Intellectual Property Basics: How to Protect Your Original Ideas, Creations, Products, and Processes
In today’s market, where competition and imitation dominate, it is essential to seek the strongest possible protection for any original ideas, creations, products, or processes. Intellectual property is any intangible product of the mind, as opposed to personal (physical) property or real (estate) property. Federal law (rather than state) will generally govern, providing protection in the form of copyrights, trademarks, and/or patents.
Copyright, as the name suggests, protects the rights to copy or reproduce an original work. Copyright protection extends not only to literary, audio, or visual productions, but also architecture, choreography, and computer coding. Trademarks, on the other hand, protect words or symbols used to distinguish one’s goods or services. Trademarks can cover names, marks, or even a signature device that sets one apart from the rest. Patents, in a league all their own, protect innovative products, processes, and designs.
Copyright protection is extensive and very easy to obtain. It begins the moment an original work becomes “fixed” in a permanent medium and, technically, does not even need to be registered. Registration with the U.S. Copyright Office does, however, afford additional “proof of ownership” in the event of future infringement. Copyrights, under 17 U.S.C. Sections 101-106, automatically exist for all original works permanently fixed in “a tangible medium of expression.” In addition, California Law provides additional protection, or “exclusive ownership” of even unfixed (think “memorized, not written”) original works that fall outside of Federal Regulations, though these cases can be more difficult to prove.
Federal copyright protection for an original work generally extends for the life of the author PLUS 70 years. This means that no one will be allowed to use, reproduce, or otherwise benefit from your work without the authorization of you (or your heirs), until 70 years after your life comes to an end. Alternatively, protection may last 95 years from the date of publication or 120 years from the date of creation, depending on the circumstances. Copyright offers impressive protection which is the longest guaranteed term of any intellectual property.
A trademark can be any symbol, word, or device used by a business to distinguish its goods or services from others. Contrary to the guaranteed terms of copyright protection, trademarks tend to be much less predictable. Where copyrights become effective upon an original work becoming “fixed,” a trademark comes into existence upon use in commerce and protection continues until the mark is no longer used in trade.
Trademark protection, under 15 U.S.C. Sections 1111-1129, prevents competitors from using confusingly similar marks. In general, a trademark will last for the life of a company, or until abandoned. In rare
instances however, trademarks can be lost through public use, where a brand-name becomes the accepted generic name of a product (Think aspirin, linoleum, thermos). While the exact lifespan of a trademark may not be predictable, companies such as Campbell’s(logo created 1898), Coca Cola(logo created 1886) and John Deere(logo created 1876) demonstrate, trademark protection can, under the right circumstances, outlast the terms of many copyrights.
Patents fall into three categories: utility, design, and plant species patents. Utility patents protect novel functional features of products and processes. Design patents cover ornamental designs on manufactured products. Plant species patents, as one would expect, protect new and distinct species of plants and may be of particular interest to certain California entrepreneurs.
Patent law is designed to encourage invention through research and development by providing a temporary “monopoly” in exchange for public disclosure of the invention’s details. While a patent’s protection extends well beyond a decade, the application becomes public record 18 months after filing. This means that anyone may access and learn from the information within.
Patent law is complex and is the only intellectual property granted solely by the government, rather than coming into existence through use. Patents must be filed and granted by the U.S. Patent and Trademark Office before protection begins. Only federal patent attorneys (or agents) have the authority to file patent applications. Since the process can be costly and time-consuming, it is recommended that a patent application be well-planned before filing.
- Utility Patents, under 35 U.S.C. Section 101, may be filed for new and useful, nonobvious products and processes. Utility patents protect against the unauthorized use, production, or sale of anything covered under the patent. This protection lasts for 20 years from the date the application is filed.
- Design Patents, under 35 U.S.C. Section 171, may be filed for decorative, new, or original design for manufactured goods. Design patents protect against competitor designs that an ordinary person would find similar. This protection lasts for 15 years from the date the patent is granted.
- Plant Species Patents, under 35 U.S.C. Section 161, may be filed for the discovery and reproduction of new and distinct plant varieties. A plant species patent prevents anyone from reproducing, selling, or otherwise using the species without authorization. This protection lasts for 20 years from the date the application is filed.
Don’t let someone else profit from your dedication and hard work. Make sure that your original ideas, creations, products, or processes are fully protected. A qualified intellectual property attorney can walk you through your current options, next steps, and future considerations. Don’t wait until it’s too late!
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