If someone steals your personal property, you can file a report with the local authorities and rely on the criminal laws for protection. But how can you protect your idea from being stolen?
Protect your ideas with a patent, trademark or copyright.
Ideas, or intellectual property (IP), are considered intangible property in the eyes of the law and can be granted certain legal protections in the form of patents, trademarks, copyrights, and trade secret. These protections allow for control of IP use and provide a means for prosecuting unauthorized users or infringing parties.
The protection is generally achieved through federal registration and recording by an individual or business as the owner of IP, which puts the public on notice that the IP is protected and permission must be sought before using the IP.
Utility Patents cover inventions and certain processes and must be federally registered with the U.S. Patent and Trademark Office (USPTO). A patent does not necessarily allow the holder, or assignee, the right to make or use what is in the patent. Rather, it gives the holder the right to prevent others from making the protected invention or using the protected process.
There are three main requirements for a patent:
1) there must be a specific, beneficial use of the claimed invention or process;
2) the claimed invention must be new or a novel improvement on an existing invention or process; and
3) it must not be apparent or obvious to invent.
A patent will last for 20 years from the date the application is filed with the USPTO. Once the patent expires, the invention or process becomes public domain. To obtain a patent, an application is filed with the USPTO, which then reviews the application to determine if it is unique, novel, and useful. The process generally takes two and a half years but can last much longer depending on the nature of the invention.*
Design Patents protect the ornamental designs of useful products. Design patents must be new or a novel improvement and must be non-obvious, but it does not have to be useful. A design patent protects only the appearance of an object and not the actual structure or function. If a design fails to obtain protection under copyright, it can often times be protected with a design patent.
Trademarks protect a unique word, phrase, symbol, drawing, design or any combination thereof (a company’s logo) which identifies or distinguishes the products of one company from competitors. The purpose of a trademark is to allow consumers to easily identify and distinguish the supplier of products.
To enforce a trademark, there must be a likelihood of confusion between the protected logo and the infringing logo. Unlike patents, trademarks do not have to be federally registered to gain protection; they simply must be used in commerce and identified with the product they represent; however, federal registration provides stronger protection.
Federally registered trademarks are protected for 10 years and may be renewed indefinitely. To obtain federal registration, an application is filed with the USPTO and a search of previous marks is conducted. The USPTO will review the application and publish the mark for any public opposition; if there is no opposition the trademark will issue. The process takes around 12 months.
Copyrights are used to protect written and artistic expressions of ideas. To gain protection, the work must be original, it must be the product of the author, and it must be fixed in a tangible medium (for example written on paper, painted on a canvas, or sculpted out of clay). With the boom in computing and software, copyright protection has been extended to computer programs in their source code form.
Copyright protection attaches automatically upon creation of a work meeting the requirements and lasts for the life of the author plus up to 120 years. To put the public on notice of the protection, the © symbol can be used followed by the year the work was created.
A Trade Secret can protect know-how, designs, processes, or inventions. Trade secrets require no registration and can last indefinitely. Unlike the above-mentioned protections, trade secret law is largely handled at the state level. For trade secrets, the burden is on the party seeking protection to put forth their best efforts to maintain the proprietary nature of what is being protected. The downside to trade secret is if a competitor can discover the trade secret through reverse engineering, public domain, or alternate means that do not violate the law, the trade secret is lost.
For more information on strategies to protect your idea, contact one of the attorneys here at the Wladis Law Firm by calling (315)445-1700 or by visiting our website.