Intellectual Property protection (IP protection) is a means for preserving the integrity of inventions, literary and artistic works, symbols, designs and images created by the mind (intellect). Both entrepreneurs and business owners need to understand how IP law works in order to best protect their creations and ideas from being stolen by others. Be sure to speak with an intellectual property attorney to get the most thorough information possible in order avoid theft of your ideas.
Because filing Intellectual Property applications is time-intensive (and costly if filed incorrectly), you will need to determine what type of IP protection you need for your creation. There are four types of IP protection: patents, trademarks, trade secrets and copyrights. An invention can have one or more of these forms of protection at a time. Take a bottle of Coca-Cola ® as an example. The brand (Coca-Cola®) is a registered trademark. The formula is a trade secret. The graphic design is protected by copyright, while the shape of the bottle itself is protected by both a design patent and a trademark.
A patent sets properly rights on an invention allowing the patent holder to prevent others from making selling or using the invention. Patents allow businesses to succeed by using the new and improved processes or products to give them an edge over their competitors in the market place. To obtain patents and patent plaques, you will need to file an application with the U.S. Patent and Trademark Office.
There are three types of patents: utility, design and plant. A utility patent is the most common type of patent and covers processes, machines and compositions, along with any improvements to said article. In order to qualify for a utility patent, the invention must be:
- Unique and not known by anyone else
- Not obvious to anyone having standard skills in the industry
- Have some form of usefulness
In order to let your competitors know that your product is in the process of being patented, you can file for a provincial utility patent that allows you to use the words “patent pending” until your full utility patent is active.
Design patents cover new and improved designs for any manufactured article. In order to file for a design patent, you will need to submit detailed drawings from all sides of the object along with a specific description.
A plant patent is applied to new strains of asexually reproduced plants, meaning that they were reproduced by budding or grafting onto a pre-existing species. Any new plant not derived from a tuber or from the wild can receive a pant patent. Both plant and utility patents last for 20 years, while design patents last for 14 years.
If you have patent protection on your products, you can legally prosecute anyone who copies your design, invention or discovery. If you fail to file for patent protection on your products within in a 12-month period of releasing it to the public, you will lose the opportunity to obtain a patent forever.
It is possible that multiple entities will file for a patent on the same creation. When reviewing applications, the U.S. Patent and Trademark Office will usually default to the first applicant. Because proving who first used a new invention is virtually impossible, you might lose your chance to patent your product if you delay the patent process.
A trademark is defined as a symbol, design, phrase or work that creates a distinction between the source of the process or services from one business to a competitor. In order to apply for patent protection, a trademark has to be unique. Before you applying to register your trademark, consider checking federal and state databases to ensure that a similar trademark does not exist. This search can help you avoid wasting time and money spend trying to patent a trademark that has already been registered.
In order to apply for a trademark, you will need a clear representation of the mark itself along with identification of the products to which the mark applies. You can submit the application online. Fees will vary on a case-by-case basis.
A trademark will expire after 10 years with a renewal extension of 10 additional years. Before the mark is approved, you are allowed to use the TM symbol to represent your ownership of the mark. However, you cannot legally use the ® symbol until your patent request has been approved. Using the TM symbol for your business while you are waiting for the application to be approved lets your competitors know that you intend to patent this product. Before you use the TM mark, you will need to file an “intend to use” application. You will then file a “use” application after you have associated the mark with your products.
Trade secrets consist of any kind of business information that is kept private to obtain an advantage over competitors. Trade secret examples include: soda recipes, customer lists and computer algorithms. Unlike the other three types of Intellectual Property protection, you can’t register a trade secret. Protection only lasts as long you take the steps necessary to prevent the dissemination and use of the information by others. You can accomplish this by having those privy to the secret sign non-disclosure forms and limiting the number of people who have access to the information.
Copyrights protect the products of authorship such as music, literary works, theater and drama presentations, photographs, architectural works and computer software. If your product is copyrighted, you and you alone have the right to alter, distribute, perform, display and/or reproduce the work. In order to meet the requirements for copyright protection, the work must be in a physically tangible format.
Copyright protection for a creation exists from the moment it was invented, so registration is optional. However, if you register your copyright, you have the ability to pursue a copyright infringement suit should the occasion arise. Copyright registration is possible online with a non-refundable fee and the sending in of a non-returnable copy of the work. Average processing time for electronic filing is around 10 weeks. Paper filing takes a little longer at 5 ½ months. In general, works created after the beginning of the year 1971 are copyrighted for the lifetime of the author and then 70 years after their death. A copyright is non-renewable.