Patent, Copyright & Trademark: An Intellectual Property Desk Referenceby Richard Stim
A plain-English guide to intellectual property law.
Whether you are in the world of business or creative arts, you need to understand the laws that govern your work. But given the convoluted terminology that surrounds patents, copyrights, trademarks, and other intellectual property rights, this isn’t easy. Enter, Patent, Copyright & Trademark, which/i>… See more details below
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A plain-English guide to intellectual property law.
Whether you are in the world of business or creative arts, you need to understand the laws that govern your work. But given the convoluted terminology that surrounds patents, copyrights, trademarks, and other intellectual property rights, this isn’t easy. Enter, Patent, Copyright & Trademark, which explains:
Here, you’ll find plain-English definitions of intellectual property law terms, straightforward explanations of how intellectual property law affects online contentand much more.
The 14th edition is completely updated to provide the latest laws, court decisions, and sample forms.
“Provides an overview of patent, copyright, trademark and trade secret law, as well as hundreds of definitions of related terminology.” - Orange County Register
“This book provides clear, plain-English definitions of intellectual property terminology, including [those] spawned by the Internet.” - Popular Mechanics
Read an Excerpt
Intellectual property refers to products of the human intellect that have commercial value and that receive legal protection. Typically, intellectual property encompasses creative works, products, processes, imagery, inventions and services and is protected by patent, copyright, trademark, or trade secret law.
The commercial value of intellectual property comes from the ability of its owner to control and exploit its use. If the owner could not legally require payment in exchange for use, ownership of D34the intellectual property would have litle if any commercial value.
Example 1: At the end of the 1930s Walt Disney took a big gamble. Nobody had ever made a full-length animated feature. Many people felt the idea was foolish, including Mr. Disney's business partner and brother, Roy. But Walt Disney believed that the public was ready for full-length animated features and in 1937 he borrowed heavily from Bank of America to make the film, Snow White and the Seven Dwarfs. The success of that film led to other classic animated features including Fantasia, Lady and the Tramp, and 101 Dalmations. These films are now among the most valuable copyright properties in the world and have been rereleased numerous times and in different formats. The Disney Company has earned billions of dollars from the monopoly created by its copyrights on full-length animated films. The company has successfully used copyright law to prevent others from copying and selling the films without authorization.
Example 2: In the 1990s, Lonnie Johnson, an ex-NASA engineer, improved upon a staple of every child's toy weapons arsenal when he created one of the most populartoys of the 1990s, a squirt gun with phenomenal spraying power. Mr. Johnson acquired a U.S. patent for his invention (U.S. Pat. 4591071) and was able to license the rights to several companies who paid millions of dollars in royalties to Mr. Johnson. The product was sold under the trademarked name "Super Soaker," and the exclusive right to use this name further enhanced the value and good will of the product. Under patent law, Mr. Johnson was able to stop others, during the term of his patent, from the unauthorized making, using and selling of his invention.
How Intellectual Property Law Works
Intellectual property laws, along with court decisions and regulations, establish rules for the following activities:
1. selling or licensing of intellectual property
2. resolving disputes between companies making or selling similar intellectual property products and services, and
3. the registration and administration of intellectual property.
Intellectual property laws don't prevent someone from stepping on the owner's rights. But the laws do give an owner the ammunition to take a trespasser to court. This is the most well-known benefit of owning intellectual property: The owner acquires exclusive rights and can file a lawsuit to stop others who use the property without authorization. If the intellectual property owner does not confront the person or company or who has acted without permission, then the illegal activity will likely continue.
Types of Intellectual Property Laws
Intellectual property law consists of several separate and overlapping legal disciplines, each with their own characteristics and terminology.
* Patent law. There are three types of patents: utility, design, and plant. Utility patents (the most common patent) are granted to the inventor of a new, nonobvious invention. The utility patent owner has the exclusive right to make, use, and sell the invention for a limited term -- usually 17 to 18 years. A design patent (for a new but nonfunctional design) lasts 14 years after the date the patent issues. A plant patent expires 20 years from the date the patent was filed.
* Copyright law. Copyrights are granted for original creative expressions produced by authors, composers, artists, designers, programmers, and similar creative individuals. Copyright law does not protect ideas and facts; only the manner in which those ideas and facts are expressed. Copyright protection lasts a long time, often more than 100 years.
* Trademark law. Trademark law protects the rights of businesses who use distinctive names, designs, logos, slogans, or other signifiers to identify and distinguish their products and services. This protection can last as long as the company uses the trademark in commerce -- for example, many trademarks such as Coca-Cola and General Mills have been protected for over a century.
* Trade secret law. A trade secret is any confidential information that gives a business a competitive advantage. Under trade secret law, the owner of this confidential information can prevent others from using the information if it was obtained illegally. Trade secret protection lasts for as long as the business maintains the secret.
Legal Basis of Intellectual Property Laws
The sources of intellectual property laws vary according to the subject matter. Copyright and patent laws are derived from powers originating in the U.S. Constitution and are specifically and exclusively implemented by federal statutes. In all of these areas, court decisions provide important principles governing the application of intellectual property laws. Trademark laws originate primarily in both federal and state statutes but also are derived from court decisions that apply principles developed by earlier courts as part of the common law. Trade secret law derives both from federal and state legislation and from court cases that have developed their own set of principles used to decide new trade secret cases that come before them (termed the "common law").
Intellectual Property Overlap
Sometimes, trade secret, copyright, patent, and trademark laws intersect with each other with respect to a particular product or service. Some common examples of this are as follows:
* Trade secret and patent. It is possible to pursue a patent application while simultaneously maintaining the invention as a trade secret, at least for the first 18 months of the U.S. patent application process. The U.S. Patent and Trademark Office (USPTO) treats applications as confidential until they are published. Unless the applicant files a Nonpublication Request (NPR) at the time of filing, and doesn't file for a patent outside the U.S., the PTO will publish the application within 18 months of the filing date.
* Copyright and trademark. It's not uncommon for an item to be protected under both trademark and copyright law. For example, the expressive artwork in a package design may be protected by copyright, while the overall look and feel of the package may be protected as a form of trademark. Likewise, an advertisement may include some material covered by copyright (for example, a jingle) and other material covered by trademark (the product or company name). The difference here is that copyright protects the literal expression, while trademark protects whatever is used to designate the source of a product or service being offered in the marketplace.
* Patent, copyright, and trademark. Patent law can intersect with copyright and trademark law in the case of certain products. For example, the designer of a toy or of jewelry may protect the device's name or appearance (as a trademark), the design of the item (design patent), the appearance of any artwork or graphics (copyright) and the novel, nonobvious functionality of the device (utility patent).
Intellectual Property and the Internet
Intellectual property laws came under intense scrutiny with the popularization of the Internet at the end of the 20th century. The ability to transform documents, movies, music, and other expressions into digital copies suddenly made near-perfect copying possible for everyone, not just bootleggers and pirates. The Internet enabled the widespread distribution of these unauthorized copies as well as a plethora of other issues relating to trademarks and domain names, the publication of trade secrets, the linking of websites, and the invention of patentable business processes (business method patents). Along with these changes came disputes and new laws. Throughout this book, we have included Internet-related definitions and issues.
Most countries in the world have entered into intellectual property treaties that afford members mutual rights. This does not mean that anything protected in the U.S. will be protected abroad. However, intellectual property that is protected in America may achieve protection abroad under the standardized rules established by the various treaties. For example, the Madrid Protocol has standardized the process for obtaining trademark protection among member countries. Similarly, the Berne Convention establishes international copyright principles, and the Paris Convention and the Patent Cooperation Treaty offer harmonization for owners of patents. Trade secrets may receive international protection under GATT (General Agreement on Tariffs and Trade).
Determining What Rights Apply to Your Work
If you are concerned with a creation of your own, you'll first need to know what form (or forms) of intellectual property applies to it. On the next few pages, we've provided a detailed chart that classifies how creative works are protected .
These basic rules can help you get started.
* Utility patents are awarded for new processes, machines, manufactures, or compositions of matter, or new uses of any of the above
* Design patents are awarded to nonfunctional, ornamental, or aesthetic design elements of an invention or product.
* Plant patents a granted for asexually or sexually reproducible plants (such as flowers).
* Copyright law protects expressions of creative ideas such as songs, artwork, writing, films, software, architecture, and video games.
* Trademark law protects marketing signifiers such as the name of a product or service or the symbols, logos, shapes, designs, sounds, or smells used to identify it.
* Trade secret law commonly protect confidential designs, devices, processes, compositions, techniques, formulas, information, or recipes.
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Patent Agent of Morgan and Associates
Meet the Author
Richard Stim specializes in small business, copyright, patents, and trademark issues at Nolo. He practices law in San Francisco and has represented photographers, software developers, craftspeople, publishers, musicians, and toy designers. He is the author of many books, including Music Law: How to Run Your Band's Business, Patent, Copyright & Trademark: An Intellectual Property Desk Reference, and Profit From Your Idea. Stim regularly answers readers' intellectual property questions at Dear Rich: An Intellectual Property Blog.
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