The first thing you'll need to do is to evaluate what kind of
intellectual creation you have that needs to be protected. If you have
something that is expressive and non-functional, such as written work
or a collection of videos, then securing copyrights is in order. If you
have an identifying name, mark, brand or color scheme, then treating
and registering that as a trademark can be in order. If you have
something that has been kept confidential and has value, then you might
consider what you need to do to keep it as a trade secret. Finally, you
might have something that has some new functionality (works in a new
way) which might be worthy of a patent application. Now if you have
something that doesn't fit into one of those buckets, then a discussion
with a competent attorney who specializes in intellectual property
would be a first smart move.
To obtain copyrights, you
ordinarily just put into a physical form what is in your head, that is
to create a "work of authorship" "fixed in a tangible medium" such as
paper, a hard drive, etc. When enforcing a copyright, it is sometimes
helpful to register that copyright and/or save evidence as to the
author and the date of creation. Most people who have a need to do this
are made aware from the acquiror of their work, e.g. by a publisher or
distributor, who wishes to have all of the copyrights secured before
publication or use. Thus an author will often find the need of legal
services when negotiating a contract with such an acquiror.
Rights
in a trademark are generally obtained through use of that trademark.
Some limited rights can be obtained without use through federal
registration, and registration makes some aspects of enforcement
easier. State registrations are also possible, but most of the time
federal registrations are preferred. Legal services for trademarks are
ordinarily in registration and in making searches to determine the
distinctness of other marks already in use, to avoid infringing a
previously-existing trademark.
The need for a patent ordinarily
arises where a functional design or improvement is achieved from that
which existed before. Patents are not awarded for all inventions; a
patentable invention must be new and non-obvious from the perspective
of a fictional person in the public who is trained to the standard of
what is "ordinary in the skill of the art for which it pertains". If an
invention is already out there "in the prior art", it is not
patentable. If an invention is obvious to this fictional person, then
theoretically it is not patentable (although sometimes obvious
inventions can get by a patent examiner due to the difficulties of
making a rejection for obviousness.) Although there are a few other
minor requirements, the last important requirement is that an invention
be "ready for patenting", which means that the inventors can describe
how to make and use the invention such that it can be used by the
public, i.e. it is more than a mere "idea".
Where patent rights
are desired, a patent application must be filed in a timely way. If the
public becomes aware of the invention prior to the "priority date" of a
patent application, this can jeopardize the inventor's rights to a
patent. In the U.S. and in some cases, there is a one-year "grace
period" that permits a patent application to be filed up to one year
after disclosure of the invention to the public. (Here "disclosure"
includes not only publishing the details of the invention, but also a
use of the invention by customers or competitors and even something as
small as offering a product that includes the invention for
sale.) Even so, it is not usually wise to rely on this grace
period -- a patent application should usually be filed as soon as an
invention can be described and definitely before it is disclosed to the
public or offered for sale. Where a inventor or company cannot afford
the expense of patent examination, there are ways of deferring those
costs including the filing of a "provisional" patent application. If
you think you might have a patentable invention, the first step is to
consult with a patent attorney who is registered with the U.S. Patent
and Trademark Office.
If you already have intellectual property
that you might wish to transfer or license, there are lawyers who
specialize in those sorts of activities.
Where it is believed
that the activities or products of a company might be infringing upon
another's copyright, trademark or patent, the first step is to consult
with a competent lawyer, preferably an attorney who has experience in
litigation in the area of concern.
Rights to all forms of
intellectual property can be lost if certain actions are not timely
taken. The sole advice that I give here is that if you believe you have
some form of intellectual property that might be valuable, you should
immediately consult with a lawyer who is properly trained for the
particular property you have. Such a lawyer can advise you regarding
international rights, or can refer you to someone who can give proper
advice. Don't wait!
DISCLAIMER: The information presented on
this website is not suitable to use as legal advice; it is intended
only to acquaint interested persons with concepts of an introductory
nature such that a productive conversation with a legal professional
can be held. Do not use the information here in substitution for the
assistance of a competent legally-trained professional.
