Starting and Managing Your Business 101: Protecting Your Company’s Intellectual Property

By: Richard E. Korb.[1]

In the formation of a business, it is important to consider the protection of your intellectual property. What is “Intellectual Property” (“IP”) ? Intellectual property (IP) is an intangible creation of the human mind, usually expressed or translated into a tangible form that is assigned certain rights of property. This term includes our inventions, artistic or literary works, nomenclature, pictures, an author’s copyright on a book, a distinctive logo design, design elements of a website, etc.

Intellectual property law covers the protection of copyrights, patents, trademarks, and trade secrets. Therefore, if you believe that your business entity is genuinely an original idea, one of the first major steps is to get legal protection from the unauthorized use of such originality. The value of intellectual property is valuable to an individual because it represents ownership and the exclusive rights to use, manufacture, reproduce, or promote a unique creation/idea.

Intellectual Property can be generally split into two categories – namely, industrial property and copyright property. The former takes on a range of forms, which may include patents to protect inventions and industrial designs (aesthetic creations determining the appearance of industrial products). In addition, it also covers trademarks, commercial names, and protection against unfair competition. The latter subsumes artistic creations. For example, poems, novels, music paintings, and cinematographic works can be copyrighted.

So why do we want to promote and protect our intellectual property? First and foremost, we, as humans, tend to pride our capacity to produce originality. This leads to the notion that intellectual property rights honor creativity and human endeavor, fueling economic growth. For instance, a multi-million dollar recording studio exporting world-renown music (bringing happiness to people globally) would not exist without copyright protection.

What is a “Patent?” This is an exclusive right granted for an invention. Generally, protection is granted for about 20 years. Patents are necessary in that they provide incentives for individuals by acknowledging their creativity and offering the possibility of material reward for marketable inventions. This protection entails that their work cannot be commercially used, distributed or sold without the patent owner’s authorization. And as a patent owner, he/she has the right to decide who may or may not use the patented idea while it is protected. It is important to note that once a patent expires, protection ends and the invention/idea enters the public domain.

How is a patent granted? Step one is filing for a patent application. The content of the application contains the title, background, and description of the invention using clear language and succinct detail. The qualities that qualify the invention to be protected include novelty (a unique characteristic that is not acknowledged in its specific technical field), an inventive step (something that can not be deduced by a person with average knowledge of the technical field), and, overall, must be accepted as “patentable” under law.

“Trademarks” are another intellectual property under the industrial category. What is a trademark? According to the United States Patent and Trademark Office, a trademark “is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.” Having protection for your trademark ensures that you own the exclusive right to use it in order to identify the goods and services you provide. The protection period varies, but a trademark can be indefinitely renewed upon payment of the corresponding fees. This protection is legally enforced by the courts that control trademark infringement. The purpose of identifying your business with a trademark is to promote the recognition of the business and enterprise. The trademark protection impedes the efforts of competitors from counterfeiting the unique signs when marketing different products and services.

“Copyright” grants authors, artists and other creators protection for their compositions and works. The “works” that are covered by copyright include (but not limited to): novels, poems, plays, newspapers, advertisements, choreography, artwork, technical drawings, and reference works. Copyright holders have the exclusive right to use and authorize others to use the work on agreed terms.

The right holder(s) of a particular work can authorize or prohibit:

1. Its reproduction in all aspects and forms;

2. Its performance and communication to the public domain;

3. Its broadcasting;

4. Its translation into other languages;

5. Its adaptation (i.e. turning a prestigious novel into a film).

For more information concerning your intellectual property issues, rights and how they affect your business or employment, please contact Richard Korb, an experienced business/IP attorney at 510-524-0903 for a free consultation