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Patents, Copyrights & Trademarks For Dummies
By Henri Charmasson
John Wiley & SonsISBN: 0-7645-2551-4
Chapter OneExamining the Tools in Your IP Box
In this Chapter
* Understanding the difference between IP assets and IP rights
* Looking at patents and what they can protect
* Looking at copyrights and their applications
* Looking at trademarks and related commercial names
* Looking at trade secrets and their use
* Making money with your IP rights
* Enforcing your IP rights in court
Welcome to the world of intellectual property (IP). If you've created, invented, or named something that you're selling, you already have intellectual property. And that property could be quite valuable. What if you'd invented the Segway scooter or written the first For Dummies book? Wouldn't you like to be able to cash in on it? Exploiting your IP assets for your own financial gain and, at the same time, pursuing those bent on infringing your precious but fragile rights to those assets (IP rights) is what this chapter and, in general, this book are all about.
Buying into Intellectual Property
What is intellectual property? Although I've encountered many true and effective definitions, including information with a commercial value, proprietary product of the mind, and things protected by patents, copyrights, and trademarks, none of them is quite complete. Here's the one I like best:
Intellectual property is intangiblecreations of the mind that can be legally protected. Because IP has no physical form, I can give you a better idea of what it is by providing examples of what it isn't. Intellectual property is not
Now, if you'd be so kind as to refer back to my scintillating IP definition, I want to expand on it. Intellectual property is made up of two components:
Patents: Obtaining a patent protects the invention from outright thievery.
Trade secrets: Keeping a formula or manufacturing process confidential safeguards it against imitators.
Copyright: Holding a copyright shields artistic expression against copying by others.
Trademark: Adopting a trademark as a brand name keeps it and its market reputation yours and yours alone.
Some IP rights - copyrights and trademark rights, in particular - attach themselves automatically upon the creation or use of the IP assets without you ever having to lift a finger or spend a cent. Obtaining other IP rights - patents, specifically - requires you to put up a pretty good fight and spend plenty of money.
What happens when you don't protect your IP rights? Sorry, Charlie, but an unprotected IP asset is up for grabs - anyone can copy it, steal it, or change it for the worse (possibly damaging your good reputation). The bottom line is that your unprotected IP will fatten the bad guy's bottom line.
But there's more to IP assets and rights than mere talk of patents, copyrights, and trademarks, and that's what this chapter is all about. You first must verify that you own that IP asset you want to protect, make sure that it's original, and know how to secure all the IP rights that can apply to it. And last but not least, you have to know how to get the professional advice that you need. Curtain, please.
Exploring the Patent Process
I may as well start with the most well-known (though not the most practical) form of IP protection - patents. A patent is a temporary legal right granted by the government as a reward for a unique invention, giving the inventor a way to keep others from stealing the fruits of his or her labor - the invention.
While I'm on a roll, how about another definition? Patent law defines an invention as a technological advancement that is useful, new, and isn't obvious to a person with ordinary skill in the field of technology. Inventions can take many forms, from a machine or device to a method or process, from a new composition to a new use of an old product, from a man-made organism to a new plant created with or without sexual fertilization (you know, the birds and the bees thing).
If you're wondering whether your latest and greatest invention actually fits the invention bill, check out Chapter 4, which details the types of patents and the inventions covered by each.
Obtaining a patent
You must file an elaborate application that completely describes your invention in order to get a patent from the United States Patent and Trademark Office (USPTO - I cover the nuts and bolts of this application in Chapter 7). The USPTO rigorously examines your application (see Chapter 8 and Chapter 9 for all the gory details). If you pass the test, you're granted permission to pay a hefty fee so those nice people at the USPTO can afford to print your patent and take a long, well-deserved summer vacation. After all, they think they earned it by making you sweat blood for the last two years. (Chapter 10 covers that info, minus the vacation itinerary.) Yes, that's the minimum amount of time it takes to get your application approved if, of course, the moon is right and the gods are with you.
Make no bones about it, the patent process is costly in terms of both time and money (and blood, sweat, and tears). So if you're thinking you may want to head down this road, you need to be sure that it's the best path for protecting your IP. (Check out Chapter 5, which provides you with other options and an exercise to help you decide whether a patent's the right choice.) The first stop in your journey will likely be to conduct a patent search before pouring a bunch of money into a doubtful application. (Chapter 6 provides a road map for that side trip.)
Putting a patent to good use
Emblazoned with fancy lettering and a big shining seal with blue ribbons, a framed patent makes an impressive conversation piece on your living room or office wall.
Oh yeah, you can also use it to threaten imitators with a lawsuit if they're using and abusing your invention. Basically, a patent is nothing more than a license to sue someone. If the copycat answers with an obscene gesture, you can mortgage everything you own down to your grandfather's dentures and file an infringement lawsuit. If the Force is with you, the litigation goes well for your side, and your adversary is flush with greenbacks, you'll make a bundle. Find out what else you can do with your patent in the section "Putting Your IP to Work at Home and Abroad," at the end of this chapter.
Yes, a patent has teeth, but those teeth come at great expense. So looking at your other IP rights is a good idea, too. You can also buy insurance policies that cover some of your litigation costs. I discuss that issue in detail in Chapter 20.
Copyrighting Your Creations
Although derived from the same constitutional mandate as patents, copyrights resemble them only superficially. A copyright is a temporary right giving a creative person exclusive control over the use of an original work of authorship.
Okay, one more definition: An original work of authorship (OWA) is a textual, graphic, plastic, musical, dramatic, audio, or visual creation that you created. A few examples of original works of authorship (for the complete scoop, turn to Chapter 11) are
Even when the same thing was done before, you can obtain a copyright if your work wasn't copied from or influenced by the pre-existing work. For example, just think of how many books have recanted the life stories of the Kennedys. A copyright protects the form in which an idea or concept is expressed, not the idea or the concept itself.
Copyright basically doesn't extend to abstractions or to something technical or functional. For example, an idea for a new TV program isn't protected by copyright. The way the idea for the show is developed and played out is protected. The copyright on a cookbook prevents anyone from copying the way the various recipes are expressed in words or images, selected, and arranged. It doesn't prevent you from freely using the very same recipes and even incorporating them step by step into your own cookbook (because the steps are actually a technical process) as long as you don't express them in the same style, compile them in the same order, or arrange them in the same format. I go over this idea/expression distinction in great detail in Chapter 11.
Getting your hands on a copyright
Check this out: After you've created an original work of authorship (like the doodlings you used to decorate your geometry manual while Miss Squareroot attempted to explain the quadrature of the circle), all you need to do to get a copyright is relax and have a glass of chardonnay to my health. Or better yet, send me a check for this worthwhile advice.
Seriously, that's it! Copyright attaches automatically as soon as the work is shown in a perceptible and reproducible form without the need for any formality. That means that as soon as you've printed out your great American novel, it's already copyrighted. That's a big advantage over patents. If, however, you may want to sue someone for infringement, or worse yet, someone sues you, you need to prove that it's actually your original work. That's why you should make it official - apply for a registration of your copyright with the Copyright Office and submit a copy of your creation as proof of your authorship.
Going after the bad guys
You can use your copyright in much the same way you use a patent - to pressure and sue an infringer - except that copyright litigation tends to be much less expensive than patent disputes.
Claiming Your Identity: Trademarks and Other Commercial Handles
Trademarks are only one species within a class of IP assets called commercial identifiers that you use to distinguish your company, product, or services from others. The three basic types of commercial identifiers (which I cover in more detail in Chapter 14) are
Any fanciful and nonfunctional characteristic of a product or package can act as a product identifier - for example, the ribbed bottle of a large soft-drink company or the pink color of a glass-wool insulation material. These nonfunctional characteristics often are referred to as configuration, design marks, or trade dress, which, like trademarks, can be registered at the state and federal levels.
Commercial identifiers constitute the IP rights that I consider to be most neglected, misunderstood, and underestimated by entrepreneurs in their new industrial, commercial, educational, or scientific ventures. Watching as new businesses spend lots on money on chancy patent applications always puzzles me when they're obviously neglecting the wondrous marketing tools provided by good commercial identifiers.
Company image, product fame, or a reputation for providing quality service are critical aspects of a business that can be greatly enhanced by and benefit from the right choice and use of pleasant and motivating monikers, logos, and distinctive and attractive packaging. However, coming up with an identifier that's a hit with customers isn't easy, so I devote the whole of Chapter 15 to providing some insight in making such a selection.
Likewise, I detail all you need to know about the ins and outs of developing marks and names that the courts will protect, and explain how the degree of protection awarded to company identifiers and other commercial names depends mainly upon the distinctiveness of the name, all in Chapter 14.
A great name can be the most valuable asset of a company and deserves a lot of attention and appropriate protective measures, such as federal registration and proper usage. But a great commercial identifier won't do you any good if it duplicates an existing identifier, so before you begin the registration process, discussed in Chapter 17, you'll want to do a search to make sure no one else is using your brainchild (or something close). I explain trademark searches in Chapter 16.
Keeping It Quiet: Trade Secrets
Kiss and tell only on a need-to-know basis ... keep it under your hat. The best way to keep a commercially advantageous piece of information like a manufacturing method or customer list away from your competitors is to take advantage of laws that protect trade secrets, a very important and inexpensive IP right. Don't let anyone in on a trade secret other than the people who necessarily need to know about it.
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