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See The A-to-Z "Crash Course" in Home business Basics in Barbara’s book, HOMEMADE MONEY: Bringing in the Bucks.

It includes excellent information and advice on copyrights, patents and trademarks especially for home-business beginners– all checked for accuracy by copyright/patent/trademark attorney Mary Helen Sears.

Established business owners will benefit from this book's discussions of how to protect intellectual property, from how to handle copyright infringements and corporate rip-offs, to illegal use of freelance articles and original designs. There are also tips on how to protect a patent, trademark or trade secret, with first-hand stories from business owners who explain the actions they took to protect their intellectual rights.

This book also includes a special section of pre-patent tips from retired inventor Jeremy Gorman, who has counseled countless inventors individually and through seminars.

 

 

 

A Beginner's Guide to
Intellectual Property Law

by Richard E. Schell

Intellectual property controls the ownership of ideas and their expression. Four main areas of law protect intellectual property: patent, copyright, trademark, and trade secret. This article gives a broad overview of these areas of law and offers resources for the beginning businessperson. To understand how each of the branches of intellectual property law works, it helps to first ask two questions. First, whom is the law supposed to protect? Second, what is society trying to accomplish with this law?

PATENTS

Patent law is the form of intellectual property most people immediately think of because it controls mechanical inventions. Patents can also be granted to plants and processes. Patents protect the unique and novel idea of the inventor. Under this arrangement, society receives the benefits of innovation and the inventor gets an exclusive monopoly on their idea for a period of years. The phrase patent originally stood for "letter patent." The concept of a right to have a monopoly on the production of a novel way of doing something goes back hundreds of years. When the founders of the United States wrote the U.S. Constitution, they specifically provided for the protection of patent rights.

Patents are expensive, time-consuming and relatively difficult to accomplish as a do-it-yourself project. Inventors should be aware that U.S. law provides that, after disclosing the idea, the inventor must patent the idea within one year or lose the chance for patent protection for the invention. The right patent could potentially be worth millions. It all depends on the underlying value of what the patent protects.

Inevitably, the huge risks and rewards of the patenting process attract a varied cast of characters. An independent inventor has to have a dream and the determination to see it through. Along the road of development the inventor will probably require the help of others. These other people can make or take their dream. Inventors should be quick to investigate and slow to pay or disclose. A host of free or inexpensive services should be explored before paying out any money. The best place to start would be the United States Government at the Web site of the U.S. Patent and Trademark office. Their physical address is General Information Services Division, U.S. Patent and Trademark Office, Crystal Plaza 3, Room 2C02, Washington, DC 2023. Phone: (800) 786-9199 or (703) 308-4357.

Many states have small business development centers, which offer free or inexpensive advice as well. Some libraries act as depositories for the federal government, and patent and trademarks can be searched at those libraries. Last, some communities have an inventor’s council or other group that is usually made up of other inventors.

This site offers information on how inventors have been defrauded and specific steps to take to avoid it. Just like finding a plumber, the inventor should ask around before he or she parts with the cash.

COPYRIGHTS

A second type of government protection of intellectual property, copyright, closely resembles patents. Both require registration and the broad purpose of both is to encourage progress in society by offering innovators what amounts to protection of the expression of their ideas for a period of years. However, unlike patents, copyright protection requires far less time and expense. For example, a form of copyright exists the moment the product is created. However, this right only offers modest protection compared to those rights, which are available with federal registration.

However, patents and copyrights differ significantly as well. While a patent can protect an idea regardless of whether the idea is used, copyrights can only protect the expression of an idea in a tangible medium. As an example, a copyright could be registered for a book about a specific cowboy’s life, but it could hardly be used to stop anyone from ever writing a book about the old west.

Copyrights also differ from patents in that different government agencies issue them. The Unites States Patent and Trademark Office (USPTO) does not issue copyrights. Instead, the United States Copyright Office issues copyrights. Its physical address is Copyright Office, 101 Independence Avenue, S.E. Washington, D.C. 20559-6000. Phone: (202) 707-3000.

While many resources exist for help with patents and trademarks, the resources for reliable copyright help are not so numerous. The best place to start is with the Copyright Office Web site mentioned above. The following Web sites also offer good information: The Copyright Website and Ivan Hoffman, Attorney at Law, whose website features a wealth of articles about trademark and copyright laws as they relate to writers, publishers, website owners, and other creative people.

TRADEMARKS

Trademark law makes up the third major way to protect intellectual property. Trademarks protect products while service marks protect services. Trademarks differ fundamentally from copyrights and patents. Trademark law has its roots in what is known as competition law. Competition law establishes rules governing fair competition between businesses in the marketplace. If one business could just steal the good will and reputation of a competitor by passing off his or her goods as those of the competitor, that would be unfair. Thus, courts began to enforce rights in the ownership of the reputation or goodwill of the business. Therefore, trademark protection fosters competition and safeguards the consuming public from confusion in the marketplace.

While copyrights and patents are very much creatures of federal law, many states offer state trademark protection. State trademark protection usually does not cost as much as federal registration but neither does it offer as much protection. However, it might be a cost effective way to buy some amount of protection. The contact information and Web site address for the patent office can be used for the trademark office as well.

TRADE SECRETS

Trade secret law is a fourth way to protect intellectual property. Trade secret law provides the business owner with a way to keep methods or processes used in his or her business secret from competitors. Unlike patents, copyrights and trademarks, this legal animal does not play on the federal playground. Trade secret law is entirely a creature of state laws. The business owner who hopes to swear others to perpetual silence regarding his or her improved process should immediately get a lawyer in their state to discuss the options. Most business owners immediately think of a non-compete agreement as the way to protect secret processes or information. Non-compete agreements can be an effective tool, but these agreements have been hotly contested in state courts. Terms of the agreement governing length, enforceability and geographic limits are often subject to litigation.

SUMMARY

Making decisions about intellectual property assets involve much the same process as deciding about any other property used in business. How much protection the innovator might need and how much he or she might want to spend for it is ultimately a business decision. Intellectual property protection of a hot commodity can be worth millions; but all the protection in the world won’t save a dud and make it into a product worth protecting. When Coca Cola got started it was just another beverage company, but look at the revenue stream from the licensing of its trademark now.

_____
Copyright © 2004 by Richard E. Schell. All rights reserved. This article neither constitutes legal advice nor does it form an attorney-client relationship. Rich Schell is a lawyer and author of Quick Cash--A Guide to Raising Money as well as coauthor of U.S. Immigration and Citizenship Q&A. He also offers a Rights for Writers seminar with information about copyright. You can reach him by phone at 847-759-9833.

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