Monday, July 5, 2010

Patents Copyrights Trade Secrets and Trade Marks – Protecting Your Invention

Patents aren’t the only form of both defensive (protection) and offensive (the right to exclude others from making, using, and selling, the claimed invention) intellectual property rights that inventors have at their disposal for his or her new invention.

There are also copyrights, trademarks, and trade secrets which an inventor can use with or without obtaining a patent for the new product he or she has created. Each of these tools provides the owner the right to exclude others from using some form of intellectual property, whether it's a patented invention, copyrighted creative work, registered trademark or trade secret

Owning intellectual property lets you trade and negotiate your right-to-exclude for something else of value—including royalties or anything else you can negotiate.

Patent rights

The US government grants a patent owner the right to exclude others from making, using, and selling, the claimed invention in the U.S. without a license. Patents expire after 20 years from the date the application is filed. Protection begins only once the patent has issued.

Patents are generally considered the strongest form of intellectual property because independent creation is not a defense to an infringement claim. Patents are time-consuming and expensive to obtain, discouraging many inventors from pursing their invention.

Trade Secrets

A trade secret is any information, design, device, process composition, technique, or formula that is knot known generally and that affords its owner a competitive business advantage. Trade secret protection requires that reasonable steps must be taken to protect the secret, such as limiting access to the secret information, and using nondisclosure agreements etc.

A big advantage that trade secrets have is the possibility of perpetual protection. While a patent expires after 20 years from the filing and can not be renewed, a trade secret can last forever as long as it isn’t discovered.

Federal law protects trade secrets by authorizing criminal prosecution of those involved in the theft of trade secrets.

The big disadvantage of a trade secret is that it won’t be a secret anymore if the public is able to figure it out by inspecting, dissecting, or analyzing the product.


A trademark is any word, name or symbol that is adopted and used by a company to identify its goods in commerce and distinguish them from the goods of another company, like brand names. Companies producing services rather than products use “service marks” in the same way.

Trademarks can be protected under both state and federal law. As with copyrights, some trademark protection is established as soon as a mark is used and those rights will last as long as the mark remains distinctive and is not abandoned.

Trademarks should be registered in the U.S. Patent and Trademark Office. As with patents, trademarks must be registered in each country where protection is desired. Trademark registrations are more expensive and time consuming than copyright registrations, but much less expensive and time-consuming than a patent.


Copyrights are offensive rights granted by law to an author, artist, composer, or programmer, to stop others from copying their work. A copyright only covers the arrangement of words that make up a book, it will not cover the book’s subject matter as would a patent.

Federal copyright law protects software and other forms of, expression from unauthorized copying, modification and distribution. For works created by individuals, protection lasts for the life of the author, plus 50 years. For works created by corporations, protection lasts for 75 years from first publication.

Copyright protection is automatic when a work is created, but for the best protection, the copyright should be registered with the U.S. Copyright Office. Copyright protection is easier and cheaper to obtain and lasts longer than patent protection. However, unlike patent protection, copyright provides no defense if a competitor creates a similar work independently, but without copying yours.

Offensive, and defensive intellectual property rights require considerable knowledge and experience to effectively enforce. There are a number of good books available to learn more about these other forms of invention and new product protection.

The Copyright Handbook: What Every Writer Needs to Know, by Stephen Fishman
Trademark: Legal Care for Your Business & Product Name, by Stephen Elias

Nondisclosure Agreements: Protecting Your Trade Secrets & More, by Richard Stim and Stephen Fishman.