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Intellectual Property: A Primer

By Sima Singadia Kulkarni Email By Sima Singadia Kulkarni
April 2016
Intellectual Property: A Primer

No matter the nature of your business, whether you are a physician, hotel owner, retailer, or service provider, you will at some point encounter intellectual property (IP) issues. Intellectual property refers to creations of the mind, products of human intelligence, including inventions, artistic works, symbols, names, and images used in commerce. IP that is owned by you or your business should be protected by filing Patents, Trademarks, and Copyrights. Since these terms are often used incorrectly, here is a brief primer on what each is and how they are used.

In the U.S., a patent is the grant of a property right to an inventor, issued by the U.S. Patent and Trademark Office (USPTO). Inventions range from high tech innovations such as pharmaceutical/mechanical products and software, to less technical products, such as paperclips and sippy cups.

Types of Patents:
• Utility: new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
• Design: new, original, ornamental design for an article of manufacture;
• Plant: any distinct and new variety of plant invented or discovered and asexually reproduced.

The process of obtaining a utility patent is called patent prosecution. Applicants file a patent application, after which, patent prosecution begins. USPTO examiners consider many factors, for example, whether the subject matter is eligible (for example, laws of nature and abstract ideas do not qualify for patent protection) and whether there is any relevant prior art (novelty and lack of obviousness).

The term of a patent is generally 20 years from the date the application was filed. The patent confers “the right to exclude others from making, using, offering for sale, or selling” the invention in the U.S. or “importing” the invention into the U.S.

A trademark is a word, name, or symbol that is used in trade with goods to indicate the source of the goods and to distinguish the goods from those of others. A servicemark is a trademark of a service rather than a product.

Types of Trademarks:
• Fanciful or coined marks: invented words that have nothing to do with the product and services; usually have the broadest protection, e.g. COCA-COLA®.
• Arbitrary marks: words that have a meaning but not a meaning connected to the goods or services, such as APPLE® for computers.
• Suggestive marks: hint at what the covered goods or services might be, but don’t describe the goods or services, such as COPPERTONE® for tanning lotion.
• Descriptive marks: cannot be registered in most cases unless the mark has acquired distinctiveness as to the goods or services covered, such as RED ROOF INN.

Several factors are considered in registering the trademark, including whether or not there is likelihood of confusion with other marks.

Copyright protects “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.

Copyright protects the form of expression rather than the subject matter. For example, copyright on a description of a machine could prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.

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