good.

The purpose of trademarks are to ensure proper information about the source of a good is available to buyers and to protect sellers by preventing competitors from using similar marks. Trademarks do not, however, stop competitors from selling similar products under different marks.

As an example, many companies sell bottled water. These products are broadly similar, but may have slightly different flavors due to mineral content. A trademark allows the producer of one variety of bottled water to communicate effectively with customers by utilizing an original brand name or bottle design. By trademarking these qualities, the company can ensure that customers will be able to differentiate between it and competitors, rather than getting confused by another water company that mimics the first brand’s design or brand name.

There are three symbols that are recognized in the trademark category:

• _® refers to a registered trademark.
• TM in superscript refers to an unregistered trademark.
• SM refers to an unregistered service mark.

Trademarks that are registered with the United States Patent and Trademark Office have improved protections in court when trying to enforce their trademarks. These benefits include being able to enforce the registered trademark in all US states and territories, the ability to sue for the recovery of legal fees and the ability to recoup lost damages, including profits.

Additionally, registering a trademark may be necessary in order to gain foreign trademark protection, as well as to protect against infringing imports.

Unregistered trademarks, sometimes called common law trademarks, on the other hand, can typically only be enforced within the specific region where they are currently being used in commerce. Additionally, not all geographic regions or states honor unregistered trademarks. Those that do offer limited protection often limit the options to injunctive relief – an order by a court to cease and desist.

Unregistered service marks are then similar in legal protection to unregistered trademarks.

Trademarks, like patents, can be licensed at the discretion of the trademark holder.

Before you file for a trademark, it’s important to either hire an intellectual property attorney or prosecute a trademark search yourself through the United States Patent and Trademark Office’s trademark database. This will ensure that your trademark does not significantly overlap with an existing trademark, which could otherwise upend your ability to obtain registered protection.

After that you can fill out the application on the USPTO’s Trademark Electronic Application System (TEAS). Fees typically sit between $225 and $400.

5. What is a copyright?

Copyrights are the protections given to authors of dramatic, artistic, musical and literary works, whether published or not. This right supplies the author with the exclusive right to distribute, perform, sell, display, reproduce or publish the work.

Though there is no exhaustive list to be found in law, broadly speaking copyrights can apply to novels poems, plays, newspapers, magazines, websites, reference works, non-fiction books, computer programs, online databases, films, dance choreography, musical compositions, photography, drawings, paintings, maps, technical blueprints, advertisements and architectural designs.

This right protects only the expressive form of the work, prohibiting all who would copy or plagiarize it. It does not protect the general subject matter of the work.

Copyrights give their holder both moral and economic rights.

Moral rights refer to the non-monetary interests of the copyright holder, such as reputation.

Economic rights give the copyright holder the ability to salvage monetary awards for use of their copyright by others. By owning the economic rights, the rights owner has the authority to preclude others from reproducing a work, public performing it (in the case of a song), recording it (in the case of plays or films or concerts), broadcasting it by radio, translating it into other languages or adapting it into another art form.

Unlike other forms of IP protection, copyrights exist the moment a work is created. However, in order to bring a copyright infringement case to a US court, you will have to have the copyright formally registered with the US Copyright Office.

Formal registration makes it easier to win statutory damages and be reimbursed for legal costs in the case you need to bring an infringement case to court.

The United States is a party to many international copyright treaties, including the Berne Convention for the Protection of Literary and Artistic Works, administered by the World Intellectual Property Organization (WIPO), the WIPO Copyright Treaty, the Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, and the Brussels Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite. This means that US copyrights must be honored in countries that are party to these treaties and agreements. However, some countries are not parties to any of these agreements. For instance, US copyright law is not valid in either Iran or Ethiopia.

6. What is a trade secret?

The USPTO describes a trade secret as “a formula, pattern, compilation, program, device, method, technique or process,” that is used by one business to gain a commercial advantage over competitors.

Perhaps the most famous example of a trade secret is the recipe for Coca-Cola.

In order to retain protective rights for a trade secret, a firm must take precautions to ensure the secrecy of the information.

For instance, they make all employees, executives and outside consultants sign nondisclosure agreements. If an engineer decides to leave the company and take proprietary information concerning a research project that was specified in the nondisclosure agreement to start his own company or give it to another competitor, the company can sue him for damages.

If a trade secret holder fails to take the necessary step to protect the secrecy of specific information, or it is discovered independently, then the trade secret holder loses the right to that trade secret. Trade secrets never expire. They are either kept or lost.

7. What is a geographical designation?

Geographical designations, also known as geographical indications, are signs or information listed on products that come from specific regions known for that product or that have otherwise stellar reputations.

This is most common among agricultural products that derive their reputation from the climate or soil quality of a particular place, i.e., Champagne from the Champagne region of France or Tuscan olive oil.

Olive oil firms from outside the region of Tuscany are not allowed to use the name Tuscany to sell their products, no matter how similar in physical quality.

The term appellation of origin is often used to specify a specific rendering of a geographical region used on products that get their reputation for quality from a specific region. This includes Prosciutto di Parma, ham that must be monitored and entirely produced in the Parma region of Northern Italy, or Tequila, an alcoholic spirit from the agave plant of Mexico that must meet strict guidelines from the government about where the agave plant is grown, where it can be fermented and what information it must contain on its product label.

Unlike a trademark, which is only used to designate a single firm, geographical indications or appellations of origin can be used by all the firms from the region that meet the presubscribed guidelines and regulations to gain that appellation.

Unlike other forms of intellectual property, geographical designations are normally governed by local government or producers’ association. However, these protections are honored is much the world due to the many signatories of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration.

8. What is an industrial design?

According to the World Intellectual Property Organization, or WIPO, an industrial design is “the ornamental or aesthetic aspect of an article” and may encapsulate “three dimensional features, such as the shape of an article, or two dimensional features, such as patterns, lines or color.”

Roughly speaking, this means the non-functional aspects of a product or its aesthetic features rather than components of its functional design.

The holder of a registered industrial design can legally stop the commercial importation, manufacture or sale of any product if it is even a near copy of a protected design. If someone reproduces a copy or an ostensible copy for non-commercial purposes (i.e. as a hobby), then the design patent is unlikely to be a barrier.

Many common products can receive protection from design patents. Firms or designers can protect original designs for clothing, lighting products, electronics and even creative product packaging.

The necessary criteria to receive a design patent are originality and novelty. Originality is also one of the criteria involved in receiving a utility patent. The difference, however, is the originality involved in the utility patent refers to an article’s use or function, while a design patent requires originality on the basis of how it looks.

To be considered original, it must be substantially different than other known designs or design combinations.

To be considered novel, the design must not have been previously disclosed to the public.

It’s important to know, however, that industrial design rights only apply to the jurisdiction in which you register. In the United States, you can file an application for a design patent with the US Patent & Trademark Office.

There are several parts to the application.

1. You must write a preamble with the title of your industrial design, your name and a short description of the functional use of the product.
2. You need to cross-reference your application with other similar applications and provide those most similar on your application.
3. You must say whether your product or article involved federal funding for research and development in an official statement.
4. You must provide a visual description of the design figures by showing the design from multiple angles.
5. You must provide a featured description.
6. You must provide a single claim, which is a formal and legal definition of the precise parameters of the design specifics that you wish to patent.
7. You must include a drawing photograph or image of the design
8. You must provide an “executed oath or declaration” explained at length in set forth in 37 CFR §1.63

It is not uncommon to hire a professional draftsman to perfect the drawings submitted. Unprofessional or incomplete visuals or drawings may negatively determine the patentability of your article.

Finally, you will need to pay a filing fee, a search fee and an examination fee, although these fees are cut in half for independent inventors and small-business owners.

9. Are there other types of intellectual property: is there consensus in the IP field?

You have now been shown six different varieties of intellectual property. First, there were patents for protecting new inventions, processes or ideas. Then there were trademarks for protecting the authority and identity of the creator rather than the created product or artifact. Then there were copyrights for protecting artistic creations. Later we learned about trade secrets for protecting commercial information relevant to firm competitiveness. There were geographical designations for protecting the authority and identity of products that gain their value from their geographical origin. Last of all, we learned about industrial designs, which are used to protect the ornamental or visual design of a product from being copied.

An important thing to note, however, is that authoritative agencies and legal professionals disagree on what does and does not comprise the category of intellectual property.

For instance, Merriam-Webster Dictionary defines intellectual property as: “property (such as an idea, invention, or process) that derives from the work of the mind or intellect.” This definition would leave out geographical designations though and possibly even trademarks.

The legal authority on this matter is typically Black’s Law Dictionary, which defines intellectual property as a “category of intangible rights protecting commercially valuable products of the human intellect.” The category is defined to include: “primarily trademark, copyright, and patent rights, but also includes trade secret rights, publicity rights, moral rights, and rights against unfair competition.”

This definition is quite broad, but once again it appears to exclude geographical designations. Additionally, this definition includes publicity rights and moral rights—two rights sometimes grouped under intellectual property that this material did not cover. One reason is that moral rights do not have a strictly commercial use and are not protected as such at the federal level in the US. They are typically used in the negative sense to permit the creator full control over one of their creations even after its sold to another entity.

For instance, a European author as part of their copyright protection may be able to prohibit a publisher from editing a book differently for a second edition. This moral right protects the integrity of the author’s wishes, whether or not the publisher’s wish to edit the book is for noncommercial purposes. This means that the creator of a work may simply deny alterations for reputational reasons. This right frequently includes the right of attribution and the right to publish anonymously.

This situation with moral rights would not happen in the US, because the US follows a “merger” doctrine that allows all IP protections to travel to the buyer of the IP. In some other countries, artists and creators retain some rights over their works even after they sell them to publishers or studios.

Publicity rights also do not easily fit under intellectual property, because they are simply a negative personal right that individuals in some countries have, which stop commercial enterprises from using your name or likeness without your permission.

Another disagreement in the IP sector is how many types of patents there are. This material listed four, but many IP authorities do not consider software patents a separate patent type and simply use the traditional utility, plant and design categories.

Still another example of disagreement is that the US Patent & Trademark Office does not include geographical designations in their summary of intellectual property. The World Intellectual Property Organization simply lumps all IP into either copyright or industrial property rights.

All of these disagreements combine to make the world of intellectual property rife for legal disputes, especially when dealing with IP across state boundaries.

 
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