What’s the Difference? The four elements of intellectual property explained
Posted on June 29, 2022
Intellectual Property is actually a relatively new concept, historically speaking. Rights to intangible property didn’t become codified until the Statute of Anne in the 18th century; this is widely considered the first legally binding document defining and establishing intellectual property. However, it’s still a far cry from our modern experience with Intellectual Property (or IP as it is lovingly and occasionally derisively referred). As is common in the legal realm, the Statute described a phenomenon that had been causing distress for many years before it was adequately defined and codified. Today we think of IP as the legal protection for intangible, creative products. For something to have the full weight of IP law behind it must be fixed. As such, ideas, conversations, facts, and data are not necessarily protected.
There are four different sub-categories that belong to the larger realm of intellectual property. They are copyright, patent, trademark, and trade secrets. We’ll discuss each of them below:
If you’ve read any of my previous posts, you are aware that copyright is a creator’s limited monopoly on the use of their creative work. In the US Constitution, copyright sets aside for a limited time the sole use of what is referred to as the bundle of rights. This bundle includes the right to reproduce, make copies, disseminate or share, make derivatives including translations, and in the case of performances the sole ability to display and perform (which includes plays and music). These rights can be distributed either in part or in whole. For example, when you include work in William and Mary’s institutional repository ScholarWorks, you give W&M Libraries the non-exclusive right to disseminate your work. We store the work (preserve) and make it globally accessible, but we don’t obtain any of the other rights to your work.
A patent is a grant by the U.S. Patent and Trademark Office (USPTO) that allows the patent owner to maintain a monopoly for a limited time for the use and development of an invention. There are three different types of patents: 1. utility patents; 2. design patents; and 3. plant patents. Usually, when people use the word “patent” they are referring to a utility patent, which allows the creator of a useful, novel, non-obvious invention to stop others from making, using, or selling that invention for a specific period of time (usually 17 to 18 years). Most patent owners make arrangements with an existing company to commercialize an invention. When the USPTO is deciding whether an invention qualifies for a patent, they first determine if the invention is a novel or new development. If it is novel, the next qualification is nonobvious. They ask, is this invention particularly clever? There are five statutory categories for the types of utility patents (the other types of patents also have categories); they are a process, a machine, a manufacture, a composition of matter, or an improvement of an existing idea. Once a patent has been terminated for any reason, the invention falls into the public domain.
A trademark is a distinctive word, phrase, logo, graphic symbol, or another device that is used to identify the source of a product or service and to distinguish it from any competitors. It can be more than just a brand name or a logo. Other nonfunctional but distinctive aspects of a product or service that tend to promote or distinguish it in the marketplace, such as shapes, letters, numbers, sounds, smells, or colors. Examples include the Apple logo, Nike swoosh, and McDonald's fry arches. Like with copyright, the TM mark is not necessary to establish a trademark. The “R” in a circle (®), however, is different. To use the R symbol, the trademark must be registered with the USPTO.
Trade Secrets are any information that has actual or potential commercial value, that has been maintained in confidence by a business, and is not known by competitors. A business that owns trade secrets is entitled to court relief against those who have stolen the secrets or divulged them in violation of a legal duty. Information is most likely to be considered a trade secret if it is not known outside of the business; known only by employees or others directly involved with the business; subject to reasonable measures to guard the secrecy of the information; valuable; and difficult for others to properly acquire or independently duplicate.
These four distinct subcategories fall under the umbrella of intellectual property. Legal protection of intellectual property is necessary for the advancement and progress of society as it encourages creators to create. There is a delicate balance of protecting the creator’s rights to their work and the public use of the work. For copyright, the fair use exemption applies to specific uses of copyright-protected materials. Most patents and trademarks have significantly shorter time limits on use so that the information comes into the public domain quicker and allows for future modification and reuse.