Intellectual Property – Part I – Creation & Protection

by Thomas Frasher on June 30, 2009

Intellectual Property (IP) – Creation & Exploitation

From Wikipedia: “… legal property rights over creations of the mind, both artistic and commercial, and the corresponding fields of law. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; ideas, discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property include copyrights, trademarks, patents, industrial design rights and trade secrets.”

Definitions:

Patent: A patent is the right given by the government to the exclusive right to exploit an invention for a limited time in return for disclosing the invention.

Copyright: a copyright is a right given by the government to a publication for a limited time for any idea that is expressed in a fixed medium (books, film, recordings, etc).

Trademark: A trademark is a distinctive label, sign or indicator used to identify products or services supplied by a single individual, business or other entity.

Industrial design rights: Industrial design rights are intellectual property rights that protest the look and feel of inventions.  Covered are shape, size, color, physical design and or any combination of all of these factors.

Trade Secret: A trade secret is any formula, practice, design, tooling or instrumentation that is not easily derivable nor generally known, used by a business or individual to create and maintain a durable market advantage over competitors.

Reason’s for filing for intellectual property rights protection:

1. Economic exploitation of original work – first and foremost IP protection provides for a limited monopoly in which the owner can exploit their creation for profit.  As a business develops IP they are then free to market and develop additional products and derive further IP to increase the enterprise value of the business. Licensing or sale of the IP to someone that can further exploit the market is a valid business reason to file for IP protection.

2. Protect future business directions from encumbrances – Many businesses create a large patent portfolio in their chosen area of competency in order to fend off competition.  Failure to do this can lead a company to find themselves constrained and unable to continue to innovate on their preferred product road-map and either scrambling to re-innovate around their competition or watching their competition walk away with the market.

3. Constraining competition – Related to #2 above, this method is used to prevent either casual or intentional incursion into the enterprise’s market space. In most cases these are patents that may never be economically exploited but will be vigorously defended to prevent the marketplace and the identity and brand of a company from becoming diluted (think of Kleenex).

Why patent anything?

This is a simple question to answer: because you need to in order to compete in the marketplace.  If you invent a new product, service, practice or addition and don’t protect it, your competition will.  When your competition completes their protective efforts you will be constrained from producing the product or held as an economic hostage in the form of royalties and perhaps punitive payments for the production of the product that you invented.

Another reason to prepare a patent filing has nothing to do with protecting anything; and has everything to do with clarification of thinking on the design.  In order to prepare a complete patent filing, you are required to think through the patent carefully, this can illuminate many places in the design where it is weak, flawed, something is missing or the thinking is incomplete, and creates the space to remedy that part of the design.

What is required to patent an idea?

There are 4 things needed to support a patent filing:

  1. Invention needs to be New, Useful and Non-Obvious.
  2. A patent search to determine if any prior art exists (prior art is the term for someone else having thought of the invention earlier), or if the prior art applies.
  3. A good patent description.  There are many things that go into this piece of the plan, for a hint follow this link:  http://www.novelthink.com/novelthink/enough.html
  4. Consult a patent attorney.  Patents cost a fair amount of money to file, the more work you do up front that less you pay the attorney, however, they can save more than they cost if the prevent you from filing a disclosure that will fail. Build a relationship with a local attorney, it will be very helpful.

Why copyright anything?

This is also simple to address: you don’t have to.  The copyrights of all works exist by default with no need to do anything.  As additional protection the work can be filed with the copyright office http://www.copyright.gov . Having obtained a copyright the owner now has the ability to seek statutory damages and attorney’s fees from violators. Without the filing the question falls to who invented first.

Do I need an Attorney?

Technically speaking the answer is “No”, however, practically speaking engaging with an attorney as a form of help is very desirable.

For example: there are many terms used in filing a patent that legally either open or close the claim statement. http://www.bpmlegal.com/patgloss.html Ignorance of these can severely change the protections granted by the patent. You will need help, so get it!

Summary:

Intellectual property rights protection is important in today’s business environment if the business is delivering products for profit and wishes to build a durable market advantage over their competition.  Failure to do so can result in loss of the market that the business has built.

That said there is no single template for what or how to patent or copyright any specific item and there are almost as many ways to file a patent as people filing them, and as many as have been filed.  I have nearly 300 patent submissions and all differ from each other in some way.

So, do the research, write the patent, talk with an attorney and invent something new, useful and non-obvious!

Next week – Templates!

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