What is Intellectual Property?

In this modern age of technology, intellectual property laws and their protections have become much more relevant, making it worthwhile to have some knowledge of the subject. "Intellectual property" involves three major areas: patents, trademarks, and copyrights.

Patents

A patent is the grant of a property right by the federal government to an inventor. A patent lasts 25 years from the date on which the application for it was filed. A patent gives "negative" rights to its owner. Instead of the right to make, use, sell, or import an invention, a patent is the right to exclude others from these activities.

A person who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent." Collectively, the items that can be patented encompass most man-made products and the processes for making them. "Usefulness" means having a useful purpose and, in the case of a machine, being operable for the intended purpose. The subject of a patent must be nonobvious. "Nonobvious" means that the invention is different enough from existing technology and knowledge that it would not be obvious to a person with skill in the field.

Our courts have set limits on what can be patented, excluding laws of nature, physical phenomena, and abstract ideas. A patent can be granted for a new machine, for example, but not on the idea or suggestion of the new machine. A complete description of the subject matter for which a patent is sought is a required part of the patenting process.

Trademarks

A trademark is a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source or origin of goods or services. A service mark is like a trademark except that it refers to a service instead of a product. Trademark rights can be used to prevent others from using a confusingly similar mark but not to prevent the making of the same goods or selling such goods under a nonconfusing mark.

The filing of a registration application with the federal Patent and Trademark Office is one way to establish rights in a mark, but rights also can arise simply from the actual use of a mark. There are greater benefits from registration, however, such as a presumption that the owner of the registered mark is, in fact, its owner and is entitled to use it across the country. Unlike patents and copyrights, trademark rights can last as long as the trademark is used to identify goods or services, although the registration must be renewed every 10 years and certain information must be filed with the government to keep the registration alive.

Copyrights

A copyright protects the writings of an author of "original works of authorship" from unauthorized copying. Published and unpublished works of a literary, dramatic, musical, or artistic nature are protected by copyright law. Copyrights are registered in the Copyright Office in the Library of Congress, but a copyright is secured automatically when the work is fixed in a copy or phonorecord for the first time.

Federal law gives the owner of a copyright the exclusive right to do, or to authorize others to do, the following things: reproduce the work in copies or phonorecords, prepare derivative works, distribute copies or photorecords to the public, perform the work publicly, display the work publicly, and, for sound recordings, perform the work publicly by means of a digital audio transmission. Generally, any work created after January 1, 1978 is protected for the author's life, plus 50 years.

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