Factors of Intellectual Property Protection

Intellectual Property Protection

Abstract

An organizations or individuals intellectual property (IP) is the foundation of their business and what allows them to be competitive and successful. Intellectual property rights are given to the creators of intellectual property which grants them exclusive rights to the property for a defined period (Prakash, 2018).  If everyone could perform services in an identical manner and sell replicated products the competition would degrade.  IP protection also provides confidence to the end user that the product they purchase is legitimate (Drinkard, 2011). Protection of IP embraces the spirit of working hard to create something no one else has in order to develop a competitive edge in the market. IP protection is not a one size fits all solution to protect a companies or individuals hard work. Trademarks, patents, copyrights, and trade secrets all have specific applications.  It is essential that a company understand when they need to protect their IP and the rights provided to them by each type of the different types of IP protection.

Intellectual Property Protection

Intellectual property and the rights given by the appropriate protection are the right given to a company or individual over a creation of the mind.  The purpose of IP law is to incentivize those who develop creative products that provide a benefit to society. IP protection is a method to protect the intangible property that keeps companies and individuals competitive in the modern economy.  These protections limit the ability of competitors to duplicate the creations and gives the owner the sole rights to their creation for a certain length of time, depending on the type of IP.  It is important for companies to protect their IP as soon as possible to mitigate the chance of a competitor claiming the IP for their own.  For the IP creator to properly protect their rights they must understand what type of protection to use in what situation for a given product. A patent for designing a new engine, a trade secret to protect the recipe of Pepsi, a copyright to protect the lyrics of a musician, or a trademark to protect the logo for NASCAR. Each type of IP protection has a specific type of intangible asset it protects and grants the creator certain rights. 

Discussion

Patents

 A patent is authority granted to the creator of intangible property the gives them the ability to exclude others from making, or selling the IP or invention. According to Mukherjee, (2017) “A strong patent protection allows only the original innovator to use the innovated technology and increases innovator’s incentive”.  A patent can be used to protect a business process, medicine formulas, hardware, and software.  A utility patents protects the rights of the creator for a term of 20 years from the time the application is filed, while a design patent generally provides protection for 14 years for the time that patent is granted (International, n.d.).  The difference being that a utility patent protects the way an article work and a design patent protects the way it looks (USPTO, n.d.).  By getting a patent the original creator also retains the right to authorize others to produce and sell their invention.  This authorization is usually granted through a sale or a partner agreement.  Unauthorized use of a patented design or product in called infringement. If a patent is infringed upon the owner has the ability to sue.  The plaintiff has the ability to ask the court for an injunction to stop the usage of their created IP.  They may also sue for damages due to lost revenue or business from someone else producing their product.

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 In order to qualify for a patent one must have a creation that is a novel invention.  This can be determined by performing a patent search with the United States Patent and Trademark Office.  To obtain a patent the creator must submit their application less than 1 year after disclosure of the claimed invention (USPTO, n.d.).  This disclosure can be through sale of the product, a demonstration, or even through speech on publically accessible channels. With that being said it is better to file a patent sooner rather than later.  The creator can lose all rights if a competitor discovers the IP before it is patented and files for a patent claiming the IP as their own.

Copyrights

 A copyright is a form of protection similar to that of a patent but covers a different type of product. Copyright law protects the original author of creative expressions that can be captured in a form or word, numbers, notes, sounds, picture, graphics, or any symbolic media (USPTO, n.d.).  This means that copyrights protect things such as books, poems, musical lyrics, paintings, clothes, and computer graphic designs just to name a few.  Copyright can be hard to acquire if the creative aspect is not strong enough to set it apart for a product utilitarian function (Holton, 2014).  A copyright also allows limited usage of protected material under the fair use doctrine which was incorporated in the 1976 copyright act (USPTO, n.d.).  This allows the use of copyright protected material for things such as criticism, news reporting, teaching, and research (USPTO, n.d.). 

 Copyright protection terms also differ from a patent when discussing the length of time a copyright protects IP. According to the United States Patent and Trademark Office (2018):

  Under the 1909 Copyright Act, copyright protection begins with first publication of the work and lasts for a period of 28 years, renewable for an additional term of 28 years, for a total term of protection of 56 years. In 1976, Congress extended the renewal term to 47 years, increasing the total possible term of protection to 75 years. In 1998, Congress again extended the renewal term by an additional 20 years, for total possible term of protection of 95 years from publication. For works created by individual authors on or after January 1, 1978, copyright protection begins at the moment of creation and lasts for a period of 70 years after the author’s death. In the case of “a joint work” the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works, copyright protection generally lasts for 95 years from publication or 120 years from creation, whichever is shorter.

 Copyright law protects creative IP when the work is created even if registrations with the copyright office has never been completed.  However, it is still recommended to complete the registration. Registration provides a public record of the creation and must be completed before an infringement suit can be filed in U.S. courts and if made within 3 months of publication or prior to infringement the copyright owner is entitled to statutory damages and attorney’s fees in court action (USPTO, n.d.).  While most countries are members or the Berne Convention or Protection of Literary and Artistic Works and/or the Universal Copyright Convention there is no absolute Copyright protection globally (USPTO, n.d.). 

Trademarks

 Trademarks are a method of protecting symbols that are proprietary to a company.  The 3M logo is an example of a trade mark.  The red or black combination, the font, the fact the curves of the “3” lay tangent to the “M” are is something that is universally recognized by a majority of Americans.  This distinguished icon is protected by a trademark and prevents competitors from attempting to use a similar replication of the logo to market their own product.   Trademark protection extends beyond of a logo and can protect a phrase, symbol or any unique design that can be used to identify a source of a service and/or product but does not specifically protect the service or product (Winterfeldt, 2017).  Filing a trademark is important to protect the identification of a company or product but also has additional legal benefits.  If the holder of a trademark does business internationally the Madrid Protocol can provide options additional protection.  The Madrid Protocol is an international treaty that allows a trademark owner to seek registration in any county and participates in the Madrid Protocol by filing a single application (USPTO, n.d.).  The resulting registration is subject to the local laws and rules of each country and does not guarantee international protection.

Before a trademark can be registered for it must be proved that one has either used the mark in commerce or has the intent to use it in commerce (USPTO, n.d.).  The term for a trademark is 10 years and can be renewed as long as the owner continues to use the trade mark but also takes some maintenance to keep it properly protected.  The owner must file for renewal within the year before each successive 10 year period (USPTO, n.d.). Additionally, within each 10 year period the owner must file an affidavit of use between the fifth and sixth year of use (USPTO, n.d.). 

Trade Secrets

 The final type of form of IP that can be protected is a trade secret. According to the United States Patent and Trademark Office (2018) ‘trade secrets consist of information and can include a formula, pattern, compilation, program, device, method, technique, or process”.  To be considered a trade secret is needs to be used in commerce and provide opportunity for advantage to the owner over anyone who does not understand it or know it (Sandeen, 2017). A trade secret is limited because it only provides the owner protection of misappropriation.  If a trade secret is disclosed to the public in any form the trade secret and associated protection is lost. 

 Trade secrets do not have a set time frame of protection. Trade secrets do not protect against individual discovery but can be protected as long as the product or services is valuable and the owner takes reasonable steps to protect the discovery of it. There is no registration process with the government because this would require disclosure of the trade secret. The responsibility falls upon the owner to protect the secret. While this may sound difficult to do effectively The Coca-Cola Company has been protecting the recipe for original Coke successfully since 1891. 

Conclusion

Conclusion

Proper IP protection can be the one factor that separates a million dollar business from bankruptcy. Preventing competitors from capitalizing on a creators hard work starts with proper IP protection and understanding the legal right granted by that protection. Whether it be a patent, copyright, trademark, or trade secret there is a way to protect the hard work of the creator.  It is important to understand when, how and what protections are granted through each different process.  These requirements can guide the creator to the proper type of IP protection.

References

• Drinkard, D. (2011). The Importance of Protecting Intellectual Property Rights. Foreign Service Journal, 88(2), 32–36. Retrieved from https://search-ebscohost-com.ezproxy.umary .edu/login.aspx? direct=true&db=asn&AN=59759559&site=ehost-live
• Holton, P. (2014). Intellectual Property Laws for Fashion Designers Need No Embellishments: They Are Already in Style. Journal of Corporation Law, 39(2), 415–436. Retrieved from https://search-ebscohost-com.ezproxy.umary.edu/login.aspx?direct= true&db=buh&AN=95273875&site=ehost-live
• International Trade Administration. (n.d.). Retrieved from https://www.stopfakes.gov/welcome
• Mukherjee, A. (2017). Patent Protection and R&D with Endogenous Market Structure. Journal of Industrial Economics, 65(1), 220–234. https://doi-org.ezproxy.umary.edu/10.1111/ joie.12110
• Prakash, A., Sarma, P., Kumar, S., & Medhi, B. (2018). Intellectual property rights and Indian pharmaceutical industry: Present scenario. Indian Journal of Pharmacology, 50(2), 57–60. https://doi-org.ezproxy.umary.edu/10.4103/ijp.IJPpass:[_]320_18
• Sandeen, S. K., & Seaman, C. B. (2017). Toward a Federal Jurisprudence of Trade Secret Law. Berkeley Technology Law Journal, 32(2), 829–913. https://doi-org.ezproxy.umary.edu/10  .15779/Z381G0HV10
• USPTO Office of Public Affairs. (n.d.). United States Patent and Trademark Office. Retrieved from http://www.uspto.gov/
• Winterfeldt, B. J., & Barnett, G. M. (2017). Trademark Rights Protection Mechanisms in the Domain Name System: Current Landscape and Efforts to Diminish Protection. Intellectual Property & Technology Law Journal, 29(9), 17–22. Retrieved from https://search-ebscohost-com.ezproxy.umary.edu/login.aspx?direct=true &db=buh&AN=124843525&site=ehost-live