Protecting Your Intellectual Property

How and why to protect your intellectual property.

More than ever before, intellectual property can be critical to the success of a business. What exactly is your intellectual property, and how should you protect it?

In concept, intellectual property is a special type of property, usually based on information, that someone has created and that potentially provides the creator some economic benefit.

The three most common forms of intellectual property include patents (which protect inventions), copyrights (which protect original works of authorship), and trademarks (which protect unique signifiers of a brand in the marketplace).

Your ability to protect your intellectual property depends on which category yours falls into.

Patent Protection

Inventions are crucial to the success of many businesses. If your business has developed a new and better product or process that is unique, useful, and non-obvious you will want to protect the competitive advantage this gives you by obtaining a patent. The holder of a patent can stop third parties from making, using or selling the invention for a period of years, depending on the type of invention (it's typically for 20 years).

You can obtain a patent by filing an application with the U.S. Patent and Trademark Office (USPTO), the federal agency charged with the management of patents. The USPTO publishes a helpful guide to understanding the patent registration process on its website.

While it is possible to apply for a patent yourself, doing so can be complicated and time-consuming, because of the technical nature of the application process with the USPTO. As a result, you might wish to hire an attorney with experience in patent law to help you.

If your business is one in which inventions are created on a continuing basis, it's important that you have a clear understanding regarding who owns the inventions. Does your business own them or do the employees who created them? This can depend on the type of work arrangement (such as an employment agreement) you have in place. You will want to make sure workers sign an agreement that any inventions created by them while working for your business belong to the business.

Copyright Protection

A copyright provides protection for original works of authorship, fixed in a tangible medium of expression, for example literary, musical, and dramatic works, as well as photographs, audio and visual recordings, software, and other intellectual works.

To qualify for copyright protection, the work must include some minimal degree of originality. A list of numbers or data generally would not qualify, for example, but computer code probably would.

Copyright protection begins as soon as the work is fixed in a tangible medium. In plain English, this usually means that it is “written down” in some form.

To ensure full protection, including the ability to sue third parties for copyright infringement in federal court, the creator should register the work with the U.S. Copyright Office. In most cases, the process for registration is relatively quick and easy, and can be completed online.

From there, the creator should begin using the copyright symbol immediately as a method of informing others that he or she intends to exercise control over the production, distribution, display, and or performance of the work.

Trademark Protection

A trademark protects the name of a product or business, as well as any associated logos or signifiers, by preventing other business from using the same name or symbols. Examples include the four-colored flag icon for Microsoft, as well as the name “Microsoft” itself.

Trademark law can also protect the packaging of products, such as the famous light blue box of Tiffany’s jewelry.

Unsurprisingly, having a unique and identifiable name or logo for your product or business is an advantage. Trademark law seeks to protect consumers from confusion or deception, by preventing other businesses from using the same or confusingly similar names or images. Similar to a trademark, a servicemark is used when a business sells a service rather than a particular product (as with an accounting firm, investment firm, dental practice, and so on).

Being the first to use a name is important to protect the continuing right to do so, but filing one's trademark is important for enforcement purposes. The first step in filing for trademark registration is performing a trademark search. This step is extremely important because it could prevent you from investing a lot in the promotion of a product under a trademark that is already in use. An attorney who practices in the area of intellectual property can help you with a trademark search and application.

To obtain federal protection, trademarks must be registered with the USPTO (but unlike with patents, you will file with the division focused on trademarks). Again, the USPTO publishes a helpful online guide to that process.

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