Every startup and entrepreneur needs to understand the basics of intellectual property at the outset of building a business. Intellectual property (“IP”) is not simply any idea or invention. It is a term of art that refers to intangible assets that have obtained legal protection. IP consists of patents, copyrights, trademarks, and trade secrets. It can be found in all industries and markets and in all segments of a business.
Understanding the different types of IP allows you to determine, at least on a basic level, what kind of protection you may be able to obtain for your intangible assets. You could possibly patent the method of making your product. You might be able to trademark your company name, logo, and slogan. You could possibly prevent others from copying your computer program. The more you know about IP, the better you can identify, protect, and manage your IP.
Lots of startups and entrepreneurs are quick to rush into patenting their inventions without fully understanding the complexity and expense of patents. There are three types of patents: utility patents, design patents, and plant patents. Utility patents are the most popular (and also the most expensive), and they cover inventions that involve a new and useful process, machine, manufacture, or composition of matter. Design patents cover inventions that involve new, original, and aesthetic designs for a manufactured product. Plant patents cover inventions or discoveries of distinct and new plant varieties that are asexually produced. Note that patents do not cover laws of nature, naturally occurring things, and abstract ideas. The law on abstract ideas, especially involving software, is a continuously evolving issue in IP law.
In relation to the other types of IP, a patent is considered one of the strongest because it grants you the exclusive right to make, use, sell, offer for sale, and import an invention into the United States for 20 years. In other words, it grants you a “limited monopoly” on your invention. Because of the significant advantages that come with a patent, the U.S. Patent and Trademark Office (PTO) typically takes over two years to examine a patent application.
Unlike patents, which cover functional inventions, copyrights only cover expressive works. Copyrights protect original works in the form of literature, music and lyrics, dramas, pantomimes and choreography, pictures, graphics, sculptures, movies, audiovisual works, sound recordings, and architecture. No application is required because a copyright is created when someone creates an original work and fixes it in some tangible form. Although registration with the U.S. Copyright Office is not required, it is highly encouraged in the event you want to bring an infringer to court.
Whereas a patent generally lasts 20 years, a copyright lasts as long as the author’s life plus 70 years after the author’s death. A copyright term is longer than a patent’s, but it also offers a different set of rights. A copyright generally provides you the exclusive right to make copies of your own work, to prepare derivative works, to control the sale and distribution of your work, and to control the public performance and display of your work.
IP covers more than inventions or expressive works. In the form of trademarks, IP also covers a business’s branding or marketing efforts. A trademark is a mark used to indicate the source of goods, and its purpose is to prevent the likelihood of consumer confusion. A trademark can take the form of words, names, symbols, or devices that a business uses or intends to use to distinguish its goods from others.
With trademark law, you can prevent others from using confusingly similar marks that likely will mislead a consumer. By enforcing your trademarks, you can prevent consumers from mistakenly buying another company’s (poor quality) product and also protect your company’s reputation. With effective planning, you can utilize trademarks to build and protect your business and customer base. Similar to copyrights, registration is not required but highly encouraged for stronger legal protection. Registration lasts for ten years and is renewable.
A trade secret is the only type of IP that must not be disclosed. A trade secret is all about competitive advantage. It is information that is not generally known to all, that has commercial value, and that is maintained in secret through reasonable efforts. A trade secret covers formulas, patterns, compilations, programs, devices, methods, techniques, processes, and the like.
Trade secret law only protects against misappropriation, so if someone discovers your trade secret through reverse engineering or upon accidental disclosure, no protection will be granted. Absent disclosure, a trade secret can theoretically last forever as long as it is kept secret, has commercial value, and is reasonably protected.
Familiarize Yourself With Intellectual Property
It is important to seek IP protection at the outset of building your business, but you must do so with a strategy. Patents, copyrights, trademarks, and trade secrets are governed by different laws and have different lengths of and costs for protection. Make sure to familiarize yourself with the differences before deciding on what type of IP protection you want to pursue.