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Brief Overview of

Intellectual Property Rights
in the United States

People are often confused about Patents, Trademarks and Copyrights. This confusion may result in a failure to consider the importance of these tools in business development. Yet, these intellectual property rights become more and more important as businesses move into high technology areas. Intellectual property issues also often arise in unexpected situations, for example, in mergers and acquisitions, in antitrust disputes, in employment contracts, in joint venture agreements, and in bankruptcy. The intellectual property (patents, trademarks, copyrights, and trade secrets) of a business engaged in technology may be its most valuable asset. Below is a brief description of each type of intellectual property right.

Trademarks

A trademark is the easiest concept to understand. It is a symbol (words, pictures, and sounds, can all be "trademarks") which is used in selling goods or services (with services it is sometimes called a servicemark) to indicate the source of the goods or services. For example, Cadillac, when used in the sale of automobiles, indicates that General Motors is the "Source" (e.g., manufacturer) of the automobile. Initially, trademark rights are acquired by use. General Motors acquired the exclusive right to use the trademark Cadillac on automobiles by being the first to use it and by advertising it as their mark. Having acquired trademark rights by using the trademark in selling goods or services, the trademark owner can legally stop anyone from using a confusingly similar trademark on similar goods. A trademark may be registered in the U.S. Patent and Trademark Office. Registration is notice to all that the registrant is using the trademark and it creates the presumption that the registrant has the exclusive right to use the trademark.

Patents

Patents, on the other hand, deal with inventions. Patent rights are granted by the government and one must file an application for a patent. This is not a simple form like an application for a passport, but a very technical document which should only be written by a qualified Patent Attorney or Registered Patent Agent. The theory behind Patents is that the government will give you a limited monopoly in exchange for your sharing your knowledge with the scientific community. A patent applicant must disclose his or her invention with enough particularity to enable one of ordinary skill, in the field to which it pertains, to make and use it. If the invention is "novel" and "unobvious," the federal government will grant a patent which expires in 17 years and cannot be renewed. A patent application must be filed within one year after the invention is made public.

Copyrights

Copyrights are perhaps the most bizarre of the intellectual property rights. Generally, copyrights relate to artistic endeavors, such as novels, movies, plays, sculpture, paintings, photographs, musical compositions, etc. Computer programs have been protected by copyright law on the theory that they are written works, kind of like a novel or a play. The display screens produced by computer programs have been protected by copyright law on the theory that they are artworks like photographs or paintings. Generally, the law of copyright gives the owner the exclusive right to make copies, i.e. to stop others from making copies. It can get very confusing when you consider such strange concepts as derivative works, fair use, site licenses, etc. But the basic idea is related to making copies of an artistic work. A copyright is obtained as soon as an original work is fixed in a tangible form. Although no longer required, published copies of the work should bear the copyright notice, e.g. "Copyright 1989 Thomas A. Gallagher". Works can be "registered" in the Library of Congress for a nominal fee and such registration affords the author certain procedural benefits, but the right of "copyright" is not obtained by registration.

Trade Secrets

Trade secrets are just what the words imply. Patents and Copyrights are public information even though they are private property. Trade secrets, on the other hand, are kept secret by contract. It is often said that the formula to Coca-Cola® is a trade secret. Trade secrets are an important part of protecting technological competitiveness where Patents and Copyrights are insufficient. For example, the 17 year time limit on Patent protection may not be sufficient. Usually, the decision is made to keep something a trade secret when it is known that disclosure of the information would allow others to benefit commercially. Typical trade secrets include customer lists, secret manufacturing processes and chemical formulae which might not qualify for Patent Protection.



©1990
THOMAS A. GALLAGHER, ESQ.
Registered Patent Attorney
30-605 NEWPORT PARKWAY JERSEY CITY NJ 07310
TELEPHONE: 201-653-4269 FAX: 201-653-4364
TELEX: 6504023049 MCI MAIL: 402-3049
The above is not intended to be legal advice, but is merely informative of the copyright laws. Anyone interested in obtaining information about copyright protection should seek the advice of a qualified attorney.

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