Introduction to Intellectual Property
Simply, intellectual property is the creation of the mind such as inventions; literary and artistic works; designs; symbols; names; and images used in commerce. IP is generally protected through trademark, copyright, patent, and trade secret laws. These laws are rooted in the United States Constitution to enable people to earn recognition and financial benefit from what they have invented or created.
Article 1, Section 8, Clause 8 of the United States Constitution states:
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
The IP system aims to foster an environment in which creativity and innovation can flourish by striking the right balance between the interests of innovators and public interest. For example, the length of time an author or inventor can maintain exclusive rights over their writings and discoveries has long been a topic of debate since the founding of the United States. If it is too short the authors or inventors may not achieve financial gains. If too long, then the authors or inventors may obtain a monopoly inhibiting future writings or inventions.
The United States system protects the writing and discoveries of authors and inventors through intellectual property laws. These laws only protect the creations of your mind in the United States and not in foreign countries. The main areas of IP in the United States are trademarks, copyrights, patents, and trade secrets.
A trademark is a recognizable name, logo, design, or slogan which distinguishes products or services of a particular trader from similar products or services of other traders. Famous trademarks include the Apple logo, the Nike swoosh, and even Mickie Mouse.
A copyright gives the creator of an original work the exclusive right to make copies of the original work, for a limited time (typically the Author’s life plus 70 years). Copyright is the broadest form of IP and can apply to a wide range of creative, intellectual, or artistic forms, or “works.” Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed such as in a book, a painting, computer coding, sound recording, and many more.
A patent is a form of a right granted by the government to an inventor, giving the owner the right to exclude others from making, using, selling, offering to sell, and importing an invention for a limited period of time, in exchange for the public disclosure of the invention. The invention must be new, non-obvious, and have some utility or industrial applicability to obtain a patent. The inventions can range from products to processes.
To stimulate innovation, the patent owners are obligated to disclose the specifications of their inventions to the public. Of course, the patent owner can exclude others for a limited time, currently 20 years from the date of filing.
Before an invention can become a patent, it normally starts off as a trade secret.
A trade secret is a formula, practice, process, design, instrument, pattern or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors and customers. There is no formal government protection granted; each business must take measures to guard its own trade secrets (e.g., the Formula of its soft drinks is a trade secret for Coca-Cola.).
Most intellectual property before becoming public knowledge can be considered a trade secret. Although these are the four major areas of IP, it can expand into many areas as shown in the picture above. There are many cross areas and considerations for IP, such as:
- Entertainment Law
- Name & Likeness Laws
- Privacy / Publicity Law
- Startup / Entity Formations
Intellectual property is a very versatile area of law and is normally central to the longevity of a business or endeavor.