What is Intellectual Property and What Kind Do I Need?

Drawing of a brain
The following is a transcript of Episode 1 from the "Patenting from Inventors" Podcast.

You may have heard the terms: intellectual property, patent, trademark, copyright, and trade secret thrown around but don’t have a good understanding of the differences, and you may not even know which one applies to what you're doing. All you know is that you have something, or you thought of something that you don’t want anyone else to steal. This first episode (of the Patenting for Inventors Podcast) is going to be an overview of the four main types of intellectual property, and I give examples of each, so you have a better idea of which one you might need. Your invention or product may fall into just one type of intellectual property, or it could fall under two, three or all four types.

What is intellectual property? Intellectual property refers to creations of the mind that can be protected by law. There are four main types: copyrights, trademarks, patents, and trade secrets, and I’m going to go through a very basic overview of each of these.

Copyrights are the first area I’m going to go over. Copyrights are meant to protect original and creative expressions. The most common things that you might get a copyright for are music, paintings, books, lyrics, movies, dance choreography, and product manuals. It does not cover the underlying ideas. Two movies can have be about the same idea, but if there are entirely different scripts, then you aren’t prevented from making a movie about the same general idea. Also, you can’t copyright facts. For example, the phonebook, even though it is book, is not copyrightable because it is just facts of names and phone numbers. There has to be something original and creative for you to have copyright protection for your work. It also has to be in some physical form, so even though I said dance choreography can be copyrighted, there is only copyright protection if it has been recorded in some physical medium such as on video or written in dance notation. So if you have thought of something that fits into one of these categories, you are probably interested in copyrights. Copyrights today generally last the life of the creator, plus 70 years. So once the creator dies, for the next 70 years, the heirs to the author can continue to collect royalties.

The second category of intellectual property is trademarks. Trademarks are sometimes confused with copyrights because both can be made up of words or designs. The difference is that trademarks identify the source of the goods. The question is, when you see this word, or design, or slogan, is it telling you what company or business it came from, that differentiates it from other companies? For example, the Nike swoosh. When you see that on a shoe, you know that it is Nike, and not Reebok. When you see the peacock on TV, you know it is an NBC show and not a CBS show. Trademarks can also be slogans, such as “Just Do It!” When you see that slogan, you know it is Nike. When you hear “Don’t leave home without it,” you know that it is American Express, and not Visa. Most trademarks are slogans, logos, business names, product names, and service names. Trademark rights can last forever as long as they are continuously used.

The third category of intellectual property is patents. Patents protect inventions. The invention can be an improvement for something already known, such as inventing a new kind of battery that can last twice as long as known batteries, or inventing a new medical device that makes heart surgery easier, or creating a new drug that fights cancer. The invention doesn’t have to be a physical object, but can be a method of doing something. For example, someone might be able to get a patent for a method of refining oil that makes it cheaper and easier to make gasoline out of crude oil. Most of this podcast series is going to be about how to get patents for physical products and method patents. Together, these physical products and method type patents are called utility patents. There are two other kinds of patents, which are called design patents, and plant patents. I’ll cover those in later episodes.

Patent rights generally last 20 years from the time of filing, and during this time you have the right to stop people from making, using, importing or selling your patented product. After the 20 years are over, anyone is free to copy your patented invention.

The last category of intellectual property is trade secrets. Trade secrets are exactly what they sound like, secrets. As long as they remain secret and no one can figure out what the secret is, then you have a business advantage. A trade secret is usually confidential business information. Probably the most famous trade secret is the exact formula for Coca-Cola. There’s an urban legend that only two people know the formula to Coca-Cola and they’re not allowed to be on the same plane together in case the plane crashes and the formula is lost forever. Even though the specific urban legend isn’t true, it is true that not many people know, and the formula is a guarded secret. Why doesn’t Coke patent the formula so no one can copy it? There are a few reasons, but one of them is that if they patented the formula, they would have had to disclose what the formula is, and then after 20 years, anyone could make the formula. This goes to one of the benefits, but also one of the drawbacks of trade secrets. A trade secret can last forever, as long as it is kept secret, but if the secret gets out by reverse engineering the formula, then anyone can try to recreate Coke. Businesses often use what are called non-disclosure agreements so that employees are barred from revealing the secrets of a company, but if the secret gets out, you can’t go after the public for using the information from that secret.

As I mentioned before, whatever your idea is, it might be covered by all four types of intellectual property. Let’s take for example a new type of watch. You may have discovered a way to connect gears together in a new way that allows the watch to be much more accurate. The way you connected the gears together would be covered by a patent. But let’s say that you designed a watch band with a particular new pattern or image on the face of the watch. That might be covered by copyright. You might want to put your business logo on the watch (such as Rolex, or Timex, or Casio), and that would be covered by trademarks. And let’s say the leather you used for your watch strap wasthe best leather in the world, and you don’t want others to know where to get this leather. Your leather supplier could be your trade secret.

Those are the four areas of intellectual property: copyrights, trademarks, patents, and trade secrets. In the next episode I’m going to cover the steps to go through from when you first have an idea for a new invention to start you on the patenting process. Until next time, keep on inventing!