Intellectual property can be crucial depending on the product or service your company provides. You may understand its importance but are overwhelmed. What is intellectual property exactly? What counts and what doesn’t? Intellectual property can be categorized in several different ways. In this two part series, patents, trademarks, copyright and trademarks will be covered. The official U.S. Patent and Trademark website is a great resource of information as well.
The U.S government and many other agencies around the world are continuously at work to improve protections for intellectual property rights and the enforcement of intellectual property laws. Intellectual property are the legal rights (control and ownership) of creations, such as ideas, inventions, designs, etc. for use in commerce. Intellectual law seeks to deter individuals or organizations from copying or capitalizing upon another’s work. In today’s age of digital madness and passing legislation, actually enforcing those laws has become a very daunting task. However, the protection of intellectual property has both individual and social benefits. It protects the right of the creator of something of value to be compensated for what he or she has created and, because that right is protected, people are encouraged to produce innovative, intangible, creative work. The main areas protected by intellectual property law include: patent, copyright, trademark, and trade secret.
The true key to understanding intellectual property protection is to understand that the concept that is protected is the intangible creative work, not the particular physical form in which it is embodied. These assets can provide a business with a competitive advantage in the marketplace, and the loss of such assets can be just as costly to a business as the loss of physical property or equipment. Unfortunately, not all companies are “property-savvy” and fail to accurately assess the value of their intellectual property.
PATENTS
A patent is a grant from the federal government conferring the rights to exclude others from making, selling, or using an invention for the term of the patent. Patents can be confusing for entrepreneurs because they do not grant the patent holder the right to manufacture and sell an invention, rather patents only give patent holders the ability to exclude others from manufacturing and selling the invention. A patent holder can only legally manufacture an invention if no other patents held by separate parties are infringed by doing so. This can become pretty unclear because most patents are just improvements upon patents that already exist. In order for those improvement patents to be put into action, the former patent holder must grant them permission.
Patents were the first form of intellectual property expressed in the U.S. The first patent rights were mentioned in the original articles of the constitution and the first patent was granted in 1790. Today, there are three types of patents: utility patents, design patents, and plant patents. The three basic requirements for these patents to be granted include the subject of the patent being useful, novel in relation to prior arts in the field and not obvious to a person of ordinary skill in the field.
Utility Patents
The most popular patents used are utility patents. Utility patents are very valuable assets because they give inventors exclusive commercial rights to produce and utilize the latest technology. In turn, utility patents are difficult to obtain. For one, they are hard to write, the process may be time consuming and expensive to undertake, and their complexity may make them difficult to understand. Utility patents are issued by the U.S. Patent and Trademark Office (USPTO) and last for up to 20 years. However, the patent holder may have to pay maintenance fees over that period.
Design Patent
The second most popular patent is a design patent. A design patent should not be confused with a utility patent, which safeguards an item’s unique way of operating or functionality. A design patent protects how an object looks. A single product may have both a design patent and a utility patent at the same time. A design patent is a form of legal protection of the unique visual qualities of a manufactured item. A design patent may be granted if the product has a distinct configuration, distinct surface ornamentation or both. In other words, a design patent provides protection for the ornamental design of something that has a practical utility. These patents usually last about 14 years in duration. An example of a patent that is both utility and design would be a common hunter’s duck call apparatus.
Plant Patent
Plant patents are the least popular patent form. Plant patents protect new varieties of plants that can be reproduced asexually. These patents are important for companies specializing in plant genetics and related areas. These patents usually last for 20 years.
TRADEMARKS
A trademark is any word, name, symbol or device used to identify the source or origin of products or services and to distinguish those products or services from others. Trademarks allow consumers to know what to expect when they see a particular logo or design above a place of business. There are four types of trademark which include trademarks, service marks, collective marks and certifications marks.
Trademark
As previously stated, trademarks are any word, name, symbol or device used to identify and distinguish one company’s goods from another’s. Trademarks are renewable every 10 years, as long as the mark remains in use. An example of this could be Starbucks Frappucino™ beverage name.
Servicemark
A service mark is a trademark that is used in connection with services. Businesses use service marks to identify their services and distinguish them from other services provided in the same field. Service marks consist of letters, words, symbols and other devices that help inform consumers about the origin or source of a particular service. Service marks are renewable every 10 years. An example of this could be H-E-B Curbside™.
Collective Mark
A collective mark is a trademark or service mark that identifies members of a union, cooperative or other collective organization. The mark may be a word, symbol or group of words. Collective entities can register and get protection for collective marks under the Lanham Act. Collectives may be associations, cooperatives, organizations and unions, or public institutions. Only members of the organization that registered a collective mark can use it. Collective marks are renewable every 10 years.
Certification Mark
The owner of the certification mark establishes standards for certification to identify that goods or products bearing the mark are of a particular type. The owner of the mark is not permitted to use the mark. Instead, the mark is used by third parties to indicate that the goods or services being offered conform to the standards established by the mark’s owner. The owner of a certification mark is compelled to license use of the mark to anyone whose goods or services meet the standards established for certification. Certification marks are renewable every 10 years. An example could be the Certified Gluten-Free mark.
Ryan Miller, Baylor University student