Protecting Intellectual Property
Posted: 2/5/2007 8:56:47

PROTECTING INTELLECTUAL PROPERTY
William D. Harazin


Property and its attendant property rights are fundamental to our economy, legal system, individual rights and governance. Often times Real Property gets the most press. Is it a boom or is the crash coming? However, there are other just as important types of property. Property can be divided into Real Property and Personal Property. Real Property is land and anything permanently attached to it. Personal Property is property other than real property including the familiar cars, trains, planes and other play toys. Personal Property can further be divided into tangible and intangible property. Tangible personal property has physical attributes. Intangible is personal property without physical attributes including what is generally referred to as Intellectual Property or “IP”.

Intellectual property is that intangible property which is the product of our brainpower. Unlike, tangible property which we can touch and feel, intellectual property typically has no physical attributes. It comprises our thoughts and ideas whether it’s the next best mousetrap or your latest song, poem or story.

If we are the author of these new thoughts and ideas we are its owner with all of the bundle of rights comprising ownership including rights to use, exploit, exclude, destroy and transfer. We must protect our property from those who might attempt to steal it. To protect tangible property from a thief, we can lock it away, hire guards, use alarms and other methods of security. Since the intangible “idea” can’t be touched, felt or seen it is not as easily protectible. We must use alternative methods of protection. These may be through self-help by maintaining secrecy or by governmental assistance through patents, trademarks and copyrights. Certainly, the easiest way to protect your idea is to keep it to yourself, but in doing so it may be difficult to exploit and you may lose it if you divulge your secret.

Under the U.S. Constitution “Congress shall have the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” (Article 1, Section 8). This constitutional directive essentially grants the inventor or the author an enforceable monopoly for limited durations. The government by granting this right is not necessarily benevolent, but rather requires something in return. It is willing to grant a limited monopoly and the methods to enforce it in return for disclosure on the premise that disclosure will enrich society and encourage innovation.

To protect new and original ideas, the Government will issue patents for inventions, trademarks for identifying symbols and copyrights for songs, plays, writings and the like. In addition, there are laws protecting against the wrongful disclosure of trade secrets.

There are three types of Patents: Utility Patents; Plant Patents and Design Patents covering different types of inventions. Depending on the type, the Government will grant a monopoly to exploit the invention for a duration ranging from 14 to 20 years. To obtain a patent through the U.S. Patent and Trademark Office the invention must be novel, non-obvious and have utility. The Patent application must also be filed within one year of public disclosure or it becomes part of the public domain. The process is expensive and can take years for the Patent to be issued. However, upon issuance the Government provides stiff remedies against those who infringe upon your Patented invention in the form of injunctive relief, compensatory and punitive damages, destruction or impoundment and criminal penalties.

Trademarks are words or symbols used to identify one’s goods and services and to distinguish them from those of a competitor thereby providing a competitive advantage. The mark must be affixed to the product, package or service, be distinctive and used or intended to be used in interstate commerce. The best marks are those that are arbitrary and fanciful. In other words coined words with no relation to the product or the company such as Xerox or Kodak. Once a Trademark is obtained from the U.S. Patent and Trademark Office it is effective for 10 years and renewable and it will provide similar strong remedies against infringers as those obtained under a Patent.

The Government will also issue a Copyright for works of the useful arts such as poems, songs, literary writings, musical and dramatic works, architectural works even computer programs. Unlike Patents, a copyright will only be issued for an original work of authorship fixed in a tangible medium of expression. In other words, its protecting the expression of the idea and not the idea itself. Though under Common law no action is required to obtain copyright rights, it is best to take action to increase your rights and remedies against infringement by including the copyright legend on the work and registering it for a relatively nominal fee with the U.S. Patent and Trademark Office. Typically, the copyright will last for the life of the natural born author plus 70 years. Again, the same stiff remedies are available against infringers.

Trade Secrets are also protected to some degree by way of monetary damages, penalties and injunctive relief. If the idea is one, which is not otherwise protectible by Patents, Copyrights or Trademarks or if one merely does not want to disclose the Secret, it can be kept secret and will be protected against wrongful discovery or disclosure. A Trade Secret is dependent upon secrecy. As such, unlike the other protections with limited duration, a Trade Secret will last indefinitely or it may be lost immediately upon inadvertent disclosure. One must not only intend to keep the idea secret, but it must also treat it as an important secret.

Though intellectual property is intangible, protection with teeth is available. As such, any Company or individual with original ideas, which provide them with a competitive advantage, should look into obtaining the benefits and protections afforded by Patents, Copyrights, Trademarks and Trade Secrets.

© 2006 William D. Harazin
All Rights Reserved

William D. Harazin
Attorney at Law
Adjunct Associate Professor
School of Textiles
North Carolina State University
Raleigh, North Carolina
wharazin@harazinlaw.com