What is Intellectual Property?

In general, property law defines rights of ownership to objects, which can be either tangible or intangible. Intellectual property law governs ownership rights to intangible creations of the mind.

Types of Intellectual Property Protection

Patents

The law encourages creativity and invention by rewarding creators with protected rights and limited exclusivity. But as a policy consideration, knowledge and designs should eventually be made available for public use. Patents offer reciprocity for inventors and the general public, providing a limited statutory right of exclusive use in exchange for public disclosure. Under the statutory language of 35 U.S.C. § 101, patents are expressly limited to protecting a "new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." Patents, then, do not protect general ideas or abstract concepts.

There are three major types of patents:

1. Utility patents are the most common type, and protect the process or function of an invention. These patents have a 20 year term.
2. Design patents protect "any new, original and ornamental design for an article of manufacture." Design patents have a 14 year term.
3. Plant patents give creators protection for "asexually reproduc[ing] any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state." Plant patents last for 17 years.

Trademarks, Service Marks, and Trade Dress

Trademarks include any "word, name, symbol, or device, or any combination thereof" used by a person or business in commerce. Trademarks are used to distinguish products in a given market, and owners enjoy protection of their trademark in connection with goods upon which the mark is used; trademarks are not protected against use with other goods. Service marks, likewise, include any "word, name, symbol, or device, or any combination thereof" used in commerce to distinguish services in a given market. The law does not treat service marks and trademarks differently. Collective marks are a specific type of trademark used by the members of a cooperative, group, or organization to indicate membership.

Trade dress refers to the appearance or packaging of a product, which can include the shape, size, and color.

Copyrights

Copyright protects "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived or reproduced, or otherwise communicated, either directly or with the aid of a machine or device." This right automatically attaches to works once they have been fixed in a tangible medium; the ownership of the work vests with the author(s). Works protected include, but are not limited to, literary works, music, dramatic works, pantomimes and choreography; pictorial, graphic, and sculptural works; motion pictures and other audio visual works; sound recordings; and architectural works. Compilations or collections, in which existing work is organized in such a way as to create an original work of authorship, are also protected. Copyright protect particular expressions in a tangible medium, not the underlying ideas, principles, or concepts conveyed by them.

Assignments and Licensing

Assigning intellectual property means that the title to that property is transferred. Most of the time, the assignor must transfer all of the rights to an assignee, although copyrighted property can be an exception. If the assignment does not transfer the total interest, then it may be considered a license.

A license, by contrast, is the grant of permission from the licensor to the licensee to use property with limited rights. Licensing property does not transfer title, but does grant the licensee certain rights, usually for a fee or royalty.

Why Protecting Intellectual Property is Important

A strong and comprehensive IP portfolio goes a long way in ensuring a company a fighting chance in a competitive market. Patents help protect and incentivize innovation, which gives companies a competitive advantage as they enjoy exclusive use of their designs. Trademarks and the like help to identify and distinguish a product, which over time creates brand recognition as valuable any technical design or device, often even more so. Associating a quality product with a distinguishable label and appearance can lead to a point where putting that mark on any product instantly signifies quality. The owners must protect that mark's prestige from being used with substandard goods. The ability to assign/license either of these types of intellectual property creates more possibilities with mergers and partnerships that can strengthen businesses.

Copyright protection ensures works will be protected, and their authors properly recognized and rewarded. The protection of an author's rights is imperative to promoting creativity, and ultimately safeguarding ability to commercialize that creativity.

Call us. Howard IP Law Group, P.C. can help you identify value of IP you own and how to protect it. We can work through the facts and questions with you and point out pitfalls, saving you time, money and headaches. Together we can craft an approach tailored to your situation and plans.

Please note that the content of this page should only be used as a general reference, and is not a substitute for legal advice. It is recommended that you seek the assistance of legal counsel.