Introduction to Intellectual Property

Copyright Law

Intellectual Property Issues

Implications for Educators

Resources for Educators

Introduction to Intellectual Property

Patents

If an idea is to be patented, the patent holder has exclusive rights to the patent’s usage for 20 years from the date of the patent filing. During the waiting time from the date of filing until actual approval, the idea-holder does not have his/her idea protected. Only after the patent is approved may he/she seek and enforce violations. So enforcement of the patent is only available after it is approved, which may turn out to be less than 20 years. Recently, the patent office has acknowledged extenuating circumstances where patent office delay causes considerable delay. In this situation, a patent owner may apply for an extension, although this is hard to obtain. (US Patent Trademark Office)

When applying for a patent, it is important to note that there is an unpredictable but usually long waiting period before a patent is considered and then rejected or accepted. At this point, the waiting period is approximately two years, but it may soon turn into five, due to a backlog involving budget cuts and an inefficient system in need of reform. Additionally, depending on the type of patent being sought, wait time may be longer. Jon W. Dudas, head of the agency states that intellectual property is the “single largest sector of the economy” (Schoen, John 2004) Therefore, this backlog problem would have strongly negative implications for the development and advancement of new ideas in the U.S. The long wait time coupled with the extensive hours of development and investment may act as stronger deterrents to new patent developments in the near future.?

Trade Secrets

If an idea is to be protected by a trade secret, it provides some competitive advantage to your company that is not generally known by the industry and you must take reasonable protection to keep it a secret. For example, according to Coca Cola’s web site, they have maintained their formula as a trade secret since 1886. This provides a competitive advantage because the formula makes the drink unique in comparison to other colas. Since 1886, no others have been able to replicate it, which also shows Coca Cola’s intensive efforts to ensure that the secret is not leaked. They may have employees sign agreements and/or take extreme measures to ensure that the knowledge is given only to a select few.

Patents vs. Trade Secrets: Similar Yet Very Different

While patents and trade secrets are both utilized by individuals who want to protect an idea, there are some differences, which would direct someone to use one over the other.

Type of Regulatory Laws

While copyrights, trademarks, and patents are all protected by federal law, trade secrets are protected by state law. Most states have signed on to the Uniform Trade Secrets Act which is still considered state law, since it was drafted by commissioners who desired more uniform state policies on trade secrets. (Uniform Trade Secrets Act). So each state could create its own policies but at this time, most have uniform or similar policies for trade secrets.

Protection Time

The main difference between patents and trademarks is in the timeframe each is protected under. Patents have a solid 20-year protection after application with few instances of extension. Trade secrets, on the other hand, do not provide protection for a specific period of time. Rather, protection depends on the length of time in which someone with a trade secret can hold on to that secret. If others figure it out or it is disclosed through carelessness by those protected, then the protection no longer applies. Additionally, to gain protection with a patent, an application is necessary; trade secrets are protected as soon as they are created. The responsibility for protection of a patent is on the hands of the system while protection of the trade secret lies completely with the owner.

Reasons for Protection Time Differences

Because a patent holder agrees to full disclosure all information related to the patent, he/she is rewarded with monopolistic usage for a set period of time. This 20 year protection is somewhat like a reward for the patent holder because it allows others to open knowledge about it who may therefore improve upon the idea and advance the country in further developments. Because someone with a trade secret does not divulge information, their secret could be discovered at any point, as long as it is done through fair means. This is why trade secrets are usually used for ideas that are very difficult to fully discover. (Coca Cola formula)

Copyrights

Copyrights are expressions of “original works of authorship” (US Patent and Trademark Office). Please see the “Copyright” addendum section for detailed updated information.

Trademarks

Trademarks do not have to be applied for but you may register a trademark, which provides greater protection. (U.S. Patent Trademark Office) If it is unregistered, one may use a Product NameO. (Maine & Asmus 2006) If it is registered, then it may be noted as follows: Product NameO.? (Maine & Asmus 2006) There are six levels of trademark protection, which generally vary depending on the distinctiveness of what is being trademarked.

“Fanciful Marks” are complete newly invented words, acronyms, or phrases, which receive strong protection due to their uniqueness. (Tysver 2005) One example is XEROX because it is an entirely made-up word. However, consumers have identified “XEROX” so much as a noun and a verb and use it in exchange for the word “copying”, its protection is threatened since it is no longer strongly associated with a product but rather a procedure and idea.

“Arbitrary Marks” are words or phrases associated with products that have nothing to do with the product itself.(Tysver 2005) One example is “Apple” computers since apples are fruits and have nothing to do with electronics.?

“Suggestive Marks” are usually invented or compounded words which somehow suggests the function or purpose of the product. (Tysver 2005) This category is more commonly used in trademarks because companies more often create suggestive marks for a product because it more easily solidifies the function of the product with the consumer. Therefore, due to commonality, protection is a bit lessened in this category. A common example is “Microsoft” which implies that the company provides “software” for “microcomputers”. (Tysver 2005)

“Descriptive Marks” usually receive no trademark protection because they have simplistic primary meanings that describe exactly what they do. (Tysver 2005) There is no second or third step inference with descriptive like there is with suggestive marks. This distinction is the basic factor that divides the confusing distinction between suggestive and descriptive marks. However, if most consumers primarily associate a descriptive mark with a particular product or company, they may be protected just as a suggestive mark is. (Tysver 2005) An example of a descriptive mark is “Speedy Cleaners” because it simply describes a company that cleans quickly. If customers generally immediately associate that phrase with the company, only then may they receive trademark protection.

“Surnames” generally receive no protection unless they become strongly associated with a product or company. In order for this to happen, a consumer would have to be mostly convinced that that surname was only associated with a specific product or company when they heard it and not just as something belonging to someone by that surname. (Tysver 2005) A strong example is McDonalds which eventually received protection due to its omnipresence. Any other person could not just set up a McDonald’s store or create a McDonald’s product because there would be incredible consumer confusion.

“Generic Marks” are those names which name the actual product.? This can happen two ways: either a name is already the name of the actual product, or through time, the name is adopted by the public to describe the actual product. (Tysver 2005) So in the first way, they are actually names of an actual product. That has no trademark protection because it is simply naming what the item is. An example would be trying to trademark the name “Table” to sell a line of tables.? On the other side, if a trademarked name becomes so overused that it actually becomes the name for that item, despite competitor developments, that trademark can be lost. An example that many people don’t know about is with the “elevator”. (Maine and Asmus 2006) That used to be a trademarked name whereas the generic term was at one point simply a “lift”. Now that much of the general population uses the term “elevator” for that object, that trademark is no longer valid. (Maine and Asmus 2006)

The major problem with genericized trademarks is how to determine when that point is reached. Of course, XEROX has no reason to prove that its trademark name has become genericized, but another company that wants to create copying machines would like to achieve that. The competitor would like to be able to use XEROX in order to better sell its products due to the “mind share” of the public that has a strong affiliation with that trademark that the new company may now use. (Genericized reference.com)

General Intellectual Property Various Elements Example

All of these intellectual property concepts can intertwine with each other in a single item. A common example is a book. The ideas in the book may receive patent protection or, if the book is kept secret, could contain trade secrets.?? In a book, the actual written content is copyrighted material which is protected from copying without permission. Finally the book may be protected under trademarks if the title fits under that category.

Schoen, John. (2004) U.S. Patent Office Swamped by Backlog.?http://www.msnbc.msn.com/id/4788834/

United States Patent Trademark Office http://www.uspto.gov

Coca Cola Trade Secret (2003) http://www2.coca-cola.com/ourcompany/historybottling.html

Uniform Trade Secrets Act http://nsi.org/Library/Espionage/usta.htm

Tysver, Daniel. (2005) BitLaw “Strength of Trademarks”? http://www.bitlaw.com/trademark/degrees.html

Maine & Asmus (2006) Trademark Protection Law. http://www.maineandasmus.com/practice-areas/trademarks/trademk.htm

Genericized http://www.reference.com/browse/wiki/Genericized_trademark