What is Intellectual Property?
People often ask attorneys at the Firm to explain intellectual property. Below you will find a quick explanation of the types of intellectual property.
Patents can be broken into two categories: your patents and the patents of others. If you are granted a patent, you have 20 years from the filing date to exclude others from practicing what is claimed in your patent. If you do not properly follow the rules from the beginning you may never obtain the patent or the patent obtained may be of little value. The patents of others can cause problems as well. You must be aware of and not practice the valid enforceable patent rights of others without permission.
Patents can be further categorized as utility and design patents. Most people are familiar with utility patents, which protect the functional aspects of an article, composition, or a process. Once granted, the owner of a utility patent can prevent others from making, using, or selling the article or from using the process claimed in the utility patent.
A design patent protects the overall ornamental appearance, but non-functional aspect of an article. Once a design patent is granted, the owner can prevent others from making, using, or selling designs that closely resemble the patented design. An article often has both functional and ornamental characteristics, meaning one can apply for both a design patent and a utility patent based on the same article. For example, a computer mouse incorporates both ornamentality and functionality. The curved appearance of the mouse makes the product ornamental. On the other hand, the curved shape makes the article comfortable and therefore functional. Consequently, one could apply for a utility patent to protect the functional aspects of the mouse and a design patent to cover the ornamental appearance of the mouse.
A trademark is a symbol, which can be a word, a graphic, or even a color or smell, that denotes the supplier and quality of the good or service. The symbol can become associated with the quality of the good, making trademarks are important in the consumer and industrial arena. Trademarks are useful to sell your product and to prevent others from palming off their goods as yours.
Copyrights are usually understood in the context of musicians, artists, painters, actors, and authors. However, businesses often overlook copyrights as a method of protecting their intellectual property. For instance, a business can copyright its manuals, test methods, policies, and procedures. In this manner, one can enforce against the copying of the property and not have to prove damages in order to prevail. As with patents, one cannot copy the works of others. Yes, even newspapers and journal articles at the local university cannot be copied. The Firm highly recommends that businesses join the Copyright Clearinghouse.
Trade Secrets are the most overlooked and misunderstood intellectual property right. A trade secret lasts forever, however, very specific rules must be followed. Secrets must be identified, cataloged and kept secret (e.g. locked in a room, no general access, employees advised it is secret). The proper administration of trade secrets goes hand-in-hand with Agreement Facilitation & Management.
It is particularly important to pay attention to the various agreements signed by your company or you, as an individual. Confidentiality agreements are contracts where you and the other party agree to use certain information in a limited manner. One must pay close attention to scope, joint work, and expiration dates of these agreements. Joint Development Agreements involve two or more parties working together for a common goal, with some type of intellectual property typically expected. Who gets what rights and how the intellectual property is to be procured, maintained, and maximized is a large focus of these agreements. Licensing agreements go both ways; you can license someone’s intellectual property and know-how or you can license your intellectual property and know-how to others. Even purchasing and sales agreements should have consideration of the intellectual property being transferred with the sale or purchase of the good or service. Employment agreements should also address intellectual property rights.
Intellectual Property Management
IP Management is term that means anything from making sure that maintenance fees are paid to aggressively seeking to maximize the value of one’s intellectual property.