Intellectual Property Law FAQs
The area of intellectual property encompasses patents, copyrights, trademarks, and trade secrets. Each of these methods for protecting intangible property rights comes with distinctive features and advantages. Since much can be at stake in obtaining and enforcing intellectual property rights, you may need to consult an attorney to understand your options. However, these are general answers to questions that inventors, artists, business owners, and others may ask.
What things can I patent?
What things can I not patent?
When is an invention novel?
When is an invention non-obvious?
When is an invention useful?
Can I get a patent for computer software?
Can I get a patent for an invention if I am employed by a company?
How long does patent protection last?
What happens if a company uses my idea without permission?
What rights do I have in unpublished cartoons?
How do I record an album of cover songs?
How long does copyright protection last?
Do I need permission from the copyright owner to use part of a song?
Am I liable if I sell items that infringe on a copyright in my consignment shop?
Can someone else use the name of my business for their business?
How do I protect a food recipe?
What is a trade secret?
What rights do I have as an owner of a trade secret?
How should I protect my trade secrets?
What happens if someone steals a trade secret?
The most common type of patent is a utility patent. You can potentially get a utility patent for a machine, an article of manufacture, a composition of matter, or a process or method that produces a useful and tangible result. You also may be able to get a patent for an improvement on any type of invention in the previous list. In addition to falling within one of these categories, the invention must be useful, novel, and non-obvious. (See below for more about these requirements.) You also can get a design patent for a design feature of a product if it is novel, non-obvious, and not related to the functionality of the product. Plants can qualify for a specific type of patent if they are novel and non-obvious. Large companies usually obtain these patents, which are rare.
You cannot get a patent for a mathematical formula, a law of nature, or a scientific principle that has no functional application. Nor can you get a patent for a naturally occurring substance that you discovered. Also, public policy prevents granting patents for inventions that have only illegal uses, pharmaceuticals that are not safe to market to the public, or ways of conducting surgery on people. Other types of subject matter that cannot receive patent protection include processes that consist entirely of human motor coordination, as well as printed materials that lack a distinctive shape or structure. If you have composed a creative work, such as a song, a movie, or a novel, copyright would be the appropriate form of protection, rather than a patent.
An invention is novel if at least one of its elements is different from existing inventions in the field. Determining whether an invention meets this requirement involves reviewing all of the existing inventions in the field at the time that the applicant filed the patent application. You cannot meet this requirement if your invention was described in a publication or used in public before you filed the application, unless you described the invention in a publication no more than one year before filing the application.
An invention is non-obvious if the typical person in the field would not view it as a predictable development. This takes into account some level of specialized knowledge, but not necessarily the inventor’s level of knowledge. The non-obviousness requirement is highly subjective. It requires the patent examiner to consider only the inventions in the field that existed on the date that the application was filed, even though the evaluation usually occurs much later.
An invention is useful if it has a functional result that benefits some people in some way. This is not a high threshold to meet. The benefit does not need to be significant and can be simply humorous. However, the applicant needs to show that the invention works or can be expected to work. (If you are applying for a design patent or a plant patent, you do not need to meet this requirement.)
You may be able to get a patent for computer software if it produces a useful and tangible result. In other words, you can receive protection for a specific application of a mathematical formula, even though you cannot receive protection for the formula.
Generally not. Your employer probably will have patent rights for any invention that you create in the course of your employment. However, your employment contract may provide bonuses for inventions that prove valuable. If your employment contract does not cover this issue, the employer still will have patent rights under the employed-to-invent doctrine if you were hired or told to create an invention, or hired or told to perform a defined task that resulted in creating the invention. In situations in which neither an employment agreement nor the employed-to-invent doctrine applies, an employer may have a shop right in an invention. This means that the employee owns the patent, while their employer can use the patented invention without paying the employee in addition to their regular salary. A shop right arises when the employee uses the employer’s resources during the invention process.
If you have a utility patent, protection usually lasts for 20 years after the filing date of the application. If you filed the application before June 8, 1995, patent protection may last for 17 years after the patent was issued if this provides longer protection than the 20-year period. If you have a design patent, protection lasts for 14 years after the patent was issued. If you have a plant patent, protection lasts for 17 years after the patent was issued.
You may be able to sue the company for copyright or patent infringement if you put down your idea in some type of protectable form. This does not necessarily mean that you have a registered patent or copyright, but you at least need to have written it down, filed a provisional patent application, or done something similar. If you have not done this, you still may be able to sue if the company signed a non-disclosure agreement before discussing the idea with you. This would be similar to a breach of contract case. Finally, you may be able to sue based on a breach of an implied agreement if your idea was a trade secret or in certain other circumstances, but these cases are usually hard to win.
Once you have fixed the cartoons in a tangible medium, copyright protection applies even if you have not registered a copyright. In other words, you have rights as soon as you sketch the cartoons on paper or on your computer. However, you may want to take the additional precaution of formally registering your copyright with the U.S. Copyright Office. This can help you take action against someone who steals your cartoons or otherwise infringes on your copyright. Eventually, you can put a copyright notice on published copies of your cartoons, which will defeat any defense of accidental infringement.
You will need to get permission from the music publisher for each song. This may involve getting a compulsory license and paying the fixed fee set by the federal government (known as a statutory fee) for this type of license. You would not need to negotiate with the music publisher or directly ask them for permission to use the song if you get a compulsory license. If you would prefer to negotiate a lower fee, however, you can contact the music publisher or the Harry Fox Agency. Either type of fee is known as a mechanical royalty.
If a work was published in 1978 or later, copyright protection lasts for the life of the author and 70 years afterward. If the author was anonymous or published under a pseudonym, or if the work was made for hire, copyright protection lasts for 95 years after the work was published or 120 years after it was created, whichever is less. (However, if the name of the author of an anonymous or pseudonymous work is disclosed to the Copyright Office, protection will last for 70 years after the death of the author.) If a work was published in 1977 or earlier, copyright protection usually lasts for 95 years after the work was published. If a work was published in 1963 or earlier, the copyright owner must have renewed the copyright 28 years after it was granted to receive the full 95-year protection period. Once the period of protection expires, the work enters the public domain, which means that it can be used without seeking the owner's permission.
Generally, yes. You would need to get permission from both the copyright owner of the song and the copyright owner of the recording. However, this is not always easy or even feasible, since the owners may not respond or may demand huge fees. You may want to check to make sure that copyright protection still applies before going through this process. Many songs recorded in the 1960s or earlier have entered the public domain, which means that anyone can use them without getting permission. Even if you are unable to get permission, and the song is not in the public domain, you may be able to argue that fair use protects you. This usually requires showing that you are using only a small portion of the song, you are not making a profit from your use, and you are not otherwise harming the value of the work or invading the market for it. Realistically, the copyright owner may never find out about your use if you do not make money from it, or if it does not attract substantial attention. If they do find out, they may send a cease and desist letter rather than filing a formal lawsuit. You should be able to resolve the issue by removing the material described in the letter, without further consequences.
You may be liable as a “secondary infringer” if you are aware of the infringement and agree to sell the items. This means that the copyright owner could sue you for damages. If your shop is a small business, though, the copyright owner probably will not detect the violation and file a lawsuit against you, since they will be focused on suing larger infringing entities. Instead of suing you, they may just send a cease and desist letter. If you remove any items that you know are infringing when you receive this letter, this should forestall any further legal action.
This depends on the degree to which your products and services overlap. If the businesses are located in different parts of the country and serve different audiences, each business likely is free to use the same name. This is because consumers would not be confused and would not assume that the businesses are connected. The purpose of trademark law is to protect consumers from confusion. Even if you have a registered trademark for your business name, this does not mean that you can sue for infringement unless you can show a likelihood of consumer confusion.
You probably cannot protect it with a patent, since you would struggle to meet the novelty requirement. Copyright protection might be a good option if you include the recipe in a cookbook that compiles various recipes. A recipe on its own probably cannot receive copyright protection because it does not meet the minimal creativity requirement in terms of literary expression. A cookbook might get protection because choosing the recipes in the compilation and writing additional text to describe them might show enough creativity to meet the standard. If you are planning to sell the food to consumers, you might be able to protect the name and label of the dish by getting a trademark, but the trademark does not protect the recipe. Your best option might be protecting the recipe as a trade secret. This requires asking anyone else who needs to know the recipe to sign a non-disclosure agreement. Trade secrets do not provide protection against reverse engineering recipes.
A trade secret is any type of information, idea, product, device, formula, or combination of these that gives its owner an advantage over the competition. Its owner must take reasonable steps to keep it secret to preserve protection. A trade secret will remain protected as long as its owner maintains secrecy. It might involve not only information about what works well for your type of business but also information about what does not work well. In short, a trade secret can cover anything that is not generally known if it has some business value.
You can prevent anyone subject to a non-disclosure agreement or an automatic duty of confidentiality from revealing the secret without permission, or from copying the secret, using it, or otherwise benefiting from it. (For example, an employee would be subject to an automatic duty of confidentiality.)
The extent of your precautions will depend on the value of the secrets. You do not need to surround your business with barbed wire and an army of guards, but you should make sure to consistently use non-disclosure agreements, mark folders as confidential, lock away confidential information when you leave the business, use computer passwords, and limit the number of people who can get access to confidential information.
The owner of the trade secret can get an injunction in civil court, which will order the thief to refrain from any further disclosure or use of the secret. Also, the owner may be able to receive damages for any losses caused by the theft or disclosure of the secret. They would need to show that they kept the information secret and that it confers a competitive advantage, and the defendant improperly acquired or disclosed the information. Sometimes the thief will face criminal prosecution as well. Laws such as the federal Economic Espionage Act impose substantial fines and years in prison for the intentional theft of trade secrets by individuals or companies. Some states impose their own criminal penalties for trade secret theft.
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