The law governing intellectual property is a complex web of state law, federal law, Constitutional law, statutory law, and case law. And in the age of the World Wide Web, it is increasingly important for businesses of all sizes to acquire, protect, and avoid infringing others’ intellectual property assets.
1. Intellectual Property – “Intellectual property” is an odd name for an important business asset. There are several types of “property” and several types of property law. Personal property includes tangible items such as cars and boats. Real property includes all types of real estate (i.e. land). And “intellectual property” includes patents, copyrights, trademarks, and trade secrets. A better name for “intellectual property” would be “intangible property.” The subject matter of “intellectual property” includes, for example, patented inventions, copyrighted works (such as books and musical recordings), even methods or ways of doing business, which are products of the human intellect.
2. Intellectual Property – The Founding Fathers included patent and copyright protection in the Constitution. Article 1, Section 8 of the Constitution states that “The Congress shall have Power To … promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” So you are entitled to patent and copyright protection for your inventions and creations – your good ideas.
3. Copyrights – You don’t have to register works in order to get a copyright. However, registering copyrighted works with the Copyright Office does provide additional remedies if a dispute with a copier arises at a later date. Copyright rights exist as soon as works are in a fixed form.
4. Copyrights – You don’t have to mark your copyrighted works, but you should. In 1989, U.S. copyright law was changed so that it is no longer necessary to mark works with a copyright notice (17. U.S.C. Sec. 401). So if you see an article or a piece of software that is not marked with a copyright notice, do not assume that it is in the public domain. Nevertheless, if you are creating copyrightable works, you should mark them with a copyright mark as soon as they are in a fixed form to put others on notice.
5. Patents – You should keep good records of inventions since the United States uses the “first to invent” system. Most of the rest of the world grants patent priority to the first inventor to file a patent application. Filing is important in the United States as well, but if a dispute arises, invention notebooks and the like will be used to determine which inventor invented first.
6. Patents – You must file a patent application within one year of selling, offering to sell, publicly using, or publishing your invention. There is a one-year grace period for these events, but when these events start, the clock starts ticking. And the clock starts ticking whether you or somebody else discloses the invention.
7. Patents – Your patent application will be published 18 months after it is filed, unless you do not want to file for foreign patents. In order to bring U.S. patent law more in line with the patent laws of other major industrialized nations, the United States Patent and Trademark Office now publishes patent applications unless the inventor indicates that he or she will not file for foreign patents. So if you are confident that you will receive a U.S. patent, there is no additional risk. But if you are uncertain, you should elect not to file abroad, so that if your pending U.S. application is finally denied or abandoned, you can still keep your invention a trade secret.
8. Trademarks – Intend to use it or lose it. In 1989, U.S. trademark law was changed so that it is possible to file an “intent-to-use” application for bona fide marks not yet in use. So if you know that you are going to be using a particular mark and want federal protection for that mark, you should file an “intent-to-use” application.
9. Trade Secrets – Trade secrets must be kept secret. It sounds obvious, but the essence of trade secret law is that the intellectual property that a company is trying to keep secret must, in fact, be kept secret in order for the company to benefit from the protection of trade secret law. So, for example, if you are worried about a senior executive leaving for a competitor, you should make sure that you have good procedures (including employment agreements and exit interviews) for making sure your secrets stay secret.
10. For every rule there is an exception. A complete coverage of these topics could fill a book (and has in fact filled many). Fortunately, there are many places on and off the Internet where you can find more information, including the following:
- Copyrights – Copyright Basics (http://www.loc.gov/copyright/circs/circ1.html). From the United States Copyright Office.
- Trademarks – Basic Facts about Trademarks (http://www.uspto.gov/web/offices/tac/doc/basic/index.html). From the pamphlet published by the United States Patent and Trademark Office.
- Patents – General Information Concerning Patents (http://www.uspto.gov/web/offices/pac/doc/general/index.html). From the booklet published by the United Stated Patent and Trademark Office.
- Trade Secrets – Nolo.com’s Trade Secret Basics FAQ (http://www.nolo.com/encyclopedia/articles/pts/trade_secrets.html). Nolo.com is a leading publisher of self-help legal materials. They also have good books on patent law, trademark law, and copyright law.
