IP and Patents – Part 1 New Inventions and Ideas: Available Protection

So, you’ve created something new. It might be a work of art, a better mousetrap or something else.  Maybe it will save the world, or maybe it will just entertain people for a couple hours. But, it’s original and, therefore, worth something, at least to you.

Congratulations! In many respects, our society is built on innovation.

The next thing you might want to do is contemplate whether to guard your work from someone who might want to steal it, copy it or otherwise use it and profit from it without your consent. You have intellectual property (IP) and it needs to be protected.

That means you need to take some action and make some decisions.

To know where to start, it’s best that we first understand some basics about IP types and how it is protected.

In the US, there are four kinds of protection available:
1. Patents – a patent protects the inventor from others who might make, use, offer for sale, or sell the invention.[i]   Patents have kept others from duplicating the Toyota Prius hybrid car, the Sony Blu-Ray high definition technology and balloon-expandable heart stents invented by Johnson & Johnson (all three of these examples were challenged in some way in court).
2. Trademarks – a trademark protects a word, phrase, symbol or design that is used to distinguish one source from another. For example, trademarks keep Pepsi from naming its product Coke (and vice versa), they prevent Burger King from naming its hamburger a Big Mac (in case it ever wanted to), and they prevent some guy who builds custom cars in his garage from naming his enterprise Ford Motor Company. Trademarks identify and distinguish the source of the goods of one party from those of others.
Patents and trademarks are processed at the US Patent and Trademark Office. There is a huge amount of information at their website: http://www.uspto.gov.
3. Copyrights – a copyright protects original works by one author from being copied by another. These include “literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.”[i] Copyrights in books prevent outright plagiarism, as well as photocopying the work and using it without the permission of the copyright holder. This also applies to other forms of expression – not just the written word. As an example, the Happy Birthday song is copyrighted. Playing or singing the song in a public performance (private, not-for-profit performances are OK) can mean hefty fines – even the Girl Scouts were warned about paying a fee if campers sang it.[iii]
4. Trade secrets – i.e., keep your mouth shut. Just don’t tell anyone about your IP except for those that need to know. And, make sure those that need to know sign a non-disclosure agreement that includes a non-compete clause and has severe penalties written in. Under some circumstances, trade secrets can be effective. The most popular one is probably the recipe for Coca Cola, which has been a secret for over a century.

In part 2, we will discuss the initial steps in protecting your idea.

Contributed by:  David Walker, SBTDC

[i] http://www.uspto.gov/patents/resources/general_info_concerning_patents.jsp#heading-2 At this link, you can find the following explanation: “The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO.”






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