When developing a new invention or product, many legal questions arise, including: How do I protect the information, invention or innovation from imitators? In legal terms, an idea is an ownable asset, and can be protected from theft. An idea, or set of ideas that belongs to an individual or group is called “intellectual property,” commonly referred to as IP.
Several legal concepts may apply to any given innovation, product, process, or creative work. These intellectual property rights include: patents, utility models, trademarks, copyrights, and trade secrets. For maximizing your protection, it is important to know which are applicable and appropriate. Laws vary somewhat from jurisdiction to jurisdiction. The advice of a U.S. registered patent attorney – a lawyer that specializes in intellectual property and your business / corporate philosophy regarding IP protection rights – is always recommended.
Definition: Intellectual Property
In law, intellectual property (IP) is an umbrella term for various legal entitlements which attach to certain names, written and recorded media, inventions and other “creations of intellect”. The holders of these legal entitlements may exercise various exclusive rights in relation to the subject matter of the IP including making, using, offering for sale, licensing, or assigning. Intellectual property laws and enforcement vary widely from country to country. The 1994 World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and other treaties before and since have facilitated and provided more uniformity in IP protection in most industrialized countries around the world.
Definition: Confidentiality / Non-Disclosure Protection (NDA)
A Non-Disclosure Agreement is exactly what is sounds like: a legal agreement between the owner of IP and a partner that is gaining access to the IP, in which both parties agree that all ideas and thoughts related to the IP are to remain a secret. Based on the NDA, the law effectively allows a perpetual monopoly in respect to the trade secret information – it does not expire as would a patent. Of course, the protection only lasts as long as the trade secret is keep strictly confidential, so upon offering a product for sale the trade secret protection for the product is lost. In addition, some types of IP cannot be protected by trade secret law. Without this document, anyone who comes into contact with a trade secret could use that information for their own benefit.
Definition: Trade Secret
A trade secret is a private formula, practice, process, design, instrument, pattern, or compilation of information used by a business to obtain an advantage over competitors or customers. To be considered a legal trade secret, reasonable efforts to maintain its secrecy of the information must be enforced.
Definition: Patents, Trademarks & Copyrights
A U.S. patent is a set of exclusive rights granted by the federal government to a patentee for a fixed period of time in exchange for a disclosure of the protected invention. Patents provide the rights to exclude others from making, using, offering to sell, selling, or importing into the country. Utility patents protect inventions whose innovation includes a functional feature, whereas Design patents protect inventions whose innovation lies in a decorative or ornamental aspect of the product. Additionally, as mentioned above, it is critically important to keep in mind that once an idea or invention is described in a printed publication, in public use, or on sale, the inventor has 12 months to file a patent application or he or she effectively gives up any available patent rights. The rules on what actions can trigger the 12-month grace period are not entirely straightforward, and the advice of a registered patent attorney should be sought when this issue is present.
Trademarks are words, symbols, or other devices that identify and distinguish the source of goods or services. And copyrights protect works of authorship such as books, paintings, maps, musical lyrics, compositions, and performances. In addition, copyright law can be used to protect software, computer displays, and original aspects of non-functional articles. Patent, trademark, and copyright applications may be prepared and filed with local patent offices in countries where such protection is available.
Royalties are typically usage-based payments made by one party (the “licensee”) to another (the “licensor”) for ongoing use of an asset, most typically an intellectual property (IP) right. Royalties are usually determined periodically as a percentage of gross or net sales derived from use of the asset or a fixed price per unit sold A royalty interest is the right to collect a stream of future royalty payments based on future production of or revenues for a given product.
Definition: License Agreement
A license agreement defines the terms under which intellectual property such as patents, trademarks and copyrights is licensed by one party to another, either without restriction or subject to a limitation on term, business or geographic territory, type of product, etc. License agreements are typically private contracts that follow a general structure. However, every situation is different, so using a “form” license is not recommended because it carries the risk that the agreement is not well-suited for the particulars of a given case. In addition certain types of franchise agreements have comparable provisions.
Disclaimer: See USPTO.gov
The information provided is for general reference only and laws may have changed since the posting. We are NOT providing legal advice. You are encouraged to retain counsel or a patent attorney of your choice to best apply the intellectual property and copyroght laws. Most legal rights have time limits, and rights can be lost if timely action is not taken. The information does not constitute advice on the application of time limitation periods as stated above. Thank you.