Speaking of the United States and in summary, there are three kinds
of property. They are real property (or real estate), personal
property, and intellectual property. Real property concerns rights to
land and improvements made thereupon, such as buildings and
landscaping. Basically, personal property is rights to physical objects
and tangible things that are not real property. Finally, intellectual
property concerns the products of the intellect, that is rights to
things that are the creation of a person's mind.
Intellectual
property ordinarily concerns three kinds of property. These are
copyrights, trademarks and patents. Some people also consider something
called trade secrets to fall within the class of intellectual property,
also described below.
Copyrights, generally speaking, are rights
given by the government to prohibit others from copying creative works,
whether those works are in a written, visual, sculptured or other form.
The key with copyrights is that these attach to works that have some
aspect of "creativity". For example, the output of a security camera
typically has no creativity associated with it, while a motion picture
will have a large creative input. Copyrights sometimes do not prohibit
copying absolutely, but sometimes may permit copying if a set royalty
is paid. Copyrights are sometimes limited in that the works they
protect can be used in a critical or satirical way without the
permission of the owner.
Trademarks are ordinarily marks that
identify the source or producer of a product. Servicemarks are similar,
identifying the provider of a service. There is also something called
"trade dress", which uses the non-functional look of a product or its
packaging as a trademark, for example by using a particular set of
colors. Most of the time people lump these concepts together under the
term "trademark" for simplicity, sometimes with rights to a domain name
on the Internet. The strongest rights to a trademark arise from the
exclusive use of the trademark in the marketplace, although limited but
important rights can be acquired through the registration of a
trademark. Those rights prohibit a non-owner (such as a competitor)
from using a trademark in a non-referential way without the permission
of the owner.
Patents are right given by the government to
prevent others from making, selling or importing a particular product
or practicing a particular method. Patents come in three kinds: utility
patents, design patents and plant patents. Utility patents are directed
to functional aspects of a product or method, design patents protect an
ornamental design of a product and plant patents are for protecting
asexually reproduced plant varieties. Most of the time when people
refer to patents, they are speaking of utility patents. To obtain a
patent, an inventor must disclose how to make and use his invention to
the public. The invention must be new and be non-obvious (or have an
"inventive step"). In return, he receives a patent grant from the
government for a limited period of time, which can be as much as about
20 years in the U.S.
Trade secrets are not truly property per
se: these are contractual rights that prohibit a person (usually an
employee) from revealing a valuable secret. These often concern the
specific details of how a process works best, or what the ingredients
are of a particular product (e.g. the "special sauce"), where the owner
does not wish the secret to be revealed to the public.
As real
property can be transferred and personal property can be sold, rights
to intellectual property can usually be assigned (with certain
restrictions upon trademarks). Intellectual property can also be
licensed to others to use, which is conceptually like leasing a piece
of real property to a tenant.
As far as competitive value is
concerned, patents are usually considered to be the most powerful of
these types. Copyrights, trademarks and trade secrets will not prevent
another from competing with the owner of such intellectual property, if
that other person or entity chooses to put in enough effort. Similar
works to copyrighted works can be created, so long as these are
developed independently and without a creative step. A competitor can
originate his own distinct trademarks. A competitor can root out the
content of a trade secret by independent investigative methods, so long
as the obligations of those holding that trade secret are not
infringed. Copyrights, trademarks and trade secrets can last for
decades, and that is perhaps their principal advantage.
The
advantage of patents is that they come with the power to prevent all
persons and entities from selling, making and importing a patented
product or practicing a patented method, regardless of whether those
persons have used their own independent creativity or not. Having a
patent issued to you is like the government posing "no trespassing"
signs around the work of your inventive efforts, again in exchange for
disclosing that invention to the public.
Trademarks and
copyrights can be registered with the government, which is sometimes
required if these are to be enforced through a court. Through a
registration process, a new trademark can be examined to evaluate how
distinct it is from others. Periodic maintenance fees for a trademark
need to be paid every five years. Having a copyright registered is like
having it put on a list; there is no real examination of an applicant's
claim. Because these registration activities are relatively simple,
they are reasonably inexpensive. In comparison, a patent application
requires a write-up and the drafting of claims, and in-depth
interaction with a patent examiner who checks the application against a
database of prior art. In comparison to trademark and copyright
registrations, patents can be relatively expensive to obtain. It is not
uncommon for the applicant of a patent to spend $20,000 or more during
examination. It is usually wise for an applicant to perform his own
search before filing, and this can be minimally about $1,000 on up
depending upon how thoroughly the prior art is searched. If a patent
issues, maintenance fees will be due 3.5, 7.5 and 11.5 years afterward,
and these fees range from between about $2,000 to $10,000 for a large
entity. (Small entities can have many of their fees reduced by half.)
And that is a quick-and-dirty look at intellectual property.
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.
