What is Intellectual Property?

December 30, 2015

Even other lawyers have a difficult time understanding what exactly intellectual property law covers. There are three main categories that fall under the umbrella of intellectual property: patents, copyrights, and trademarks. Trade secrets are also encompassed within the area of intellectual property.

While there are specific sets of laws enacted by Congress for each of these three categories of intellectual property, patents and copyrights are a little more special because the origin of both comes from Article 1, Section 8, Clause 8 of the Constitution, which promotes “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.”

Protection for a patent is a little different than anything else. Unlike copyright and trademark, which give the filer the exclusive right to use the copyright or trademark in a certain way or geographical location, a patent gives the filer the exclusive right to exclude anyone else from using the invention. The three types of patents are design, utility, and plant patents. They term of a patent is twenty (20) years.

Copyright protects eight different categories of works, which include (but are not limited to) visualworks, literary works, architectural works, and sound recordings. Copyright begins as soon as your idea is “fixed in a tangible medium of expression.” This means that, according to common law, your work is copyrighted as soon as pen goes to paper or something is recorded. There a host of reasons that you want to file for copyright protection, instead of just resting on common law rights, however. The most important one being that you can sue for treble damages for copyright infringement once you file for copyright protection. The duration of a copyright depends on the type of work that it is, but generally its term will be for the life of the author plus an additional 70 years. If the work is anonymous or a work made for hire then the term will be for 95 years from first publication or 120 years from creation, whichever is shorter.

A trademark is an identifying mark on a good or service. A trademark protects your brand, whether that be the name of your company, the product you’re selling, the service you’re providing, or some combination of the above. Unlike with other forms of intellectual property, there is no expiration date as long as the trademark is being used in commerce.

Finally, trade secrets protect your company’s confidential business information, especially if it provides you with some kind of competitive edge. In order for something to be considered a trade secret there are a number of general standards that must be met.. There are certain advantages to keeping an innovation a trade secret rather than filing for patent or copyright protection, the biggest one being that there is no expiration date on a trade secret. However, there are also a number of downsides that must be weighed, depending on what the business information you are protecting entails. Thus, it is crucial that you have the guidance of an attorney experienced in this area to help you make that determination.

The attorneys at the Law Office of Randolph H. Wolf are experienced in intellectual property law protection. In addition to offering trademark and copyright registration services, we also provide copyright and trademark enforcement and litigation services. If you are interested in obtaining more information related to an intellectual property matter, or if you would like to speak to an attorney, please call us anytime at 732-741-4448.

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