There is some confusion around Intellectual Property. Many believe it consists of one – maybe two things: Patent and Copyright. These are very important, but not the whole suite of Intellectual Property forms. There are at least 2 other very important forms of Intellectual Property: Trademarks and Trade Secrets.
First off let’s start with some definitions. I took these from Nolo.com which has the best definitions for regular humans. You can also go look in the library or on line for Black’s Law Dictionary.
Copyright: A legal means to provide the owner of a creative work to control how it is used, copied, or displayed.
Copyrights cover books, writing, articles, photographs, music, movies, and many other things. You don’t really have to do much of anything in most places to get a copyright – most often just put the notice some where on the work. If you think it might be at high risk of being copied, then in many places you can actually register the copyright. With many technical and academic articles, journals and books there is the concept of “fair use” – giving others the right to use small portions of a work for educational pursuits – so long as proper citation and credit is given.
Patent: The legal right granted by a government body (USPTO in the US) to prevent others from making, using, or selling an invention. There are also design rights / patents, plant patents, software patents, and business method patents(US only).
Patents cover inventions. There are good and bad things about patents – several small articles would be needed to even to begin to understand it fully. One thing that is often not understood by inventors is that when you patent something you have to disclose how it works to the authority that grants the patent. When you do that – the invention is not longer secret – because they publish your disclosure to the whole world. This process, if done properly can be somewhat expensive – especially if you have an attorney do much of the work. There is a limit on how long the patent lasts, it is different in different countries and possibly for different types of invention.
Trademark: Any word, phrase, symbol, color (or combinations of colors), sound or smell that a company uses to identify its products and services.
Trademarks help customers to recognize your products and to ensure they are genuine. They have to be renewed periodically, if registered. They can be quite powerful. How many times have you been asked for a Kleenex (a tissue is the proper way to ask – Kleenex is a trademark of- Kimberly-Clark) or to Xerox something (make a photo copy is correct – Xerox is a trademark of Xerox) or to drink- a Coke- The list goes on. This is both good and bad for the trademark holder – you want the trademark used frequently to build brand awareness BUT not so often for things that are not your products so that the trademark itself is “diluted” or no longer makes reference to your products.
Trade Secret: A recipe, formula, idea, process, or information that provides a business with a competitive edge for as long as it is kept secret.
Lastly Trade Secrets are just that secret. The whole idea behind a trade secret is not to let many people know, disclose it in a formal way, to an EXTREMELY limited number of people on a strict need to know basis. One of the most famous trade secrets is the formula or recipe for Coca-Cola. There are a number of rumors that circulate about the formula – such as it is in a safe in the office of the president in Atlanta or that no one person knows the whole formula, etc. These may or may not be true. The important thing is that they show the lengths that you may need to go through to ensure that a trade secret is secret. A trade secret is in some ways the exact opposite of a patent which depends on its disclosure for protection.
Even with these somewhat simplified definitions, you may be wondering how and when to use each type of intellectual property. As may of my attorney friends love to say- “It depends!” The best thing to do is to work with a really good IP attorney who can help you sort out what works for your situation. If it requires a patent or a trademark and you have little money, a good attorney will often tell you what to do to lower the cost (such as searching the patent databases – available at the library online).
You may be thinking to yourself, do I really need to patent, trademark, or copyright something? Do I need to cover it with a trade secret process? I am only a small company! The answer is yes (or very likely yes). Too many small companies do a woefully inadequate job of protecting themselves. This leaves them vulnerable to copying or to someone else filing a patent and then shutting them down for infringement. It could happen to you. Attached is an article on small and medium businesses and the affects of patents and the companies interest (sorry to my English-speaking friends: it is in French)
http://www.24heures.ch/actu/economie/pme-interet-breveter-inventions-2009-02-08
One of the more common problems with SMEs is they often do not patent or protect enough of what they do. This is often because of the cost, but can also be driven by the fact that the only person who really understands it is the inventor and you need them to be off doing “real work”. One option for you is to form a small team to evaluate different inventions with a someone who has done lots of patent evaluations or a good patent attorney who can really guide you to do the right thing.
Just remember that Patents and Trademarks are the dream of IP attorneys. They generate lots of work. Can be quite fun – researching aspects of a patent and figuring out how to write the disclosure for instance. Not to mention the fees that they generate.
Please note: I am not an attorney and do not practice law in any jurisdiction. The above are my own thoughts from working with some of the best IP attorneys in the US and abroad and in no way represent legal counsel. If you have questions, please contact a qualified legal counsel.
