Intellectual property is intangible property that arises out of mental labour. It encompasses inventions, designs, and artistic work. Federal and state laws give certain rights and protections to those who develop creative works to exclusively control intangible assets in the form of:

• Copyrights
• Patents
• Trademarks
• Trade Secrets

In general, Intellectual Property Rights are enforced by rights holders through civil lawsuits against the party that is infringing against the right through its conduct. The particular remedies for infringement vary depending on the types of intellectual property at issue.

Copyrights

Copyright protection is afforded to “original works of authorship.” Copyright protection includes the right to reproduce, the right to create derivative works, the right to distribute, and the right to publicly perform. Contrary to popular perception, copyright protection does not extend to mere ideas, systems, concepts, principles, or discoveries in their abstract forms.

Instead, to be eligible for copyright protection, a work must be fixed in a tangible medium of expression from which it can be communicated either directly or with the help of a device. The medium can be known now, or it can be later developed. Copyrightable works include literature, music, dramas and plays, choreography, pictorial work, graphics and sculptures, motion pictures, sound recordings, and architectural work.

Works of authorship must be fixed in a tangible medium of expression and fall within the subject matter of copyright to be protected. They must be able to be perceived or otherwise communicated directly or indirectly with a device. Ideas, concepts, procedures, principles, discoveries, and systems are not protected by copyright.

What counts as “writing” has expanded as the number of technological means of communication increases. Writing includes literary works, dramatic works, software, graphic arts, motion pictures, sound recordings, and choreographed dances. Important aspects of copyright law include:

• Registration
• Copyright ownership
• Fair use
• Infringement
• Enforcement

A copyright holder has the following exclusive rights: reproduction, distribution, performance, display, licensing, and preparation of derivative works. A copyright holder can enforce these rights through copyright infringement litigation. However, the copyright holder’s interests are balanced against the interests of society under the fair use doctrine. Courts balance multiple factors to determine whether a defendant’s actions or work should be considered fair use. However, generally, using a copyrighted work in order to criticize it, comment on it, report the news, teach, research, or produce other scholarly work is not considered infringement.

Authors of works of certain visual arts also have moral rights, specifically rights of attribution and integrity. This means visual artists of particular types of works have the right to claim authorship of their work and to prevent the use of their name on any work they did not create. Artists of works covered by the legislation also have the right to prevent the use of his or her name on a work of art if it is distorted, mutilated, or otherwise modified and could cause harm to their honor or reputation.

Unlike other authors, visual artists have a moral right to prevent intentional distortion, mutilation, or any other modification of their work and to prevent destruction of their work, if the work is of recognized stature. For example, if someone mutilates a mural that is recognized as a work of great value, the painter has the right to sue the person who mutilated the work.

Registering a copyright is voluntary. An author obtains copyright as soon as he or she creates an original work of authorship in a fixed medium. In other words, it is immediately his or property, and no other action, such as providing notice of copyright by using a copyright symbol, is required under the law. When a work is made for hire, the employer is the author and holds the rights and protections.

However, in order to enforce a right through litigation, copyright must be formally registered with the Copyright Office. In addition to registering the copyright, United States copyright holders should deposit copies with the Copyright Office for use by the Library of Congress, except with regard to certain materials.

Patents

A patent is a monopoly that provides an exclusive right to make, use, offer to sell, or sell a particular invention in the United States, or import it into the United States, for a limited period. The purpose of giving inventors patent protection is to encourage inventers to invest their time and resources in developing new and useful discoveries. Those who are able to secure a patent have the right to exclude others from making, using, or selling their patented inventions. Aspects of patent law include:

• Types of Patents
• Patent Search
• Applying for a Patent
• Licensing
• Patent Prosecution
• Patent Appeals
• Infringement
• Enforcement

There are three types of patents: utility patents, design patents, and plant patents. The most frequently sought-after type of patent is the utility patent, which protects new, useful processes, machines, manufactures, compositions, or improvements. A design patent can be granted to someone who invents a new design for a manufactured item. A plant patent can be granted to anybody who invents or discovers and asexually reproduces a new kind of plant.

How to Obtain a Patent?

Those who want to obtain a patent submit applications to the USPTO, which reviews applications to determine whether a particular invention is patentable. Under Section 101 of the U.S. Patent Act, an invention may be patentable if it is statutory, new, useful, and nonobvious. Certain items that have been deemed to be not statutory are data structures, nonfunctional descriptive material like literature or music, and electromagnetic signals. The patent application must adequately describe the invention, and the inventor must claim it in clear and definite terms.

Whether an invention is novel requires a search for prior art, which is the body of knowledge involving similar and earlier products or processes, and an analysis of whether the public knew of the invention before the invention was invented, whether it was described in a publication more than a year before the filing date, and whether it was used publicly or sold to the public more than a year before the filing date. In general, there is just a one-year period after disclosing the invention to someone without a confidentiality agreement during which “novelty” will be found. It is important to be diligent about filing a patent application.

Usefulness means not only that there is a useful purpose to the invention, but also that the invention is operable. A composition that does not operate to serve its purpose will not meet this requirement.

An invention must be not only novel, but must also be a nonobvious improvement over prior art. The invention will be compared to the prior art in order to figure out whether a person who had ordinary skill with the technology used in the invention would have found it to be obvious.

A patent office examiner must review previous patents to determine which patents are similar to the invention that is the subject of the patent application. The examiner will look at whether the features of the invention can be found in a single patent to determine novelty, and in two prior patents to determine no obviousness. In general, simply substituting one material for another in an invention or changing its size or appearance will not be sufficient to obtain a patent.

Trademarks

To obtain trademark protection, a word, phrase, logo, symbol, shape, sound, fragrance, or colour must be used in commerce by a producer to identify goods, and it must also be distinctive. Exclusive rights to a trademark are awarded to the first producer to use it in commerce. The second requirement of distinctiveness encompasses four traits:

• Arbitrary
• Fanciful
• Suggestive
• Descriptive
• Generic

Trademarks are a type of intellectual property that is used to identify and distinguish one source of goods from another and make it easier for a consumer to quickly discern who has produced a particular product or object.

Trademarks are usually words, phrases, symbols, designs, or a combination of these. A consumer can quickly look at a shoe and, rather than carefully read a product sheet to figure out who produced the shoes, see a “swoosh” symbol and understand this to mean that Nike, not one of its competitors, produced the shoe.

In some cases, trademark protection extends beyond words, symbols, or phrases to include another physical aspect of a property, such as its unique shape or colour. Such features can be trademarked as “trade dress.” They can only be protected if consumers associate the feature with a specific manufacturer and not with that product in general. A manufacturer cannot receive trade dress protection for a feature that gives its products a functional competitive advantage. For example, a feature that makes an object easier to hold is a functional advantage.

The mark used as your business’ trademark needs to be distinctive to be owned. There are four classes of mark with different requirements and varying degrees of legal protection: arbitrary or fanciful marks, suggestive marks, descriptive marks, and generic marks.

How to Get the Benefit of Trademark Protection?

If your trademark qualifies for protection, you can obtain rights to the trademark either by being the first person to use the mark in commerce or by being the first to register the mark with the relevant authority.

Using a mark in “commerce” usually means that you have sold a product to the member of the public with the mark attached to it. If you are the first to do this, you will have priority to use the mark in the geographic area where the sales take place as well as geographic areas where your business would be expected to expand or where the reputation of your mark is established. There is a variation for descriptive marks, which can only be trademarks or be registered after they acquire secondary meaning.

Registering the mark with the relevant authority with the bona fide intent of using it in commerce also allows you to acquire priority in the trademark. Registering gives these advantages: notice to the public that the person or entity that registered has ownership of the mark, a legal presumption of ownership of the mark, and the exclusive right to use the mark in connection with goods or services.

You will be able to use a registered trademark around the country, even if you are selling in a small area. However, you will not be able to use it in geographic areas where it is already being used by other individuals or businesses engaged in commerce.

The Loss of Trademark Rights

Trademark owners usually need to keep close watch over their marks in order to make sure the rights are not infringed, diluted, or lost. You can lose a trademark in a variety of ways.

You can lose a mark through abandonment. A mark will be considered abandoned if you stop using it for three consecutive years and you have no intent to resume its use.

You can also lose a mark through improper licensing or improper assignment. Trademarks can also be lost if you license a trademark without specifying adequate control or supervision, or if you assign a trademark to someone else without also selling that person or entity the corresponding assets.

Some trademarks become generic as time passes. This means that most members of the public think the word means a type of product, rather than a product from a specific manufacturer. Trademarks that become generic in this way are lost due to “genericity.” For example, “aspirin” became generic over time.

Trade Secrets

Trade Secrets are information that derives independent economic value from not being generally known through appropriate means by other people who might obtain economic value from its disclosure or use, and that the holder of the trade secret strives to keep secret with reasonable efforts. In the past, improper use or disclosure of a trade secret was a common law tort, which required six factors to be considered when deciding whether information counted as a trade secret. In addition to proving that the trade secret qualifies for protection, a trade secret holder trying to enforce a trade secret needs to prove that a defendant wrongfully acquired and misappropriated the secret information.

Trade secret is defined as information that derives independent economic value because it is not generally known or readily ascertainable, and it is the subject of efforts to maintain secrecy. Unlike copyrights, patents, and trademarks, trade secrets are not registered with a government agency. However, in some cases, they can represent a company’s most valuable intellectual property assets.

Common issues involving trade secrets are:
• Nondisclosure Agreements
• Noncompete Agreements
• Infringement
• Enforcement

Trade secrets are easily misappropriated. Often, they consist of information that can be memorized or noted down by employees, customers, developers, suppliers, and others. The more people know a trade secret in an economy where employee turnover is high, the harder it is to keep the information secret. If a competitor, journalist, or blogger gets hold of the trade secret, the information may be put to use immediately. Once a trade secret becomes public, its status as a trade secret may be lost.

Examples of Trade Secrets

Information that can be kept as a trade secret includes formulas, patterns, compilations, programs, devices, methods, techniques, or processes. Some examples of trade secrets include customer lists and manufacturing processes. The economic value of the information can be actual or potential. For example, if you have not actually started producing a particular useful device according to a blueprint, you can still protect the blueprint as a trade secret on the basis that it has the potential for economic value.

Sometimes the information that is protected as a trade secret may also be protectable as an invention under a patent. However, in order to obtain a patent, you must make a public disclosure of how an invention can be reproduced. Patent protection is a limited monopoly for a specific time, whereas trade secret protection continues until the trade secret is publicly disclosed. The same invention cannot receive patent and trade secret protection at the same time.

What Do You Need to Prove in a Trade Secret Claim?
In order to prove a trade secret claim, you will need to prove that:
• The subject matter at issue is a trade secret;
• You made reasonable efforts to prevent the trade secret from being disclosed; and
• Somebody else misappropriated the information.

There are two types of illegal appropriation of a trade secret. It may be acquired improperly, or it may involve a breach of confidence. A competitor can lawfully use independent discovery, acquire a trade secret through an accidental disclosure based on the trade secret owner’s failure to reasonably guard the secret, or use reverse engineering.

Some companies wonder what the court considers “reasonable” efforts to guard trade secrets. In general, disclosure of trade secrets should be limited to a need-to-know basis. Anyone to whom the trade secret must be disclosed should have to sign a nondisclosure agreement, and when possible, a noncompete agreement. These agreements can include clauses that restrain employees from working on confidential information from their home computers. Any documents or items that contain trade secrets should be conspicuously marked “confidential.” The policy regarding trade secrets should be clearly articulated in the company handbook, and measures should be taken to restrict access to the trade secrets, such as by issuing employee badges or installing locks and passwords.

Since no government entity monitors trade secrets, enforcement of trade secrets is largely a matter of policing by private companies that can afford to do so. However, in the case of intentional theft of trade secrets, some laws provide criminal penalties and misappropriation of trade secrets is also a form of unfair competition.