This Is What I Tell Clients When They Ask What Intellectual Property Is
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The American Legal system is complicated and lawyers are expensive. This article is intended to educate readers on basic legal theory so you know what to look for and what to ask a lawyer when you see them. Lawyers charge hundreds of dollars an hour- SAVE TIME & MONEY — be ready before the meter starts running.
This article is not legal advice. It is not intended to be legal advice. It is a general introduction to legal theories and issues. When in doubt, talk to a lawyer. Lawyers need love too.
It never fails you have a great idea and you want to turn it into a business or sell it and make a lot of money. But the first thing everybody tells you is you need to protect your idea. Then when you ask them what that protection is, how it works, why it works- you get told to see a lawyer or Google it. Then you start scouring the internet- or not. And you go in to see a lawyer and spend the first 30 minutes or an hour getting IP law 101- and paying for it. Let’s skip those steps.
Intellectual property in America is divided into 3 main types:
Patents, Trademarks and Copyrights.
Each of these is a property right that is “for sale” from the US government for a specific period of time- providing you can prove you have the right to it.
I say for sale because you have to pay filing fees and search fees and plenty of other fees in your quest to get the right granted to you- so while it is not really for sale- sometimes it sure feels that way. In reality the US government is really recording your claim for you so that you are on record as having gotten there first — much like how you record title to your home or car so that no one can come after you and say that property belongs to them. In exchange for the government recording your right and granting you exclusivity you give the US government fees and explicit instructions on the background of your invention, how to make it and how it can be used.
You have to disclose your idea for two reasons.
- The detail describes EXACTLY what you are claiming so that others know what is off limits and what is fair game for them to work with.
- By providing information on your idea, you are contributing to the advancement of the field. Others can see what you have done and there should be less duplication of efforts.
IP rights are “negative rights” meaning they are rights to exclude. These are property rights- like owning land- and like owning land, once you own it you can choose to use it or not, but more importantly- you can choose to keep others from using it. These rights are lists of what others cannot do with your creation. It does not give you the right to make your invention- especially if your idea is an improvement on someone else’ still protected idea- it just gives you the right to stop others from copying, making, selling, importing, etc. your invention.
You have the choice to sit on your property, to develop it, to license it or sell it. Once you own a patent, trademark or copyright- no other person is allowed to claim that that material is theirs. The US government recognizes that you have the right to it- you have published your right and now everyone else knows it is your right too. However, the US government is not in charge of monitoring your property for you. Again, like land, the government isn’t going to keep an eye on your property for you. It is up to you to monitor your property and make sure no one is trespassing- called infringing when talking about IP. If someone does decide to infringe then you have several options.
1. You can do nothing. It is up to you whether you want to enforce your right to exclude others or not. If you aren’t using it and you don’t care if others do- then you can just do nothing and allow them to keep going.
2. You can inform them they are infringing and demand they stop- for example- by sending a cease and desist letter.
3. You can try to work out a deal that allows them to use your property with your permission in exchange for some benefit- aka a license.
4. You can sell them your right. This gives them the right to exclude and you are out of the equation.
Patents
Possibly the most famous, and definitely the most expensive and laborious of the three to obtain. Patents protect inventions- things that the inventor has created. They can cover plants that the inventor has bred, designs, methods, combinations and inventions. They cannot cover abstract ideas, mathematical formulae or things that occur naturally. You cannot be walking on the side of the road- find a plant and patent it. You must have bred it.
Additionally, you cannot patent an idea or law of nature- you cannot patent magnetism. But you can patent ways to use the concept- i.e. a magnet or using a magnet to do something. Patents protect inventions by giving the inventor a set of exclusive rights over the invention for a limited time- in exchange the inventor agrees to lay out exactly what the invention is and how to make it.
Copyrights
A form of intellectual property that protects original creations- for example art, music or writing. They can be recognized by the symbol ©, the abbreviation copr or the word “copyright” seen on the work- followed by the year and name of the artist.
The original creation must be tangible- it must be capable of being touched in some form- you cannot copyright a book that you haven’t written or a song that is still only in your head- but once it is put down you are good to go. The copyright can be sold or licensed and like a patent it clearly states who created the work.
Trademarks
Are the third form of government recognized intellectual property — recognizable by the symbols ™, SM, or ® following any trademarked item. You can trademark a name, symbol (think the Nike swoosh) or expression that is recognizable to your product/company and distinguishes it from other companies or products. In that way you can keep others from claiming that their product is yours or from using the same name/symbol/logo. For example, there is an apple but then there is also Apple ® or even SweeTango ™ a specific breed of apple.
In fact for a company to use another’s company name/logo/symbol the trademark most be licensed from the first company. So for Lego ® to start making Star Wars ™ Lego ®- they had to license the Star Wars ™ name just to call it that- not to mention all the other licenses they would have needed to obtain for the characters and designs.
Up next: Do you really need to protect your IP?
Kimberly Sahu is an Entrepreneur Attorney and foodie in St. Louis, Missouri. She helps small businesses and startups get legal and prepare for success.