Intellectual Property

What is a Patent? A patent is an exclusive right granted by the US government to an inventor for a limited time to exclude others from:

• Making, using, offering for sale, or selling the invention in the US
• Importing the invention into the US

What can be patented? Patents protect your new and useful inventions and discoveries such as machines, materials, chemical compositions, processes, and designs.

What cannot be patented? Anything that is already publicly known, as well as unprocessed or unmodified natural materials, laws of nature, and abstract ideas.

What types are patents are available? The primary types of patents include:

• Utility Patents The most common type of patent covers processes, machines, articles of manufacture, physical or chemical compositions of matter, or any unique and valuable improvements. A utility patent is valid for twenty years from the filing date of the patent application.
• Design Patents A design patent protects the cosmetic features of a creation, whether it is a physical object or a graphical user interface on a computer display. The design patent is valid for fifteen years from the date of grant of the registered patent.
• Plant Patents A plant patent protects a distinctive asexually reproduced type of plant. The plant patent is valid for twenty years from the application’s filing date.
• Provisional Patents A provisional patent application acts as a placeholder for a utility application – it is a scaled-back application that grants a filing date and provides one year to complete a full non-provisional utility application. This allows time to determine marketability and seek licensing agreements before investing entirely into the patent process. However, a provisional application does not lead directly to a granted patent, and if a non-provisional application is not filed within one year, the provisional will expire.
• International Patents Inventors may protect their inventions overseas in two ways: First, applicants can file directly in a foreign patent office. In most cases, if it is filed within one year of a corresponding US application, the foreign application will be treated as if it was filed the same day as the US application. Second, applicants can file what is known as an international or “PCT” application, which is placed on record at the World Intellectual Property Office in Geneva, Switzerland. International applications do not lead directly to granted patents, but they provide a streamlined procedure that makes it easier to cheaper to file applications in multiple foreign countries.

What is a Copyright? Copyright protects works of authorship fixed in any tangible form or medium of expression. A copyright is an exclusive right granted by the US government to authors for a limited time to exclude others from: reproducing works, distributing copies, publicly performing, or displaying works, making derivative works, and transmitting certain types of works over networks and broadcasts.

What can be copyrighted? Copyright protects works of authorship fixed in any tangible form or medium of expression, including:

• Literary works, e.g., books, periodicals, manuscripts, films, tapes, and computer programs
• Musical works, including accompanying words
• Dramatic works, including accompanying music (e.g., scripts and screenplays)
• Pantomimes and choreographic works
• Pictorial, graphic, and sculptural works, e.g., fine, graphic, and applied art and art reproductions, photographs, prints, maps, models, and technical drawings
• Motion pictures, video games, and other audiovisual works
• Sound recordings
• Architectural works

What works are not protected by copyright?

• Ideas, systems, methods, or processes
• US government works
• Typefaces, although copyright protection is available for computer programs that generate fonts and typefaces

How long does copyright protection last?

• For works created by authors, copyright protection lasts for 70 years after the author’s death
• For “works for hire,” which are usually created as part of employment or under special commission, copyright protection lasts 95 years after it is first published or 120 years after creation, whichever occurs first

Do I need to publish or register my work to be protected? Copyright protection exists from the moment it is fixed in a tangible form, regardless of whether it is published, unpublished, or registered. However, your rights to enforce unregistered copyright are limited, and registration provides numerous benefits, including a presumption of validity, recovery of damages, and possible criminal consequences for willful infringers.

What is a Trademark? A trademark protects products, services, and company identifiers like brands, logos, and package designs. They identify which person or company is the source or origin of goods and services and distinguishes the trademarked goods and services from those made or sold by others.

Trademarks may take the form of:

• Names, e.g., CALVIN KLEIN® apparel and GEORGE FOREMAN® grills
• Brands, e.g., COKE® soft drinks and APPLE® computers
• Designs and Symbols, e.g., Nike’s “Swoosh” design on footwear
• Slogans, e.g., Wendy’s slogan WHERE’S THE BEEF® and De Beers’ slogan A DIAMOND IS FOREVER®

Trademarks may also take the form of:

• Color, e.g., the color of Owens-Corning’s pink fiberglass insulation
• Sound, e.g., NBC Universal Media’s chimes
• Scents, e.g., Hasbro’s Playdough
• Package, product, or store design, e.g., the shape of fragrance bottles or the interior design of a restaurant

Trademarks consisting of colors or packages, products, store designs, or combinations of these features are referred commonly to as “trade dress.”

What cannot be protected as trademarks?

• Marks that are confusingly similar to another’s trademark. This often occurs when the marks are similar in appearance and/or pronunciation and are used on similar goods and services.
• Marks that are overly descriptive or generic of the goods or services they cover, such as “COLD AND SWEET” for ice cream. It is possible for some descriptive marks to eventually become protectable by acquiring distinctiveness through use and customer recognition. However, it is also possible for protection to be lost when marks become generic through improper use, such as “ESCALATOR” for moving stairways.

Does my trademark need to be registered? Unregistered trademarks may be protectable under so-called “common law” rights, but these are limited in both geographic reach and the types of remedies available. Registration at the state and federal levels brings many benefits, including a presumption of validity, statewide or nationwide protection, and statutory and enhanced damages recovery.

What is a Trade Secret? A trade secret is business, financial and technical information kept confidential by its owner through reasonable efforts. Trade secrets are economically valuable because the information is not generally known, and it protects commercially valuable confidential information like business and financial plans, formulas, recipes, and customer information.

For example, Coca-Cola’s soda formula, KFC’s fried chicken recipe, and the source code of Adobe’s Photoshop® software are trade secrets.

How do you protect a trade secret?

Trade secrets are not registered like patents, trademarks, and copyrights. Instead, a business could protect its trade secrets by making reasonable efforts to keep this information confidential, for example, by:

• Never giving your passwords to anyone
• Keeping hard copies of trade secret information in locked files or cabinets
• Never giving confidential information to customers or other individuals outside of the company unless:
  • Authorized by management
  • The recipient has signed a written Non-disclosure Agreement
  • Employee confidentiality covenants in Employment Agreements

How long can a trade secret be protected? Trade secret protection lasts until either:

• The information becomes publicly available
• The owner no longer derives economic value or business advantage from the secrecy of the information
• The owner no longer takes reasonable steps to keep confidential or protect