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For more information:
See The A-to-Z "Crash Course" in Home business Basics in Barbara’s book,
HOMEMADE MONEY: Bringing in the
It includes excellent information and advice on copyrights, patents and trademarks especially
for home-business beginners– all checked for accuracy by copyright/patent/trademark attorney
Mary Helen Sears.
Established business owners will benefit from this book's discussions of how to protect
intellectual property, from how to handle copyright infringements and corporate
to illegal use of freelance articles and original designs. There are also tips on how to protect a patent,
trademark or trade secret, with first-hand stories from business owners
who explain the actions they took to protect their intellectual rights.
This book also includes
a special section of pre-patent tips from retired inventor Jeremy Gorman, who has
counseled countless inventors individually and through seminars.
Beginner's Guide to
Intellectual property controls the ownership of ideas and their expression.
Four main areas of law protect intellectual property: patent, copyright,
trademark, and trade secret. This article gives a broad overview of these areas
of law and offers resources for the beginning businessperson. To understand how
each of the branches of intellectual property law works, it helps to first ask
two questions. First, whom is the law supposed to protect? Second, what is
society trying to accomplish with this law?
Patent law is the form of intellectual property most people immediately think
of because it controls mechanical inventions. Patents can also be granted to
plants and processes. Patents protect the unique and novel idea of the inventor.
Under this arrangement, society receives the benefits of innovation and the
inventor gets an exclusive monopoly on their idea for a period of years. The
phrase patent originally stood for "letter patent." The concept of a
right to have a monopoly on the production of a novel way of doing something
goes back hundreds of years. When the founders of the United States wrote the
U.S. Constitution, they specifically provided for the protection of patent
Patents are expensive, time-consuming and relatively difficult to accomplish
as a do-it-yourself project. Inventors should be aware that U.S. law provides
that, after disclosing the idea, the inventor must patent the idea within one
year or lose the chance for patent protection for the invention. The right
patent could potentially be worth millions. It all depends on the underlying
value of what the patent protects.
Inevitably, the huge risks and rewards of the patenting process attract a
varied cast of characters. An independent inventor has to have a dream and the
determination to see it through. Along the road of development the inventor will
probably require the help of others. These other people can make or take their
dream. Inventors should be quick to investigate and slow to pay or disclose. A
host of free or inexpensive services should be explored before paying out any
money. The best place to start would be the United States Government at the Web
site of the U.S. Patent and Trademark
office. Their physical address is General
Information Services Division, U.S. Patent and Trademark Office, Crystal Plaza
3, Room 2C02, Washington, DC 2023. Phone: (800) 786-9199 or (703) 308-4357.
Many states have small business development centers, which offer free or
inexpensive advice as well. Some libraries act as depositories for the federal
government, and patent and trademarks can be searched at those libraries. Last,
some communities have an inventor’s council or other group that is usually
made up of other inventors.
This site offers information on how inventors have been defrauded and
specific steps to take to avoid it. Just like finding a plumber, the inventor
should ask around before he or she parts with the cash.
A second type of government protection of intellectual property, copyright,
closely resembles patents. Both require registration and the broad purpose of
both is to encourage progress in society by offering innovators what amounts to
protection of the expression of their ideas for a period of years. However,
unlike patents, copyright protection requires far less time and expense. For
example, a form of copyright exists the moment the product is created. However,
this right only offers modest protection compared to those rights, which are
available with federal registration.
However, patents and copyrights differ significantly as well. While a patent
can protect an idea regardless of whether the idea is used, copyrights can only
protect the expression of an idea in a tangible medium. As an example, a
copyright could be registered for a book about a specific cowboy’s life, but
it could hardly be used to stop anyone from ever writing a book about the old
Copyrights also differ from patents in that different government agencies
issue them. The Unites States Patent and Trademark Office (USPTO) does not issue
copyrights. Instead, the
United States Copyright Office issues copyrights. Its physical address is Copyright Office,
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000. Phone: (202) 707-3000.
While many resources exist for help with patents and trademarks, the
resources for reliable copyright help are not so numerous. The best place to start is
with the Copyright Office Web site mentioned above. The following Web sites also
offer good information: The
Copyright Website and
Attorney at Law, whose website features a wealth of articles about trademark
and copyright laws as they relate to writers, publishers, website owners, and
other creative people.
Trademark law makes up the third major way to protect intellectual property. Trademarks
protect products while service marks protect services. Trademarks differ fundamentally from
copyrights and patents. Trademark law has its roots in what is known as competition law.
Competition law establishes rules governing fair competition between businesses in the
marketplace. If one business could just steal the good will and reputation of a competitor
by passing off his or her goods as those of the competitor, that would be unfair. Thus,
courts began to enforce rights in the ownership of the reputation or goodwill of the business.
Therefore, trademark protection fosters competition and safeguards the consuming public
from confusion in the marketplace.
While copyrights and patents are very much creatures of federal law, many states
offer state trademark protection. State trademark protection usually does not cost as much
as federal registration but neither does it offer as much protection. However, it might be
a cost effective way to buy some amount of protection. The contact information and Web
site address for the patent office can be used for the trademark office as well.
Trade secret law is a fourth way to protect intellectual property. Trade
secret law provides the business owner with a way to keep methods or processes
used in his or her business secret from competitors. Unlike patents, copyrights
and trademarks, this legal animal does not play on the federal playground. Trade
secret law is entirely a creature of state laws. The business owner who hopes to
swear others to perpetual silence regarding his or her improved process should
immediately get a lawyer in their state to discuss the options. Most business
owners immediately think of a non-compete agreement as the way to protect secret
processes or information. Non-compete agreements can be an effective tool, but
these agreements have been hotly contested in state courts. Terms of the
agreement governing length, enforceability and geographic limits are often
subject to litigation.
Making decisions about intellectual property assets involve much the same
process as deciding about any other property used in business. How much
protection the innovator might need and how much he or she might want to spend
for it is ultimately a business decision. Intellectual property protection of a
hot commodity can be worth millions; but all the protection in the world won’t
save a dud and make it into a product worth protecting. When Coca Cola got
started it was just another beverage company, but look at the revenue stream
from the licensing of its trademark now.
Copyright © 2004 by Richard E. Schell. All rights reserved. This article neither
constitutes legal advice nor does it form an attorney-client relationship. Rich
Schell is a lawyer and author of
Quick Cash--A Guide to Raising Money
as well as coauthor of U.S. Immigration and Citizenship Q&A. He also
offers a Rights for Writers seminar with information about
copyright. You can reach him by phone at 847-759-9833.
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