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Lee Weinstein
No matter whether you are an employee, an employer, a small business owner, and entrepreneur, an artist, or a corporate executive, it pays to know a few things about intellectual property -- the stuff we know, think up, learn, or create, that is valuable to us or could be valuable to other people. This list is designed to give an overview of different types of intellectual property, how they can be protected, why you will want to know, and why the system works the way it does.
Intellectual property is created or discovered. It includes things you write, invent, design, discover, speak, sing, sculpt, draw, learn over time, etc. Some examples of intellectual property are: a political campaign plan, a list of 10000 people who play golf, the McDonald's golden arches, the process for making Prozac, the styling for next year's Cadilacs, the recipe for Coca Cola, the design for the Pentium computer chip, and the theme music to a James Bond movie. You might create intellectual property yourself, or you might purchase it or hire someone to create it. Any way you slice it, intellectual property is something that cost someone some effort to bring into existence, and it often isn't something the creator wants to give away for free. The creation of intellectual property is a big part of what we call "progress" in the world. To protect those who take the time and the risks to create these things that move the world forward, laws have evolved to protect different kinds of intellectual property in different ways. Different forms of protection for intellectual property include patents, trademarks, copyrights, and trade secrets.
There are several types of patents. The two most common types of patents are utility patents and design patents. Under the present laws, most utility and design patents last 20 years from the date of application (if they issue). You don't get your patent automatically just by applying for it. There are certain "tests" your patent application must pass in order for your patent to issue. Whether your patent application passes these tests is decided by a government official called a patent examiner. This can take many exchanges between you (or your patent attorney or agent) and the patent office. Your legal patent rights to the intellectual property you are patenting don't start until your patent issues, which usually takes between six months and two years from the date of application. There are a myriad of options when pursuing patents. The short-term expenses associated with these options can range from a few hundred dollars, well up into the tens of thousands of dollars. Having a patent consultant or coach to advise you on these options can be invaluable. Often a patent consultant or coach can outline a strategy that will work well for your business, and avoid some or all of the high attorney's fees that are often associated with applying for a patent. An invention does not need to be a work of genius to be patentable. The patent system was designed to protect people's hard work and creativity. It was designed to encourage businesses to undertake new developments, even when these developments require the risky investment of time and money. The patent office is a branch of the United States Department of Commerce. Patents exist to promote the growth of technology and business, and keep our country's economy strong. Utility patents cover what many of us are used to thinking of as "inventions", such as the incandescent light bulb, the zipper, the stapler, the pop-top can, the twin-blade razor, or the process for making a drug. Utility patents can also patent an improvement to something that already exists, such as halogen light bulbs, which are an improvement over regular light bulbs. Design patents usually protect the artistic form of something functional, such as a child's sled designed to look like a caterpillar. While the sled is not a new invention, the form looking like a caterpillar may be attractive to kids, and may let you sell more sleds, thus being an innovation worthy of protection.
Trademarks are far simpler than patents. Trademarks are used to protect intellectual property such as brand names, logos, etc. You don't have to apply to anyone to have trademark rights. Something can be your legal trademark as soon as you declare that it is (there are specific legal ways to make this declaration), provided a few conditions are met. The first condition is that no one else is using the trademark for a similar use. The second condition is that the trademark is not a descriptive phrase that people might use normally, such as "soft facial tissue". The third requirement is that you USE the trademark (for instance, by printing it on things you sell, or in your advertising literature). Printing "TM" as a superscript or in parenthesis next to the thing you are trademarking is a sufficient legal declaration to give you your rights, providing you have met the listed conditions. You may also want to register your trademark. This puts your trademark into a public record, which will show up to anyone who tries to register such a trade mark later without knowing about yours. This is a useful way of putting people on notice of your rights. Trademarks don't expire in a set time like patents, but if you stop using your trademark, you can loose your rights to it.
Copyrights are even simpler than trademarks. You can copyright anything you write (like a book, a newspaper article, a marketing report, or a song), simply by stating (again in a specific way, and usually at the beginning or end of the material) that you reserve the copyright to the material. You can also copyright photographs, artworks, drawings, sculptures, etc. When you declare your copyright, you need to say who the copyright belongs to, and it is also customary to include the year of the copyright . A typical copyright notice might be "Copyright 1997 by Lee Weinstein, All rights Reserved". A more detailed copyright notice appears at the end of this Top Ten list.
Trade secrets may appear to be even simpler than copyrights. To keep something a trade secret, you either don't tell anyone, or you require everyone who you do tell to sign a document acknowledging that the intellectual property they received is a trade secret, and promising to keep it secret. A great example of a trade secret is the recipe for Coca Cola. If the recipe were patented, then when the patent expired, everyone would have the right and the know-how to make a soda that was exactly identical (though under different names, since the name Coca Cola is trade marked). Kept as a trade secret, the recipe has been much more valuable, but keeping a secret that valuable may not be simple. Keeping patentable intellectual property as a trade secret can be risky. If someone else independently invents the invention and does patent it, the original inventor may loose the right to make his own invention! The law works this way in order to promote things being disclosed so they can eventually be used by all.
Does this mean that your rights are offensive to others? Well, maybe sometimes. What this really means is that having reserved your rights with a patent, trademark, copyright, or trade secret gives you the right to go on the offensive against anyone who infringes on your rights. The bad news is, it's up to YOU to do this. There are no "Intellectual Property Police" running around looking for people who plagiarize your book, bootleg your songs, steal your customer lists, and copy your logo. You (or your attorney or representative), have to contact infringers, present your demands, negotiate, or take them to court, etc. The other bad news is that if you don't follow the rules to properly protect your intellectual property, you run the risk of loosing your rights (or, equivalently, giving them away). Having a coach to keep your awareness up in this arena can make a big difference and save a lot of headaches.
There are several professionals who can be of great assistance in giving you or your business a strong intellectual property position: patent attorneys, patent agents, and intellectual property consultants and coaches. Patent attorneys (also called intellectual property attorneys) are a special type of attorney who have an engineering or science background as well as a law background. They are legally allowed to represent you in your interactions with the United States Patent and Trademark Office. A word of caution, though: the vast majority of patents are not well written. Great patent attorneys are as rare as great composers or great scientists. The writing of the patent claims themselves has a lot of art and creativity to it. It is not simply a matter of knowledge. Patent agents have similar training and backgrounds to patent attorneys, only they don't have a law degree. A great patent agent can be just as good as a great patent attorney, and just as hard to find. Intellectual property consultants can be of tremendous assistance in saving money and getting a higher quality patent. They are often experts in certain fields and can work with the inventor to economically craft a great draft patent application. A patent attorney or agent can then go over the application to make sure all the complex regulations of the patent office have been followed, and perhaps provide legal pointers. Individuals and businesses can often get a much better patent for their money by having the inventor get involved in the patent application writing process, and having the inventor be responsible that the claims are not easy to get around once the patent application is written. Usually the person who invented something can be one of the first to see the way to get around the way his invention has been protected. This insight enables the patent attorney, agent, or intellectual property consultant to keep making the claims better as they or the inventor find flaws, before the patent application is filed.
under the new laws, there are two types of patent applications: Provisional Patent Applications (PPA's), and Regular Patent Applications (RPA's). PPA's don't count as real patent applications unless an RPA is filed within a year of the PPA. The great thing about PPA's is that they are much cheaper and require much less rigor to file than and RPA, and they buy you TIME. For instance, if you invent a new feature that everyone would love to have on their compact disc player, but no one has thought of, you might spend the $150 it would cost you to submit the PPA (plus your time, and probably some time of a consultant or coach). Then you have a year to go out and sell your invention to someone like Sony, or get investors and develop it further yourself. By the end of a year from when you filed the PPA, you, or the person who bought the rights from you, must file the RPA (which is more time-consuming and expensive). The other advantage of filing a PPA first is that it can add a year to the time your patent will last, if it issues.
There are two ways to look at Employee Intellectual Property Agreements - from the side of the employer and from the side of the employee. Employers usually want to make sure that the intellectual property developed with their resources belongs to them, so it is common for employers to have employees sign an intellectual property agreement as a condition of employment. A writer working for hire may sign away his or her copyrights on a particular job. An engineer may sign away rights to the things he or she invents on the job or in the field of business that the employer is engaged in. At first it may seem like the employer would want the employee to sign away any an all rights to all intellectual property created, but there are several problems with this. First, it is likely that in the event of a court challenge, some or all of such an aggressive contract would not be upheld by the court. Second, many progressive employers (such as many universities, and high-tech companies like Hewlett Packard) have found that they can attract and keep the most creative employees by letting them have some of the rights to their own creations. There is tremendous variety in Intellectual Property Contracts. Examples include the complex deals that some musical performers work out with record companies. Intellectual property coaches, consultants, and attorneys can help employers and employees both make sure they are getting a "good deal".
Sometimes it becomes desirable to disclose intellectual property (that you are currently keeping secret) to an "outsider". For example, you might want to show some of your "good stuff" to someone considering investing in your business. When you do this, you will want to protect your rights by having person you are showing the secrets to sign a Non-Disclosure Agreement. Like many legal documents, such agreements range from simple to complex. The savvy businessperson who has seen a number of such agreements may be comfortable writing his or her own agreement, but it is often prudent to consult an intellectual property coach, consultant, or attorney to make sure that everything relevant is covered. Templates for such agreements are available. Often a suitable document can be generated by simple adjustments to such a template.
This piece was originally submitted by Lee Weinstein, Inventor, Intellectual Property Consultant and Coach, who can be reached at RedDog@World.std.com. Lee Weinstein wants you to know: Lee has worked on Intellectual Property for companies and institutions such as Schlumberger, Product Genesis, Jet Propulsion Laboratories, MIT, Lunar Design, and BSG Laboratories, as well as venture capitalists, and individuals.
This Top Ten list Copyright 1997 by Lee Weinstein, Intellectual Property Consultant and Coach, 135 Hudson St., Somerville, MA: RedDog@World.std.com (617)628-2458. Right to freely duplicate distribute this Top Ten list is granted, provided the list and this notice paragraph are included, in their entirety.
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