What Everyone Should Know About Intellectual Property

Intellectual property (IP) is a catch-all term that covers creations of the mind, or intellect, that are both commercial and artistic in nature.

There are two categories of such property, the first of which includes creative works such as books, movies, music, paintings, photographs and software. These are covered by copyright laws, which offer copyright holders the exclusive right to control the adaptation or replication of the works for a certain statutory period of time.

The second category, known as "industrial properties," includes those things created for industrial or commercial uses. Patents give the inventor and/or patent holder the right to stop others from using the invention unless they pay a license fee (again, for a certain period of time). Trademarks, also a kind of industrial property, are distinctive signs that reduce the confusion among similar kinds of products.

“Intellectual property rights" includes, as a subset, industrial design rights, and these protect the particular appearance, design, form, style or design of industrial object from various kinds of infringement, such as being cloned, copied or counterfeited. Another type of intellectual property is a trade secret, meaning proprietary, normally confidential information about the commercial products or practices of a business. Disclosing trade secrets to the public without permission is illegal in most jurisdictions.

A short history lesson
If creators of intellectual property were not protected, they would have little incentive to continue researching and developing products for public use, and would tend to keep things secret. Therefore, economic growth in the industrialized nations is, to a large extent, dependent on the protections afforded inventors, writers and artists by IP laws.

According to some economists, some 60-70% of the value of large U.S. corporations is attributable to intangible assets. Even more important is the recent finding by a UN study group that found “a positive correlation” between stronger IP legislation and subsequent growth of the economy. Of course, correlation is not causation, but the observation is an important one. Clearly, the establishment of a legal framework to protect intellectual property is an important step in the maturation of the younger, Pacific Rim economies, as well as the countries of the former Soviet Union.

In point of fact, intellectual property rights are really a simple form of temporary monopoly that is enforced by the government, and subject to the legal proceedings of that government’s judicial system. The more mature and ingrained this outlook is in a nation and economy, the better.

Types of goods
Rights in intellectual property are normally limited to what are called “non-rival” goods, meaning goods that are used by a number of people at the same time, where use by one person neither prevents nor excludes use by someone else. On the other hand, “rival” goods, such as clothing, are used by just one person at a time. By way of analogy, any number of people can use a math formula or a cake recipe simultaneously. This explains some of the objections to the term “intellectual property,” as some legal experts assert that the term "property" can only be applied to rival goods, or that it is not possible to "own" property of any other kind.

Because “non-rival” goods can be copied, for instance, by many people at the same time – in economic terms, “produced at zero marginal cost” – creators have no incentive at all to develop such works. Of course, monopolies also have their own inefficiencies, as some producers will raise prices and reduce production in ways that are not “maximized” for social benefit.

The intellectual property rights system, then, is best thought of as a trade-off, one meant to balance societal interests with monopoly power in the creation of non-rival good. In other words, the developing IP structures encourage research, development and creation of new things, new products, new ideas, and new processes.

Making these trade-offs and strategizing IP issues, as an industry or even a nation, is a daunting task. The best hope we have is that a string of judicial decisions and business actions will chart a course through the confusion. In the meantime, it is important to remember that the existing framework is not set in stone, and is subject to changes both subtle and dramatic. The best advice for those working in this milieu is to have a good lawyer, stay on top of the IP court decisions and document everything – research, rulings, recommendations and, finally, a comprehensive listing of IP rights as they continue to take shape in the U.S. and around the world.

Trade Secrets, Copyrights And Trademarks

Many professionals have a lot of questions about protecting their materials and name. What they are concerned with is what we call ‘intellectual property’. Intellectual property can represent 70% of a company’s value, so it is important to not only understand it, but to also understand how best to protect it. This article will address what intellectual property is, explain each in a bit of detail, discuss how the Internet has impacted it, and how to protect it.

Intellectual Property – what it is
The definition of intellectual property is basically any knowledge, information or ideas that is important to a business for competitive success. Examples include a business name, a logo, a graphic, a tag line, advertising materials, product literature, software, an invention. Even such things as customer lists or vendor lists can be considered intellectual property.

Trade Secrets – keep it hidden!
A trade secret is any information, including a formula, pattern, compilation, program, device, method, technique, or process that provides a business with a competitive advantage that others don’t have access to. To qualify as a trade secret, the company/owner must take reasonable efforts to keep it secret. Sales and marketing plans can be considered trade secrets, as are computer files sales data. Probably the best example of a trade secret is the formula for Coca-Cola. For health and fitness professionals, a trade secret might be a particular bit of survey information that has helped them discover a need in the market that no one else has discovered, yet. This information must not be generally known to be considered a trade secret. However, once the professional has taken steps to market to that audience, as a result of the survey, it will no longer be a secret.

Another example of a trade secret might be a particular program for clients that are different than what others have ever created. It may be a particular workout, or a particular eating plan; some type of program or method that is unique and not generally known or discoverable by others.

Copyrights – do you really need them?
Of more importance to health and fitness professionals is the law of copyrights. Many clients ask me about this when they are creating handouts and the answer depends on how much you feel your materials need protection. Copyright law applies to pieces of work such as books, works of art, software, websites, musical recordings, magazines, plays, dramatic performances, and movies. An easy way to informally protect works is to include the “©” symbol, followed by the name of the author/publisher, the year of publication. You can also include the phrase, “All rights reserved”.

Copyright protection gives the original author exclusive legal rights to economic benefits from the work. They can reproduce copies, develop derivative works based on the original product, such as workshops, for example, distribute copies, perform it publicly, and display it publicly. Of most importance is that copyrighting the work prevents others from copying, distributing, performing or displaying the work without permission from the author/publisher.

Health and fitness professionals often ask if they can legally copy materials to give to their clients, and the answer is, “it depends”. Many educational materials will include the statement that they can be reproduced for educational purposes, and other materials will include a statement that as long as original author and contact information is included, materials can be copied and distributed. If a person is unsure, they should contact the author or publisher.

If you have educational material, should you go through the process of formally copyrighting it? Well, to decide this, you need to first determine if it qualifies. There are three basic requirements for copyright protection: 1) the work must be fixed in a tangible medium (written on paper, on a computer disc, or recorded on tape), 2) the work must be original, and 3) it must contain some bit of creativity. Legally, once a work has been fixed onto a tangible medium, it is copyrighted; a notice on the material is not even required! However, if the author wanted to prove infringement in court in the US, the owner of the copyright must have it registered with the Register of Copyrights, in Washington, DC. The process is simple and very affordable, so the author just needs to determine to what extent they need to protect their work.

Examples where just listing the copyright protection should be enough are educational handouts or any other similar materials for the education of clients. If a professional has created a particular of work that he would like to expand into workshops, or is something he would like to eventually license, it would probably be worthwhile to formally copyright. If you are unsure if your work should be copyrighted, it would be wise to consult with a copyright attorney, but it’s not necessary to use an attorney to apply for copyright protection. Books are definitely copyrighted, however, and the most recent court ruling on royalties due authors who publish their works on the internet indicates that authors who wish to be paid for such works should register, also.

Protecting your name with a trademark
Trademark protection is a huge business! Consider companies such as Nike with their ‘trademark’ swoosh, or the golden arches of McDonalds. A trademark is any word, phrase, name, symbol, sound or device that identifies and distinguishes one company’s products or services from another.

When you consider trademark protection, you can trademark just in your state or federally. It is generally recommended to go for the federal trademark, for wide protection, but then also file for state trademark while you wait through the federal process. Not all trademarks are eligible for federal registration, however, such as descriptive marks. If you are starting a company and have created a unique name that you would like to protect for years to come, it may be a strategy you wish to take. However, the process of obtaining a federal trademark can be complex and it is recommended to use an experienced attorney for the process. Examples of what you might want to trademark could also include a particular logo, tag line or phrase.

The internet
On the internet, domain names, which are website addresses, are given on a first-come, first-served basis. As a result, some people started to buy up domains of names that were trademarked by large companies and then tried to sell those domains to the companies for large amounts of money. There was no protection of trademarked names when it came to domain names. Anyone could use the domain name of Ford.com, for instance.

As a result, Congress passed the Anticybersquatting Consumer Protection Act of 1999 to make it illegal for a person to register a domain name, with bad-faith intent to profit from the name, if the domain is identical or very similar to a distinctive trademark or identical or similar to a famous trademark.

In order to properly protect your intellectual property, you should register or take specific steps to protect it. It is ultimately up to you to know the law when concerned about protecting what you created. When deciding on how far to take your protection, be sure to consider to what extent this property is important to supporting your revenue and competitive advantage. Sometimes it may not be important, such as a simple informational handout, but other times it may be extremely important, such as writing a book and planning to create workshops and programs around that book. As you develop your business, it is important to understand the role that your creation will play in the growth of that business.

Source :Isnare

More IP Definations

Intellectual property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.

Intellectual property is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs.

Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs

Source : WIPO

What Intellectual Property?

IP includes patents, trademarks, and copyrights. A patent provides an exclusive right to an invention. A trademark provides an exclusive right to an indication of source of a product. A copyright provides an exclusive right to an original work. A service mark provides an exclusive right to a service or origin of a service.

United States copyrights accrue automatically, but a work must be registered with the United States Copyright Office to perfect the federal copyright. Trademark rights can also accrue without a federal registration, but those rights are weaker, and a federal registration is preferred in almost all situations.

United States patents and trademarks are obtained by filing an application in the United States Patent and Trademark Office (USPTO). An examiner in the USPTO examines the application for compliance with all statutory requirements. The USPTO issues complying applications and rejects non-complying applications. Often, a non-complying application can be amended, thereby placing it in condition for allowance. It is helpful to discuss possible amendments with the examiner in charge of the application prior to filing an amendment. Discussions with the examiner on how best to amend an application increase the chance that the amendment will result in allowance.

Trademarks and service marks identify your business to the purchaser of your product or service. Your mark allows a consumer to come back to you if he or she likes what you provide. If you have a trademark right, using your trademark prevents someone else from using a similar mark that is likely to confuse the public into buying goods from them instead of you.

Patents provide a limited monopoly on your company’s product or process. Monopoly translates into high profit margins due to exclusion of competition. Patents can be obtained on any invention that complies with the statutory requirements, which are that the invention is useful, novel, and non-obvious. The prevailing case law allows patents on just about anything, for example, it allows patents on computer implemented methods of calculating useful results, and on computer implemented methods of doing business.

Obtaining United States patents and trademark rights is expensive, primarily due to the amount of high hourly rate attorney time required to prepare an application and guide it through the USPTO. For patents, part of that cost can be deferred by initially filing a relatively simple provisional patent application.

The filing date of a provisional application is prima facie (evidence legally sufficient to establish a fact unless subsequently disproved by additional evidence) proof of the date of invention. A provisional patent application protects for one year the right to pursue patent protection on the novel aspects of a product or process at a very low cost. However, provisional applications do not issue into patents. They simply preserve the filing date for an invention for up to one year. Within one year of the filing date of the provisional application, it must be followed by filing a more formal US application and any foreign applications in foreign countries in which protection is sought. If the formal applications are not filed, the benefit of the early filing date of the provisional application is lost.

Who Owns Your Invention?

Who owns your invention? Who owns your employee’s invention? Invention ownership disputes occur all too frequently. However, invention ownership disputes are easily avoidable with the proper foresight and knowledge.

Our legal system presumes that the inventor is the owner of the exclusive rights in his or her invention. How then, does someone other than the inventor obtain the rights to the inventor’s invention? The answer to that question is by an assignment. The assignment can be an express assignment, which is typically a written document evidencing a contract between the inventor and the assignee in which the inventor sells the rights to the invention to the assignee. However, that type of assignment is not what leads to ownership disputes. Ownership disputes occur when there is no express assignment and both the inventor and his or her employer think that they own the invention. This is because the presumption that the inventor owns the invention is incorrect in certain situations, even without an express assignment.

An employer of one who is "hired to invent" owns the rights to the inventor’s inventions. The Supreme Court came to that conclusion in the Standard Parts Co. v. Peck case in 1924. However, that is the extreme case, since the vast majority of employees are not employed to invent. What about an employee employed to design or construct, such as an engineer? An employee employed in a field of endeavor in order to design or construct is not equivalent to an employee employed for the purpose of invention. That was the conclusion reached by the Supreme Court

in U.S. v. Dubilier Condenser Corp. in 1933. However, that conclusion leaves open the question of who owns the invention made by the engineer. The outcome in each ownership case depends on the relationship between the employee, the employer, and the circumstances of the invention.

Even if it turns out that the employee owns his or her invention, if the employee used the employer’s materials or equipment during working hours to make the invention, the law grants the employer a nonexclusive license to the invention. That has been the law ever since the Supreme Court Lane & Bodley Co. v. Locke case in 1893.

It should be apparent that the best way to avoid an ownership dispute is to reduce to a written contract between the employee and the employer who owns the rights to any inventions made by the employee, and that agreement should be defined as early as possible in the employee employer relationship.

Source : ArticleBase