WHAT IS A PATENT?

“I make a delicious sandwich that people love.  I want to patent this sandwich.”  “Your poem is very inspirational.  You should get a patent on it.”  “I am going to patent the slogan that I use to advertise my product.”  Many people believe that the way one protects an idea is to get a patent on that idea.  Although this belief is true, it is not totally accurate.  Patents do protect many types of ideas.  However, there are other types of ideas that do not fall under patent protection.  The type of idea will dictate the particular type of protection needed for that idea. The belief that a patent protects any type of idea has caused some individuals to pursue the wrong form of protection for their ideas.  One example was a person who had an idea for an artistic design that would be placed on clothing items (i.e. shirts and caps). The intent was to sell the clothing items containing the design.  For this type of idea (artistic), a copyright is the appropriate form of protection, not a patent.  The person who conceived the idea spent time and money pursuing a patent for that idea.  In addition to that idea being non-patentable subject matter, the cost to pursue the patent was very expensive.  If a person misclassifies his or her idea, the patent and trademark office or the copyright office will inform them of the mistake.  However, they will not refund the person’s filing fee. 

Protecting one’s idea is an extremely important part of developing the idea.  It is vital that one knows the proper form protection for his or her idea.  The four basic forms of protection for an idea are patents, copyrights, trademarks and trade secrets.  Below are brief descriptions of each type of protection.

Patents are primarily used to protect ideas that fall into the technical and scientific arenas. The inventor of a patented idea has the right to prevent others from making, using or selling products based on the idea.  These ideas include mechanical, electrical, or chemical devices as well as any general product used to perform a function.  Also included are all types of methods for performing tasks.  An idea can be simple or complex as long as it has a unique feature.  Patents do not protect artistic ideas.  A United States patent protects an idea in the United States and the United States territories.  A patent provides the broadest protection for an idea, but patents are also the most expensive and most difficult to obtain.

            A copyright protects creative and artistic ideas such as books, paintings, drawings and music against unauthorized copying, selling, displaying, or performing the created work. The author of a work has a form of copyright protection in the work as soon as the work is created and put on a tangible medium (i.e. paper, canvas, video tape).  This initial type of protection is called ‘common law’ copyright protection.  However, common law copyright protection is narrower than the protection one gets from a formal federal copyright registration.

A trademark is the means through which one identifies his or her product in the marketplace. A trademark can be a word, phrase, slogan, symbol, design, or any combination thereof, which identifies and distinguishes the source of the goods or services of one party from the goods or services of another party.  These goods or services can be of any type (technical or artistic).  Initial trademark rights, “common law trademark rights”, are obtained by using the trademark in connection with a product through selling or advertising the product.  This initial trademark use can be prior to filing a formal trademark registration application.

            The fourth way to protect ideas is with a trade secret.  Unlike patents, copyrights and trademarks, trade secrets do not require filing a formal application.  The inventor protects the idea by keeping it a secret.  Agreements and contracts are used to require people to keep the idea confidential.  In addition to covering information such business plans and client lists, trade secrets can be an alternative to a patent for protecting an idea.  Trade secret protection is a consideration when a patent for an idea would be too difficult to enforce.  For example, soft drink formulas are protected by trade secrets.  Although the contents of a soft drink and the method of making it are patentable subject matter, a patent would disclose this information to the general public.  Once the information becomes public, others could use the information to make a similar drink.  It may be too difficult to determine if someone copied an inventor’s formula (recipe) or used their own.

Darcell Walker has over 20 years of experience practicing law.  His specialty area is Intellectual Property law (i.e., patents, copyrights, trademarks, trade secrets and product licensing).  Attorney Walker is licensed in Texas and registered to practice before the United States Patent and Trademark Office.  For more information visit: www.dwalkerlaw.net and www.youtube.com/user/godlyideas.