Whether you run a sole-proprietor company from home, are pioneering a promising tech startup, or manage an international e-commerce enterprise, running a business involves a lot of attention to detail. While most entrepreneurs know what to focus on when it comes to acquiring funding or establishing an initial marketing strategy, intellectual property (IP) law can leave some scratching their heads.
However, intellectual property is one of the key aspects to set a plan for early, since it can define the success or failure of your business in the long term. Although some of the legalese may be daunting, intellectual property protection basics aren’t all that complicated. This guide covers the main facets of IP law, and how to use them to protect your business.
Defining Intellectual Property
In order to start discussing intellectual property law, it is important to first figure out what “intellectual property” really means in terms of business. As per TheFreeDictionary in its legal section, intellectual property is defined as “intangible rights protecting the products of human intelligence and creation.” Let’s break that down.
The important terms here are “products of human intelligence and creation.” Intellectual property is a category needed to be able to govern the rights to non-physical assets, creations of the human mind that don’t adhere to the same exact principles as physical possessions do.
If someone were to steal a car, they would be taking something of use and value from another. However, what does it mean to copy someone’s artwork and sell it? Distribute it for free? Claim it as one’s own creation? All of these examples devalue both the reputation of the
original artist or the monetary worth of the art itself, via imitation and dilution of the market. It is pretty clear that another system of laws must govern intellectual property, and that that system would by necessity need to be a lot more complex.
IP law is a legal system, and it covers a variety of different types of intellectual property. Let’s examine which types of IP can affect businesses and how.
Different Kinds of IP Law
There are, in the U.S., four different kinds of intellectual property. These are trademarks, trade secrets, patents, and copyrights. Each covers a different type of intangible aspect and each can be enforced in different ways.
A trademark is a registered brand-associated element that can help consumers identify a company. Trademarks can include logos, brand names, slogans, and even jingles. They enable companies to distinguish themselves from other companies that exist in the same market, protecting their own brand association and reducing confusion. A registered trademark also lends a certain air of credence to a business, elevating trust in many consumers.
Trade secrets, on the other hand, involve the behind-the-scenes elements of running a business. A trade secret can be anything from a secret recipe to a specific manufacturing technique. The requirements for trade secret protections are that the trade secret grants a company a competitive advantage by staying unknown to others, and that reasonable efforts (such as employee confidentiality agreements) have been made to keep it that way.
Patents are vital elements of almost all small businesses, especially in the startup world. New businesses often get started due to a great invention or new approach to a problem. But manifesting that creative idea into an actual product or service can take years and many millions of dollars in research and development funding.
The patenting process was established in order to give inventors a leg up and encourage further innovation by granting a temporary monopoly for developing and selling an invention, process, or design element. We’ll cover patents in more detail in the next section.
Finally, copyrights protect creative work such as music, art, writing, photography, and the like. Registering a copyright enables litigation against infringing parties, and makes it easy to license the use of creative work to others for a fee or a percentage. Copyrights in the business world often involve creative work that the business produces, but can also apply to any work the business wants to use as part of its marketing or services.
Now that we’ve covered the basics, what should businesses be doing to make sure they get protected with IP law?
It is always a good idea, especially in the modern age of e-commerce, to register trademarks for your business so you can start developing good brand association. The U.S. Patent & Trademark Office (USPTO) is in charge of approving trademarks and has an excellent overview of the process, but here are the main things to focus on:
Trademark Search: Once you have determined what you want trademarked (whether that’s a brand name, a symbol, or a sound), it is crucial to search the USPTO database to see whether someone else already owns the rights to it in a way that would cause confusion and a denial of the application.
Trademark Application: If you determine that the trademark is worth applying for and does not come into conflict with any preexisting marks, it’s time to file a trademark application. This application involves several different forms that can be found online, as well as an application fee. Once the form is submitted, you should receive a decision typically within about three months, though it can sometimes take longer.
Trademark Enforcement: While the USPTO is in charge of granting trademarks and patents, it does not enforce those trademarks. This means that it is up to businesses themselves to identify potential trademark infringement and send cease-and-desist letters or engage in litigation. Businesses must be vigilant and decisive in order to make the most of their successfully approved trademarks.
Throughout this whole process, it is highly advisable to consult with a qualified attorney that specializes in IP law in order to maximize the chances of a successful application and avoid costly mistakes.
Patenting Your Inventions
Patenting is perhaps the most powerful tool enabled by IP law. An invention or process is patentable if it is non-obvious, novel, and useful. A successfully granted patent grants a temporary monopoly for 20 years, which allows R&D-heavy ventures to recoup their investments by being the only seller on the market and defending themselves from predatory companies.
The patent process is similar to that of trademarking, if more intensive. Again, the USPTO is your guide and the final arbiter of the decision.
Patent Search: Similar to a trademark search, a patent search is a good starting point for the patenting process. In this case, however, you will need to dig much deeper to determine what elements of other granted patents may overlap with yours. Both the USPTO and Google have useful patent searching features to assist in this process.
Patent Application: The patent application (and application fee) can be daunting, but it is one of the most crucial places to invest time and effort in for any company. A patent application is generally made up of three sections: detailed descriptions, drawings and figures, and the claims. The claims constitute the legally enforceable part of a patent and are highly legalistic statements of which elements are
inventive and therefore protected. Patent applications are typically revised many times over before submission, cover both broad and narrow claims, and may only be partially approved (each claim can be individually approved or denied). They can also be submitted online.
Examiner Review: Once a patent application has been accepted, you must work with a USPTO examiner to revise any disputed sections and finalize the patent. J.D. Houvener of Bold Patents stresses the importance of consulting a patent attorney in all steps of the patent application process.
“Patent attorneys have experience in patent searching, writing up patent applications, and in the final review process. Hiring a patent attorney is, of course, a financial investment, but can exponentially increase the chances of approval and the profits that come with it.”
Not every business owner needs to be an expert in intellectual property, but a fundamental knowledge of IP law can be an invaluable asset in various stages of a growing business. By determining which parts of your company can be eligible for IP protection, you can start the requisite processes that can grant those protections. Not only is it a good idea to register trademarks and file for patents,
but a good knowledge of intellectual property can make it easier to avoid expensive legal battles resulting from accidental infringement or violations on your end. Be sure to conduct a thorough assessment of your business and identify any areas where action needs to be taken; then, with the help of a qualified professional, get to work protecting what needs to be protected!