What are the 4 Types of Intellectual Property?
Alt Legal Team | September 18, 2022
Intellectual Property (IP) is the umbrella term for four primary types of IP: patents, copyrights, trademarks, and trade secrets. Practicing each type of IP requires specific knowledge and typically, IP attorneys will specialize in either “hard IP” (patent) or “soft IP” (trademark and copyright). Attorneys who file and prosecute patents must be admitted to the patent bar, which requires a scientific, technical background (usually an undergraduate degree in Biology, Chemistry, Engineering, Computer Science, or other related technical and/or scientific fields) as well as the completion of an entrance exam. As a result, not all attorneys may prosecute patents. Attorneys who specialize in trademarks and copyrights do not need a specific educational background, but they must have a keen understanding of branding, business, and marketing so that they can properly position their clients’ IP in the marketplace to obtain maximum IP protection.
It is important to note that IP attorneys work very closely with paralegals who have developed expertise in IP law. Often, like IP attorneys, IP paralegals will specialize in a particular area within IP based on their educational background and/or experience. Alt Legal has developed a free Trademark Paralegal Course to help new and experienced trademark paralegals master the fundamentals and nuances of trademark practice. The course was designed by two former educators and features sessions taught by top trademark attorneys and paralegals. Learn more about Alt Legal’s Trademark Paralegal Course.
A patent is the grant of a property right to the inventor. In the US, patents are issued by the U.S. Patent and Trademark Office (USPTO). With a patent, the owner has the right to exclude others from making, using, importing, offering for sale, or actually selling the invention in the US.
The USPTO issues three different types of patents: utility, design, and plant patents. Utility patents may be granted to anyone who invents or discovers a functional product, process, or machine. Design patents may be granted to anyone who invents an original and ornamental design for a functional product. Learn about the difference between design patents and trademarks in this Alt Legal guest blog article. If a product has both a unique appearance and function, the owner may obtain both a design and a utility patent. Lastly, plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new plant variety.
Because patent protection provides the owner with exclusive rights, the duration of patent rights is short relative to the duration of copyright and trademark rights. A patent’s duration is limited to 20 years, and owners must publicly disclose the invention when the patent is granted. This exchange of disclosure for exclusive protection encourages continued invention and innovation, while rewarding current patent holders.
Copyright protects original works of authorship that have been tangibly expressed in physical or digital form. Copyright encompasses the following works: literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. In the US, copyright protection vests upon creation and fixing the work in tangible form. Works do not need to be registered with the US Copyright Office to receive copyright protection. However, the benefit to registering a work with the US Copyright Office is that the author may collect statutory damages and attorney’s fees in a successful infringement suit.
Regardless of whether a work is registered, copyright ownership permits the author to do the following:
- Reproduce the copyright work
- Prepare derivative works
- Distribute copies
- Perform publicly
- Display publicly
Notwithstanding these protections, the Fair Use Doctrine of the Copyright Act permits others to use a copyrighted work without the author’s permission in criticism, comment, news reporting, teaching, scholarship, and research.
Copyright protection lasts for the author’s life, plus 70 years. If the author is anonymous, pseudonymous, or created the piece as a work-for-hire, protection lasts either 95 years from the date of publication, or 120 years from the date of creation, whichever comes first. Once the term of the copyright expires, a work enters the public domain and anyone is free to use the previously-copyrighted work in any manner.
Learn about the intersection of copyright and trademark law at this Alt Legal webinar: Copyright and Copywrong: What trademark attorneys need to know about copyright.
A trademark is a word, phrase, design, symbol, sound, or scent that identifies the source of goods or services. Trademarks protect a company’s brand and image, and they help consumers identify a company. Unlike patents and copyrights, there is no set term for the life of a trademark. Once a trademark is registered, the owner is entitled to 10 years of protection and can continue to renew the trademark every 10 years so long as the owner can prove that the mark is still being used in commerce as a source of goods and/or services.
While it is not required to register a trademark with the USPTO, common law trademark rights do exist, a registered trademark can be used alongside the ® symbol and affords the trademark owner a legal presumption of ownership nationwide and the exclusive right to use the mark in connection with the goods and/or services set forth in the application.
A trade secret is a unique type of intellectual property that has overlap for both hard- and soft-IP lawyers as it impacts a variety of business types. There are three elements that define a trade secret.
A trade secret:
- is information that has either actual or potential independent economic value by virtue of not being generally known,
- has value to others who cannot legitimately obtain the information, and
- is subject to reasonable efforts to maintain its secrecy.
All three elements are required; if any element ceases to exist, then the trade secret will also cease to exist. Otherwise, there is no limit on the amount of time a trade secret is protected.
Examples of trade secrets include recipes, formulas, computer algorithms, patterns, survey methods, marketing strategies, etc. Some of the most famous trade secrets include the Coca-Cola formula, the Kentucky Fried Chicken spice and herb blend, the Google search algorithm, and the New York Times Bestseller List.
Unlike patents, copyrights, and trademarks, there is no central office in the United States where trade secret owners can file to protect their trade secrets. Instead, they must make their own effort to maintain the confidentiality of their trade secrets. Trade secret owners generally use nondisclosure agreements (NDAs) and other types of confidentiality agreements to secure this information. They must also make “reasonable efforts” to protect sensitive information, for example, by marking files “confidential”, locking and password-protecting files, and containing knowledge pertaining to trade secrets among only those who need to know the information.
In the US there are two primary federal laws that protect trade secrets, the Economic Espionage Act of 1996 (the “1996 Act”) and the Defend Trade Secrets Act of 2016 (the “2016 Act). The 1996 Act criminalizes trade secret theft and the 2016 Act amended the 1996 Act to establish a private civil cause of action for the misappropriation of a trade secret. Additionally, state laws exist to protect trade secrets and trade secret owners may choose to bring federal or state actions (or both) in the case of trade secret theft.