Patent, Copyright, or Trademark? What Type Of Intellectual Property Protection Is Best For Your Situation?
By Fatih Ozluturk:
A patent, trademark, copyright and trade secret are separate forms of intellectual property and are meant to protect different things.
A patent protects any new, nonobvious and useful invention.
An invention may include “any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof.” (35 USC 101) A patent grants a patent holder the exclusive right to exclude others from making, using, or selling the claimed invention. In the United States, the duration of a utility patent is typically 20 years from the date on which the application for patent was filed and 14 years from the date of issue for a design patent.
A copyright protects “original works of authorship fixed in any tangible medium of expression.” (17 USC § 102) Originality and fixation are the two fundamental requirements for copyright protection. Unlike a patent, a copyright protects the expression of an original work. Copyrightable subject matter includes: literary, dramatic, and musical works; pantomimes and choreography; pictorial, graphic and sculptural works; audiovisual works; sound recordings; and architectural works. (17 USC § 102) In the United States, a copyright lasts for the life of the author (or longest lived joint author) plus 70 years, or 95 years from publication or 120 years from creation, whichever expires first.
A trademark protects words, names, symbols or devices that identify the source or origin of goods or services. Trademarks are meant to protect the consumer by preventing the public from being misled as to the origin of a good or service. Unlike a patent or copyright, trademarks can theoretically last forever.
According to the Uniform Trade Secrets Act (UTSA), trade secrets are “information, including a formula, pattern, compilation, program, device, method, technique, or process, that derives independent economic value, actual or potential, from not being generally known to or readily ascertainable through appropriate means by other persons who might obtain economic value from its disclosure or use; and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Although state law governs trade secrets, a majority of states have adopted the UTSA. Unlike patents, trade secrets do not have a specific term of years. A trade secret loses its protection when there is a public disclosure of the secret. Some inventors choose to keep potentially patentable inventions as a trade secret to avoid the uncertainty of whether they will be granted a patent. Additionally, patent law requires a public disclosure of the invention. An inventor must choose between a patent and a trade secret since the same invention may not be protected by both methods simultaneously.