Back To Basics: Overview of Intellectual Property

In recent weeks I’ve had three people ask me if I can help them with a patent. I thought it would be useful to explain a little about what the Constitution and the law say about all of intellectual property. This shouldn’t take long. - This is the long version of my previous post - "Brad, there is a dead copyright, can I use it?"

Generally there are 4 types of intellectual property: patents, copyright, trademark, and trade-secrets. Each cover a different thing, happen in a different way, and last for a different period of time.
Patents: Cover inventions. The definition of invention is too much to explain here. You don’t have protection until the US patent office gives you a patent. There was a recent change in the laws, the result is that the first to file has rights to the invention.


Copyright: Covers art stuff. Pictures, sculptures, written works (including programming code), occurs when the thing is created. If it was created after 1978 it lasts for 75 years after the creators death (thank you Disney family lobbyists).


Trademark: Covers things like your company or product/service name. There are other things, like the color that Tiffany uses on all its boxes.

In the U.S., trademark rights arise from use, not registration.  This means, that you can own non-registered “common law rights” without ever obtaining a registration.  BUT, if you rely on federal application/registration, then that grants you presumptive nationwide rights (not just in the location where you use the mark).

For metaphorical types: I say trademark follows the orphans and widows test. Say I send my metaphorical grandma to the store to pick up an XYZ. She is at the shelf and sees XYZ and ABC and can't tell which one is which. One of these is violating trademark.


Trade Secrets: Are simply too complicated for this article. If you wonder about these it’ll take an attorney and hour to explain. Some of you know I was involved in a major lawsuit in a company I have an equity stake in. Cost a ton in fees, but was ultimately - economically - worth it.


A little more discussion:

For those interested, there is a benefit to society if people can protect their hard work, and make money off it, without having to keep it secret. So we created a law that helps someone sell their work, without fear of losing to copycats. This was created way back in 1776 with our Constitution. Those founding father’s sure knew what was up!

In the fast paced world of entrepreneurship and the internet, spending time on these devices has somewhat gone out of fashion.

Patents take too long to get, usually the market/product that you are trying to protect has moved past your patent by the time it is filed and approved. They also cost a lot of money. Another reason they are going out of fashion in the entrepreneurial world is because the new ‘open source’ movement has moved from programming to physical items. This is partly lead by some friends of mine, Nathan and Alicia Seidle, who are known for starting Sparkfun Electronics.

Copyright can help with artwork and protect’s programming code. The problem is that using an alternative method to get to the same result is generally allowed. Say Rich Staats uses PHP to code an awesome website, and Doug Clayton uses dot-net to do essentially the same thing. As long as the code is different they can both do it.

Trademark still works pretty well, and comes into place for free, though, registration is cheap, easy, and helpful. If you are a huge company this is a big deal.

Anything further would extend past the quick overview look I'm trying to give in 'Back to Basics'.

But hey, what do I know?