Intellectual Property, unlike physical property, often does not have form shape or substance. It is most often an idea, concept or design. Just as people have the right to protect their physical possessions, houses and cars, so also intellectually or artistically gifted individuals have the right to protect their intellectual creations.
In order to safegaurd such inventions, the best course of action is to approach the country’s patent and trademark office and get the right to exclude other people from making, using, or selling the same invention.
All countries who wish to foster economic growth, technological innovation,invite investment and foster creativity legislate to protect unique creative expression, invention, literary and artistic work, commercial symbols, images, names, and designs. For instance, till a few years ago India was losing its brightest talents who immigrated to foreign countries where their intellectual property was protected.
Two Categories of Intellectual Property
There are two categories of intellectual property:
- Industrial property, including inventions (patents), trademarks, industrial designs, and geographic indications of source.
- Copyright, including literary and artistic works such as novels, poems and plays, films and musical works. Artistic works such as drawings, paintings, photographs and sculptures, and architectural designs.
Performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs are entitled rights related to copyright.
Patents are crucial to business inventions. To take advantage of a new product or process for competitive advantage it becomes necessary for an organization to obtain a patent for protection. The holder of a patent has the right to stop others from imitating, using or selling his invention for a certain number of years.
Types of patents
- Utility patents: are granted to those who invent or discover any new and useful process, machine, manufacture, or compositions of matter, and also to any new and unique improvements on them.
"Process” is referred to as the technical process in the patent statute.
The term "manufacture" refers to all manufactured articles. "Composition of matter" refers to chemical compositions.
Read Guide to Patenting for more detailed information
- Design patents: are issued for new and unique designs of an article of manufacture.
Considerations while granting a patent
- An invention is not considered for patenting if it is already known or is in use by others in any country.
- A Patent will also not be granted to any invention which has been described in a printed publication in any country before it was invented by the patent applicant.
- A patent is also not granted if an invention has been in public use or on sale for more than a year before the patent application is filed.
This would apply even if the patent applicant was the first to invent it and is the person who has described it in the publication or been using or selling the invention. The invention, in other words, must be kept relatively secret prior to applying for a patent. An inventor cannot put his invention on the market for over a year and then seek patent protection for it.
A copyright provides protection for original works of authorship, fixed in a tangible medium of expression, including literary, musical, and dramatic works, as well as photographs, audio and visual recordings, software, and other intellectual works. Copyright protection is available immediately on completion of the work and the author is free to begin using the copyright symbol immediately. By this process he informs others that he intends to exercise control over the production, distribution, display, and or performance of the work.
The owner of a copyright has the exclusive right to control the reproduction, distribution, performance, and display of the work, and the preparation of derivative works. Original ownership of the copyright is granted to the author of the work. But if the author creates the work in the scope and course of employment, then under the "work for hire" doctrine the employer is considered to be the author.
Ownership of a copyright can be transferred. A transfer of the owner's exclusive rights must be made in writing. A transfer of less than the owner's exclusive rights does not need to be in writing.
A trademark gives protection to a product by preventing other businesses from using the same name for other products. It, thereby, also protects the consumer who would otherwise have faced the confusion of choosing from a large number of similar products or brands. For service business, a service mark serves the purpose of protection.
Filing for trademark is important for enforcement purposes. It begins with a trademark search. A local attorney of intellectual property can help with a trademark search and application.
There are two ways to establish the right to register a trademark:
- Begin using the mark as the first party to use a trademark in commerce has the right to register the mark.
- File an application of intent to use the mark in commerce with the Patent and Trademark Office.
- If two different parties are using the same trademark and neither one has registered the mark, it will be up to a court to decide who has the right to use the trademark. Registration is not required in order to use a trademark, but it may be preferable since it serves to confirm that the party is entitled to use the mark.
Right to use trademark
- An entity has the right to use a trademark for an indefinite period, as long as the owner continues to use the trademark.
- Trademark registration lasts for a period of 10 years, but can be renewed indefinitely.
- The first time a trademark is registered, its registration must be preserved between the fifth and sixth year of registration. This is accomplished by filing an affidavit that sets forth information required by the Patent and Trademark office. If the registration is not preserved by this method, it will lapse and be cancelled.
- While developing a trademark the following factors are to be taken into account:
- A trademark should be unique.
- If the trademark applied for is similar to another trademark it will not be allowed, even if the other trademark is for a completely different product.
- Generic terms should be avoided because they cannot be trademarked.
- A trademark should serve to set apart your product and distinguish it from other similar products.
Find details in A Guide to Trademarks and the Trademark Process
- WHAT IS INTELLECTUAL PROPERTY?
- Intellectual Property
- World Intellectual Property Organization
- How and Why to Protect Your Intellectual Property