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How Intellectual Property is Protected

The term “intellectual property” refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. In the United States, there are several types of intellectual property protection, which include patents, trademarks, trade secrets, and copyrights. 

Patents

Patents allow their owner to determine who can make or sell an invention. The two (2) most commons types of patents are (1) Utility Patents; and (2) Design Patents. 

A utility patent is the most common type of patent, covering any process, machine, article of manufacture, or composition of matter, or any new and useful improvements thereof. To obtain a patent in the United States, the inventor must file a patent application with the United States Patent and Trademark Office, which includes (1) a written document compromising a description and claims; (2) drawings when necessary; (3) an oath or declaration; and (4) filing, search, and examination fees. A utility patent lasts for twenty (20) years from the date of filing. 

A design patent covers any new, original, and ornamental design for an article of manufacture.  A design patent lasts for fourteen (14) years.

Trademarks

Trademarks protect brands. Trademarks allow their owner to communicate the source or origin of a product or service to consumers. A trademark is a word, phrase, symbol, or design that distinguishes the source of products (trademarks) or services (service marks) of one business from its competitors. 

To apply, you must have a clear representation of the mark, as well as an identification of the class of goods or services to which the mark will apply. You can submit an online application, and filing fees vary according to several factors, including the form type and the number of classes or goods or services. Trademarks expire after ten (10) years and renewal terms are ten (10) years. 

Before receiving approval from the USPTO, companies and people can use the trademark symbol to indicate ownership of the mark. Upon approval, you can legally add the registered trademark symbol (®) to your mark. The trademark symbol doesn’t hold any legal weight, but it can indicate to other businesses or people in your industry that you intend to claim the mark. 

Trade Secrets

A “trade secret” is any valuable information that is not publicly known and of which the owner has taken “reasonable” steps to maintain secretary. A trade secret is a formula, process, device, or other business information that companies keep private to give them a business advantage over their competitors. Trade secrets protect confidential business information. Examples of trade secrets include: (1) soda formulas; (2) customer lists; (3) survey results; and (4) computer algorithms. 

Unlike other types of intellectual property, you can’t obtain protection by registering your trade secret. Instead, protection lasts only as long as you take the necessary steps to control disclosure and use of the information. Trade secrets are not registered with a governmental body. Rather, you must simply establish your information as a trade secret to treat it as a trade secret. Businesses use nondisclosure agreements, restricted access to confidential information, post-employment restrictive covenants, and other security practices to maintain trade secrets. Disclosures should be done only under a nondisclosure agreement.

When someone misappropriates your trade secret, you have to prove in a court of law that the information qualifies as your trade secret. You have to show that the information that was misappropriated was valuable because of its secrecy and you must show the steps you took to keep it a secret. Trade secret protection lasts until the information is no longer valuable, the information is not secret, or the owner no longer takes reasonable steps to maintain its secrecy. 

Copyrights

Copyrights provide their owner with the ability to determine who can reproduce or distribute a work, publicly perform and display a work, or prepare derivative works. Copyrights protect original works of authorship, such as literary works, music, dramatic works, pantomimes and choreographic works, sculptural, pictorial, and graphic works, sound recordings, artistic works, architectural works, and computer software. With copyright protection, the holder has the exclusive rights to modify, distribute, perform, create, display, and copy the work. 

In order to qualify under the copyright laws, the work must be fixed in a tangible medium of expression, such as words on a piece of paper or music notes written on a sheet. A copyright exists from the moment the work gets created, so registration is voluntary.