Intellectual Property

"Intellectual Property" is a type of intangible property that is a creation of the mind, including:

  • Inventions
  • Literary works
  • Artistic works
  • Designs
  • Symbols
  • Names
  • Images

In the United States, intellectual property is automatically, or can often be, protected by the following regimes (in no particular order):

  1. Copyright
  2. Trademark
  3. Patent
  4. Trade Secret

The following is an introduction to each of these intellectual property types, but is by no means comprehensive or exhaustive.

1. Copyright

When a work is "fixed in a tangible medium of expression," copyright is said to "inure" in the author of the work, automatically. That said, copyrights can be registered with the U.S. Copyright Office.

The Copyright Act grants certain exclusive rights to copyright holders, as set forth in 17 USC § 106:

  • to reproduce the copyrighted work in copies or phonorecords;
  • to prepare derivative works based upon the copyrighted work;
  • to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
  • in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
  • in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Copyright protects:

  • Books
  • Music
  • Paintings
  • Photos
  • Video
  • Computer Software

Duration: The author’s life plus an additional 70 years or, in the case of "works made for hire," 95 years from first publication or 120 years from creation (for works created after January 1, 1978).

There is an exception to copyright law, which is often called Fair-Use, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

2. Trademark

A trademark is a word, phrase, symbol, design, color, smell, sound, etc. or combination of such. Trademarks can either be common law, state, or federal.

Trademarks are the most common form of intellectual property protection used to protect brands.

Duration: Perpetual

Unlike other types of intellectual property protection which are of limited duration, such as copyrights and patents, trademarks can be perpetual.

A trademark, combined by the brand associated with it, may often be a business' most valuable assets. For example:

  • Apple
  • Google
  • Cocac-Cola
  • BMW
  • Tesla
  • Nike

3. Patent

A patent is a government-sanctioned form of monopoly to induce companies to advance technology for the benefit of the public.

Patents are said to benefit the public because a condition to the government-sanctioned monopoly is that the invention becomes public domain after the patent has expired.

Duration: 20 years from the filing date or 17 years from issue (generally)

Generally, patents come in three different forms:

  • Utility
  • Design
  • Plant

But not just every invetion can be patented, rather, an invention must meet the following requirements:

  1. Novel
  2. Useful
  3. Non-obvious

Note that an invention must be of a subject matter that can be patented pursuant to the Patent Act, which states:

Whoever 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 therefor, subject to the conditions and requirements of this title.

25 USC § 101.

Please note that we are not licensed patent attorneys and do not purport to be, rather, this discussion of patents is solely for educational purposes and not for the purpose of advertising or offering patent services.

4. Trade Secret

Information with independent economic value can be characterized as trade secret and can be protected via contract, including:

  • Blueprints
  • Chemical formulas
  • Research and development
  • Marketing strategies
  • Manufacturing processes

Duration: Perpetual

Businesses often choose to protect their inventions via trade secret as opposed to patent because there is potentially no expiration of a trade secret, other than when it is properly disclosed.

Perhaps the most notable invention that is protected by trade secret is the Coca-Cola formula.

This brief overview of some important considerations associated with intellectual property is by no means comprehensive. Always seek the advice of a competent professional when making important financial and legal decisions.

Intellectual Property AttorneySteve Cook is an intellectual property lawyer at Cook & Cook. Although his main office is located in Mesa, Arizona, he represents clients throughout the United States.

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