Is it a bird or a plane? Understanding Intellectual Property

"I have a gazillion dollar idea.  How do I protect it?" This seems to be the typical start of a conversation that I have with a potential client.  Without getting into whether or not this idea will put you on the top of the Forbes richest list, the greater concern is how to protect this idea.  To answer the question of protection, you need to first understand whether or not the idea is protected by copyright, trademark, patent, or trade secret law.  Here is a very brief overview of the 4 different areas of intellectual property (IP) law.

Copyright - You may recognize copyright from the (c) or from the notice at the beginning of a movie.  Copyright protects works of art such as movies, music, photographs, books, and paintings.  It may also protect things like your sales slideshow presentation.  It typically will not protect technical drawings or contracts.  The length of time that a copyright is protectable is 120 years (for corporations) and life of the author plus 70 years (for individuals).  My son has been able to use the IPhone camera since he was 2.  So if he took a picture at 2 and lived 100 years, the picture would get 168 years of protection.  It is not required to register your works with the U.S. government to receive copyright protection.  However, it is extremely wise to do so since copyright registration allows the owner to collect statutory damages of up to $150,000 instead of lost profits where it may be difficult to prove losses.

Trademarks - Trademarks are typically recognizable as the brand associated with a particular product or service.  An apple with a bite taken from it on electronics is recognizable as the Apple brand.  The curvy bottle filled with cola is recognizable as Coca-Cola.  The color orange associated with hardware stores is recognizable as Home Depot.  However, there are a number of famous marks that got so famous that they lost their uniqueness and became generic such as Aspirin and Escalator.  Trademarks can have common law protection through use; however, this common law protection may limit the trademark owner into a specific geographic territory or within a product or service line.  It is always advisable to seek federal registration of a trademark since it provides exclusivity across the United States and may be used as the basis for international trademark application. In order to maintain federal trademark registration, the owner of the trademark must file and pay renewal fees and continue to use and police the trademark.  (Tip:  When filing a trademark application, file the word mark separate from the logo.  This will protect the word portion of your mark from being replicated.  Protecting only the logo may allow others to file trademarks which use a different logo, but still use your words.)

Patents - Patents are unique to other forms of intellectual property in that there is no common law protection.  The only way to get patent protection, is to apply for protection through the US Patent and Trademark Office.  There is also a timeliness issue in applying.  The patent system in the U.S. was previously a first to invent rather than a first to file.  However, in September 2011 the US switched to a first to file system.  Essentially, an inventor desiring to obtain patent protection will be encouraged to file a soon as possible or fear not being able to receive patent protection.  There are some exceptions for publications by the inventor, but the patent must be filed application must be filed prior to the first sale, unlike under the previous law.  There are three types of patents: Utility, Design, and Plant.  A patent must be unique, non-obvious, and novel.  The difference between a utility and design patents are that a design patent cannot protect any functional element of the invention.  Plant patents are typically used by botanists which crossbreed and graph plants.  A patent can last up to 20 years provided all maintenance fees are paid. (Tip:  Most inventors will file a provisional application when they are unsure of how much of a financial commitment they want to make towards and invention.  A provisional application must be followed-up with a full patent application (non-provisional) within a year of the provisional filing or the patent will be abandoned.)

Trade Secrets - Trade secrets are probably the most under appreciated, but most important of the intellectual property group.  Have you ever been asked to sign a non-disclosure agreement (NDA)?  The reason you were asked to sign the NDA was so that you would be obligated to protect someone's trade secrets.  To qualify as a trade secret, the thing must have value to the owner and the owner must use reasonable means of protection.  If not, the trade secret enters the public domain and can no longer be protected.  Trade secrets can be formulas, business plans, technical data, and even customer lists.