There are only three ways to protect intellectual property inthe United States: through the use patents, trademarks orcopyrights. A patent applies to a specific product design; atrademark to a name, phrase or symbol; and a copyright to a writtendocument. All three methods have limitations–there’s no oneperfect way to protect an idea.
Copyright Protection
- 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 (sometimes the graphical user interface) andwebsites
Copyright protection gives the copyright holder the exclusiveright to copy the work, modify it (that is, create “derivativeworks”), and distribute, perform and display the work publicly.
Ideas or concepts do not have copyright protection. Copyrightprotects the expression of the idea, but not the ideas themselves.For example, if I ask you what a chair is, you get a picture inyour head; the picture I get in my head is different from thepicture you get in your head and probably also different from thepicture Buffy gets in her head. These are the “ideas” of what achair is. However, if you were to draw the chair you envisioned inyour head or use words to describe that chair, it’s an “expression”of the idea–and that’s what’s protected by copyright.
Generally, the only protection for ideas and concepts is throughtrade secret law and/or confidentiality agreements, which provide acontractual remedy for misuse or disclosure of the idea.
Patents
- Your work must be novel. This means it mustnot be known or used by others in this country, or patented ordescribed in a printed publication here or abroad, or in public useor for sale in this country more than one year prior to theapplication for patent.
- Your work must be non-obvious. This meansit must not be obvious to a person having ordinary skill in thepertinent art as it existed when the invention was made.
- Your work must be useful. This means thatit must have current, significant, beneficial use as process,machine, manufacture, composition of matter or improvements to oneof these. According to the Patent Office: “The word ‘process’ isdefined by law as a process, act or method, and primarily includesindustrial or technical processes. The term ‘machine’ used in thestatute needs no explanation. The term ‘manufacture’ refers toarticles that are made, and includes all manufactured articles. Theterm ‘composition of matter’ relates to chemical compositions andmay include mixtures of ingredients as well as new chemicalcompounds. These classes of subject matter taken together includepractically everything which is made by man and the processes formaking the products.”
Patent protection requires full public disclosure of the work indetail and therefore precludes maintaining any trade secretprotection in the same work.
Trademarks
A trademark can be registered in three ways:
- By filing a “use” application after the mark has beenused.
- By filing an “intent to use” application if the mark has notyet been used.
- In certain circumstances in which a foreign application exists,you can rely on that.
The (TM) mark may be used immediately next to your mark. The ®registration symbol may only be used when the mark is registeredwith the PTO. It is unlawful to use this symbol with your markbefore receiving an issued registration from the PTO.
What qualities make for a strong trademark? The cardinal rule isthat a mark must be distinctive. The more distinctive it is, theeasier your trademark will be to enforce. This is why so manytrademarked products have unique spellings.
Trademark rights last indefinitely if the company continues touse the mark to identify its goods or services. When the mark is nolonger being used, the registration is terminated. The initial termof federal trademark registration is 10 years, with 10-year renewalterms.
Trade Secrets
Trade secrets refer to items such as recipes that are unique andprovide a business with a competitive advantage, but which cannotbe safeguarded under current forms of idea protection such ascopyright, trademark or patent. The best form of protection forthese items is to keep them a secret. One of the most famous andbest-kept trade secrets is the formula for Coca-Cola.
The best way to secure the information for a trade secret is torestrict access to the secret and have individuals and companiessign nondisclosure agreements with you should you enter into arelationship with them which will require them to know some aspectsof the secret. If someone independently develops orreverse-engineers your trade secret, there’s nothing you can do. Ifsomeone does leak it, you can sue for theft. Suing, however, cannotstop the person from using the leaked information. So although youmay get money from the suit, you lose the larger potential profitsyou could have made from the idea. Still, if your luck holds andyour trade secret remains secret, royalty income from it can lastsignificantly longer than the patent period.
