Patents protect inventions, copyrights protect creative expression, and trademarks protect the creative symbols that tell consumers where a product comes from. Once you’ve scratched that surface, protecting and exploiting intellectual property can be a tricky business. Below are 11 top-level facts.
Patents Protect Inventions That Are New, Useful, And Non-Obvious
Novelty, non-obviousness, and utility are the gatekeepers under the Patent Act. To qualify for a patent, an invention has to be new, not obvious, and it has to work.
Patent-Eligible Subject Matter
You can patent any process, machine, manufacture, or composition of matter. You cannot, though, patent laws of nature, physical phenomena, and abstract ideas because allowing exclusive rights over these basic tools of scientific and technological work would impede innovation, which is the opposite of what the patent system is designed to do.
There’s no single definition of an “abstract idea,” though mathematical concepts, mental processes, and certain methods of organizing human activity tend to fall into that category. This makes software, mobile apps, machine learning, and artificial intelligence applications more difficult to patent.
An otherwise abstract idea may be patentable if it is integrated into a practical application. See this article for more on patent eligibility and abstract ideas.
Trademarks Protect Distinctive Indicators Of Origin (aka brands)
A trademark can be anything that tells consumers where your product (or service) originates. Business names, brand names, and logos are common examples, though trademarks can also include product packaging, slogans, and in rare cases, a color, scent, or sound.
A trademark has to be distinctive so it can’t be confusingly similar to someone else’s mark and it cannot merely describe the goods or services. For example, the name BEST TACO NEW YORK describes what the company sells and doesn’t function as an indicator of source. This one company shouldn’t be given the exclusive right to describe its product with such common language.
You have limited common rights in your trademark just by using it commercially. Registering the trademark gives you powerful benefits such as being able to use the (R) symbol, nationwide rights, and easier enforceability.
Copyright Protects Expression
Copyright provides creators with the exclusive right to exploit their work—to sell, perform, license, and make derivative works, among others. In the U.S., any creative work of expression is protected by copyright when it is fixed (when a work is stored on some medium in which it can be perceived, reproduced, or otherwise communicated). Examples of creative works of expression include literary works, TV Shows, movies, sound recordings, musical compositions, and many more.
Just like a trademark, filing an application for a copyright registration with the U.S. Copyright Office gives the owner a presumption of ownership, access to enhanced damages for infringement, and access to federal court, among others.
Patents Expire About 20 Years After Filing
A useful rule of thumb is that a patent expires about 20 years from its filing date, though it’s more nuanced than that. If the patent is part of a family, the 20 years will run from the earliest non-provisional application in the family. The patent term may be extended by the USPTO or shortened because the applicant surrendered time—both of these should be noted on the front page of the patent. Maintenance fees are payable three times over a patent’s life so you’ll want to check those dates? A patent may also see its life shortened by an invalidity ruling in court or before the USPTO.
Trademarks Can Last Forever
A trademark will last as long as you use it commercially and meet the renewal deadlines. A declaration of continued use is due five years following registration. After ten years, and every ten years thereafter, another declaration of continued use and an application for renewal are due. A limited period of non-use is allowed.
Copyrights Last For A Very Long Time
Copyright protection lasts for the life of the author plus an additional 70 years. For a work made for hire (the party that hired the individual to create the work is considered both the author and the copyright owner of the work) the term of copyright will run for 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first. There’s no renewal or maintenance due.
International Rights
Patent, trademark, and copyright laws are domestic, though several treaties smooth out the filling process internationally. For patent and trademark rights, you’ll need to formalize your rights locally in a country to have exclusive rights there. There’s no “international patent” or “international trademark” but there is a web of treaties that provides multiple ways to secure rights internationally. Copyright laws are also national in scope, but international copyright protection generally requires less formality. The Berne Convention prohibits member countries from imposing “formalities” on copyright protection so that an author is automatically entitled to protection against the infringement of his work in a foreign jurisdiction that is a member of the Convention.
Infringement
Someone who uses your intellectual property without permission is an infringer. For a patent that means the unauthorized manufacture, use, sale, offer to sell, or importation of any claim of the patent. For trademark rights, a party who uses the same or a similar mark in commerce in a way that is likely to confuse consumers (e.g., for similar goods) is an infringer. Copyright infringement requires copying of protected elements of the copyright owner’s work. Since direct evidence of copying is not always available, courts will look for access to the copyright work plus a showing that the two works are “substantially similar.”
We Can Help Protect Your Intellectual Property in New York
Consulting with an attorney is essential if you suspect your intellectual property rights have been violated. An IP lawyer can assist you in navigating the process, clarifying your rights, and determining the best course of action to protect your interests.
Are you facing an intellectual property issue? At BOAG Law, our team of experienced attorneys can assist with these cases. Contact us online or call 212-203-6651 for a consultation.