Ideas: Are They Copyrights, Patents, Trademarks, Trade Secrets, or Engineering Innovations?
There are significant differences in how you must consider new ideas and set forth to manage these innovations in a safe and proper manner.
This section explores the differences of idea formulation as it relates to copyrights, patents, trademarks, trade secrets, and engineering innovations. These are forms of intellectual property, and each is managed in different ways.
Copyrights
Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
To reproduce the work in copies or phonorecords
To prepare derivative works based upon the work
To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease, or lending
To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
To display the copyrighted work publicly in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work
In the case of sound recordings, to perform the work publicly by means of a digital audio transmission
In addition to this, certain authors of works of visual art have the rights of attribution and integrity, as described in section 106A of the 1976 Copyright Act. For further information, request Circular 40, “Copyright Registration for Works of the Visual Arts.”
It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of a copyright. These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of “fair use,” which is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions. For further information about the limitations of any of these rights, consult the copyright law or write to the United States Copyright Office.
The validity of a copyright, according to the United States Copyright Office, is defined as work that is created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author's life plus an additional 70 years after the author's death. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author's death. For works made for hire and for anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or one 120 years from creation, whichever is the shorter time period.
The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. There are, however, certain definite advantages to registration.
Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a copy or phonorecords for the first time. “Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. “Phonorecords” are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or LPs. Thus, for example, a song (the “work”) can be fixed in sheet music (“copies”) or in phonograph disks (“phonorecords”), or both.
If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date.
As we can see, the copyright laws are broad, yet a widely used in protecting intellectual property. However, copyright does not and should not be confused with the patent process. The patent and trademark processes are distinctly different from the copyright process and should be utilized carefully, depending on the nature of the intellectual property one is trying to protect.
Patents
A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the U.S., U.S. territories, and U.S. possessions.
The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from doing so.
The preceding is the official view of the foremost patent authority in the United States, the U.S. Patents and Trademarks Office.[5] In the later sections of this chapter, we will begin to explore a unique intellectual exercise of creating a new idea, hopefully to become worthy of patent considerations, once you finish this book. We will then explore even deeper aspects of this new patent idea in Chapter 3, “Search Strategies, Techniques, and Search Tools to Validate the Uniqueness of any Invention.”
[5] For more information, please reference http://www.uspto.gov.
Trademarks
A trademark is a word, phrase, slogan, design, or symbol that is used to identify and distinguish merchandise from competing products. Let's explore trademarks by creating a new drink by mixing water, carbonation, sweetener, and food coloring. We'll call it Coke™—a new type of a drink.
The idea to recreate this new drink is fine, but the choice of naming it Coke™ is illegal because the name is a trademark of the Coca-Cola Company and thereby protected by trademark laws. A trademark is a formalized protection practice generally found in cases where advertising and marketing investments surround the particular brand name of a product. For reasons related to competition, a company chooses to protect its own product brand through establishing a trademark.
The differences between Coke™ and Pepsi™ is more than trademark. The difference is also with the trade secret recipes that are used to make each product. A trade secret cannot be patented because claims and teaching requirements of the patent process would divulge the trade secret.
Suppose you wanted to build a specialized biometric or life sciences computers or offer advanced forms of biometric healthcare services. You want to call your company Interpretive Biometric Machines. This name is fine; however, using the acronym IBM isn't a good thing because the acronym violates IBM's trademark.
According to the United States Patents and Trademark Office, a trademark is a word, name, symbol, or device, which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and servicemarks.
Trademark rights may be used to prevent others from using a confusingly similar mark but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks, which are used in interstate or foreign commerce, may be registered with the Patent and Trademark Office.
A trademark is a formalized protection practice generally found in cases where advertising and marketing investments surround the particular brand name of a product. For reasons related to competition, a company chooses to protect its own product brand through establishing a trademark. For more detailed information on this topic, please refer to the following resources:
United States Trademark Law— An overview, from the Legal Information Institute, Cornell Law School, http://www.law.cornell.edu/topics/trademark.html.
United States House of Representatives Internet Law Library— Trademarks—A collection of trademark links created for the U.S. House of Representatives Internet Law Library and now archived by the LawGuru.com site. All About Trademarks appears in this collection, http://www.lawguru.com.
USPTO Trademark FAQ— Frequently asked questions about trademarks and U.S. trademark applications, from the United States Patent and Trademark Office, http://www.uspto.gov/web/offices/tac/tmfaq.htm.
Trademark Basics— Fundamental information concerning marks, including a trademark FAQ, and links to current articles, published by INTA®—the International Trademark Association, http://www.inta.org/basics/index.shtml.
Nolo's Legal Encyclopedia— Trademarks and Copyrights—Basic trademark information (and more) from the Editors at Nolo Press, http://www.nolo.com/category/tc_home.html.
Trademarks and Business Goodwill— An excellent discussion of what trademarks are; what trademarks are not; why marks are important, and how to choose a “good” mark, by Thomas G. Field, Jr., a Professor at the Franklin Pierce Law Center, http://www.fplc.edu/tfield/Trademk.htm.
The Intellectual Property Information Mall— Trademark information shopping at the Franklin Pierce Law Center, http://www.ipmall.fplc.edu.
Yahoo's Trademark List— General trademark links http://www.yahoo.com/Law/Intellectual_Property/Trademarks.
CataLaw's Trademark Law Links— A collection of links related to trademark, media, and advertising law from CataLaw, a meta-index of law “catalogs” on the Web, http://www.catalaw.com/topics/IP.shtml.
One final point that should be clear is that a trademark extends globally and is protected by international laws.
Trade Secrets
In most states in the U.S., a trade secret may consist of any formula, pattern, physical device, idea, process, or compilation of information that both
Provides the owner of the information with a competitive advantage in the marketplace
Is treated in a way that can reasonably be expected to prevent the public or competitors from learning about it, absent improper acquisition or theft
Some examples of potential trade secrets are a formula for a sports drink, survey methods used by professional pollsters, recipes, a new invention for which a patent application has not yet been filed, marketing strategies, manufacturing techniques, and computer algorithms. Unlike other forms of intellectual property, such as patents, copyrights, and trademarks, trade secrecy is basically a do-it-yourself form of protection. You do not register with the government to secure your trade secret; you simply keep the information confidential (a secret). Trade secret protection lasts for as long as the secret is kept confidential. Once a trade secret is made available to the public, trade secret protection (obviously) ends.
Trade secrets often protect valuable technical information that cannot be sheltered under other forms of intellectual property law, such as the formula for Coke.
Engineering Innovations
An engineering innovation is the art of creating something that is very innovative, but fortunately or unfortunately, this “something” was created utilizing tools, products, and/or practices in ways this “something” is intended to be utilized for implementations. That is, one utilizes concepts and products in the way that they were intended to be applied and can often come up with very innovative ideas. This may or may not qualify as a patent, based on the novelty and non-obvious tests we have previously discussed.