In simple terms, intellectual property is a product of the human intellect that has
commercial value. Intellectual property encompasses a wide range of creations—from fiction, poetry, songs, designs, and artwork to ads, product names, mechanical inventions, processes, chemical formulas, machines, and software.
The commercial value of intellectual property comes from the ability of its owner to control its use. If the owner could not legally require payment in exchange for use, ownership of the intellectual property would have intellectual worth but no commercial value.
EXAMPLE 1: Jenice writes a novel about romance in cyberspace. As the author/owner, she has the legal right to prevent others from reprinting the book, making a movie, or creating a television miniseries based on the novel. It is this right that can produce revenue for Jenice: She can sell publishing rights to a publisher, movie rights to a movie producer, and television rights to a network in exchange for royalties based on book, movie, and TV proceeds.
EXAMPLE 2: Tony invents a process for inserting modified genes into cancer cells. He applies for and receives a patent, a monopoly awarded by the federal government that allows Tony to require anyone who wants to use the process to pay him a negotiated license fee. If no one wants to use the process, Tony won’t make any money (unless he uses it in his own gene
therapy clinic).
Intellectual property law is an umbrella term for all the statutes, government regulations, and court decisions that together determine who owns intellectual property and what rights go along with that ownership. In addition, intellectual property law specifies:
• the conditions under which intellectual property rights may be sold or
loaned (licensed) to others for specific purposes
• how to settle contract disputes that arise from marketing intellectual
property, and
• how to take advantage of government procedures and programs that
establish or enhance protection of intellectual property rights.
Intellectual property law primarily offers protection to the owner of intellectual property by giving the owner the right to file a lawsuit asking a court to enforce whatever rights are being transgressed. As a result, some experts describe intellectual property laws as “affirmative rights” rather than as “protection.” Noted patent attorney and author David Pressman suggests thinking of intellectual property laws as tools that can be used when needed, but not as any kind of defensive shield. In other words, intellectual property laws won’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. For example, upon request of the copyright owner, a court will halt unauthorized copying of material protected by the copyright. But if the copyright owner does not sue the copier, no action will be taken and the copier will get away with this illegal behavior.
Showing posts with label intellectual. Show all posts
Showing posts with label intellectual. Show all posts
Intersection of intellectual property laws
Although each category of intellectual property law is aimed at a particular type of
intellectual property, trade secret, copyright, patent, and trademark laws occasionally
intersect with each other with respect to a particular intellectual property
item. Some common examples of this are as follows:
• Trade secret and copyright. It is possible to maintain a work of expression
as a trade secret and still have it protected by copyright up until the time
that it is published—that is, distributed to the public on an unrestricted
basis. This is because the nature of trade secret law arises from the actions
taken by the owner of the work to keep the work secret for the purpose of
getting a jump on competitors, while copyright law automatically applies
to any work of expression the instant it becomes fixed in a tangible form.The best example of an intellectual property item that is usually protected
by both copyright and trade secret law is the written code underlying most
computer software (called source code).
• 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 (PTO) treats applications as confidential until they are
published. Unless the applicant files a Nonpublication Request 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. This publication effectively
ends trade secret protection. If the applicant will not be filing abroad,
the trade secret information in the patent application is kept confidential
and is only published if the PTO grants the patent. At that point, the applicant
gives up trade secret rights in order to obtain patent rights. If the applicant
is not filing abroad and the patent application is rejected, the trade
secret will remain intact and the competition will not know about the invention.
• Copyright and trademark. These laws may apply to the same item. For
instance, 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 trade dress (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 area of product configuration. In short, when it
comes to a product design—say, jewelry or a toy—the creator may, at least
theoretically, be able to invoke any or all of these three approaches to
intellectual property protection. (The reason we use the word “theoretically”
is that courts always are trying to distinguish among the different forms of
intellectual property and are prone to restrict the contexts in which they
overlap.)
EXAMPLE: A design patent can issue on the new, unobvious, nonfunctional
design of an article of manufacture—for example, stylistic ornamentation
added to a pair of eyeglasses. Trademark law may be used to protect the
appearance of the ornamentation if it is intended to be—and is—used to distinguish
the particular brand of eyeglasses in the marketplace. And copyright
law may also be used to protect certain expressive aspects of the design.
• The Internet. The Internet has proven to be a flashpoint for those enforcing
trade secret, copyright, trademark, and patent rights. A simple Web page
may give rise to numerous overlapping issues. Linking—the practice of
connecting Web pages—has been the subject of copyright, trade secret,
and trademark infringement cases. Downloading files has triggered copyright
and trade secret lawsuits. The methods used in creating websites,
maintaining Web business, or accessing the Internet have led to patent and
trade secret battles. Fortunately, many of the early issues about Internet use
have been settled, and some concerns about overlapping intellectual property
law have been resolved. But stay tuned—new developments on the
Web continue to cause litigation and turf wars.
intellectual property, trade secret, copyright, patent, and trademark laws occasionally
intersect with each other with respect to a particular intellectual property
item. Some common examples of this are as follows:
• Trade secret and copyright. It is possible to maintain a work of expression
as a trade secret and still have it protected by copyright up until the time
that it is published—that is, distributed to the public on an unrestricted
basis. This is because the nature of trade secret law arises from the actions
taken by the owner of the work to keep the work secret for the purpose of
getting a jump on competitors, while copyright law automatically applies
to any work of expression the instant it becomes fixed in a tangible form.The best example of an intellectual property item that is usually protected
by both copyright and trade secret law is the written code underlying most
computer software (called source code).
• 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 (PTO) treats applications as confidential until they are
published. Unless the applicant files a Nonpublication Request 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. This publication effectively
ends trade secret protection. If the applicant will not be filing abroad,
the trade secret information in the patent application is kept confidential
and is only published if the PTO grants the patent. At that point, the applicant
gives up trade secret rights in order to obtain patent rights. If the applicant
is not filing abroad and the patent application is rejected, the trade
secret will remain intact and the competition will not know about the invention.
• Copyright and trademark. These laws may apply to the same item. For
instance, 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 trade dress (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 area of product configuration. In short, when it
comes to a product design—say, jewelry or a toy—the creator may, at least
theoretically, be able to invoke any or all of these three approaches to
intellectual property protection. (The reason we use the word “theoretically”
is that courts always are trying to distinguish among the different forms of
intellectual property and are prone to restrict the contexts in which they
overlap.)
EXAMPLE: A design patent can issue on the new, unobvious, nonfunctional
design of an article of manufacture—for example, stylistic ornamentation
added to a pair of eyeglasses. Trademark law may be used to protect the
appearance of the ornamentation if it is intended to be—and is—used to distinguish
the particular brand of eyeglasses in the marketplace. And copyright
law may also be used to protect certain expressive aspects of the design.
• The Internet. The Internet has proven to be a flashpoint for those enforcing
trade secret, copyright, trademark, and patent rights. A simple Web page
may give rise to numerous overlapping issues. Linking—the practice of
connecting Web pages—has been the subject of copyright, trade secret,
and trademark infringement cases. Downloading files has triggered copyright
and trade secret lawsuits. The methods used in creating websites,
maintaining Web business, or accessing the Internet have led to patent and
trade secret battles. Fortunately, many of the early issues about Internet use
have been settled, and some concerns about overlapping intellectual property
law have been resolved. But stay tuned—new developments on the
Web continue to cause litigation and turf wars.
Subscribe to:
Posts (Atom)
