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Common Forms of Intellectual Property

Intellectual property consists of tangible forms of creations of the mind. Inventions, written works, drawings, bred plants and industrial designs are examples of intellectual property. Ideas alone are not intellectual property. Like all forms of property, the ownership and rights associated with intellectual property are dictated by national laws and acts of federal governments.

Common forms of Intellectual Property are (see below for a detailed description of each):

Some common features of all types of intellectual property are:

  • They allow for a business monopoly.
  • They are a right granted by a local government.
  • They may be co-owned. Co-owners each have equal rights.
  • The right granted requires the owner to protect it.
  • Like physical property, they may be sold, given away, licensed or ignored.
  • They must be defended to be of value. If another party infringes (or uses inappropriately) someone's intellectual property, the onus is on the owner to protect their rights.
  • Infringement may be stopped by court order.
  • Damages for infringement are generally awarded through the courts on the basis of lost revenues to the owner.

 

Patents

A patent is a right granted by a country to the inventor to prevent anyone else from making, using or selling the inventor’s invention. Inventions can take the form of specific devices (widgets or thingies), chemical compositions (composition of matter), processes or specific uses of things.

In order to be patentable, an invention must satisfy three criteria: it must be novel, non-obvious and useful.

The criteria of novelty is likely responsible for the aura of secrecy that exists around patents. In order to get granted a patent, the invention must be completely unknown in the public domain before the patent application is granted. This means if any evidence of the invention is found on the Internet, in video, photos, or publications, the patent may not be granted. In worst case scenarios, a patent can be revoked after it is granted and new evidence comes to light.

Non-obviousness is the most subjective of the patent criteria. The invention must be non-obvious to someone skilled in the art. If the invention is in the field of polymer chemistry and it is obvious, then most polymer chemists, on hearing of the invention, would say something to the effect of: "Oh, yeah, you just add a little ammonia as a catalyst and heat for an hour.” On the other hand, if a polymer chemist hears of the invention and says, “Really? How do you do that?” then the invention is non-obvious. As you can imagine, making the non-obvious decision can be difficult.

Utility is the easiest criteria to satisfy because it relates to the ability of the invention to theoretically do something, in contrast to an abstract concept, like a red sky. No judgment is made of an invention about its commercial potential by the patent office.

Patents must be applied for in each country separately and patent rights only extend to the area where a patent is granted. A US patent does not give the inventor the right to stop the invention's unauthorized use in Canada.

Patents are expensive, as they not only involve the filing fees from the local patent office but also fees for patent attorneys to write defendable applications. The process of application is lengthy and often involves a good deal of discourse with the patent office. This is called defence of the application. There is no guarantee that a patent will be granted.  

Patent applications are published about 18 months after filing and generally are in effect for about 17 years after issue.

Due to the cost of patenting and the public disclosure of the invention, the choice of a patent as protection for the basis of a business depends on the anticipated value of the invention and length of its life in the market. A high value (multimillion in annual sales) but short-lived product is most appropriate for patent protection.

There are many other subtleties to the patents, including:

  • the nature of the patent itself (claims, references, classifications),
  • process of getting a patent (prosecution, interference),
  • ever changing legislation around them (American invents Act, patenting of biological materials),
  • strategic use (licensing, trolls, patent estates, jurisdictions) and
  • logistics (provisional patents, PCT applications, divisionals, continuations in part).

Patents are also a good source of information about what companies and other inventors are doing. There are a number of on-line resources available for searching through published patents and patent applications, such as:


Copyright

Copyright is the right given by a government to the author of written material. It applies to any written text, regardless of where it is found - website, paper book, eBook, handwritten on the back of an envelope, music (lyrics and song), software, and it also applies to more visual media, like photo, artwork, videos, movies and performances. Copyright only applies to the exact form of the work, so two similar stories or pieces of computer code do not necessarily infringe upon each other. Also, the content of the work is not owned by the copyright holder. A musician may record a song and own the copyright on the performance but not the lyrics to the song if someone else wrote it.

Like a patent, copyright gives the author the right to prevent others from reproducing and selling their copyrighted work. Unlike patents, no registration or application needs to be made for copyright to be granted. It exists as soon as the work is created. However, it is much easier to prove authorship if it is registered.

There is no simple answer as to whether copyright protection is international or not. Various countries respect each other's protection.

Copyright also lasts varying times after creation in various countries, but generally it is some years (50 to 75) after the death of the author(s).


Trademarks

From a business perspective, it has been argued that trademarks are the most valuable form of intellectual property. Trademarks may be a combination of words, symbols and names, or just one of these things. They tend to render instant recognition of a brand, company or product. We seem to only need a fleeting glimpse of a symbol to recognize the Coke swirl, the Nike checkmark or Apple's forbidden fruit.

Trademarks can be registered for each country, although some weight is given to established use. Even if a company has not registered their name, but has been using it for a number of years, that may be enough to prevent anyone else from using it. However, to ensure protection, it is best to register it. Trademarks are specific to certain wares, so that it is possible for a restaurant, a golf ball manufacturer and a fruit juice brand to have the same registered name.

Like patents and copyright, trademarks give the holder the right to prevent others from using the mark. Trademarks are granted for 15 years in Canada, but may be reapplied for after a term is up.

An interesting consequence of the World Wide Web relates to the use of domain names that contain registered trademarks, such as www.johndeere.com. While trademarks are country and ware specific, domain names are international and ubiquitous. There can be a different John Deere business in each of many countries, but only one www.johndeere.com. Thus, a complex area of intellectual property law is emerging with regard to the use ownership of domain names for business purposes.


Trade secrets

A trade secret is just that - something a business keeps secret that gives it a competitive advantage. Trade secrets can resemble a number of types of intellectual property. They may be the composition of matter - like the recipe for Coke, or a process for manufacturing that is very efficient or gives a superior product- or it may be copyrighted material like software code that is kept secret.

In order to maintain rights to a trade secret, a company must be able to show it has taken measures to protect its secret. Examples of this sort of measure include: keeping information locked in filing cabinets and behind restricted access doors and insisting that employees sign confidentiality documents. Damages for leak of trade secrets can be sought through the courts. A successful suit will likely depend on being able to prove that the discloser of the secret had no right to disclose.


Plant breeder
s rights

In Canada, it is possible to obtain a proprietary right to selected strains of plants. More information about this concept can be obtained here.


Industrial Designs

You can obtain proprietary right to a version of a common, or not so common, object. This is well illustrated on the Canadian Intellectual Property Office website.

As you will see in the link, this is the registered industrial design for the iPOD. It is easy to understand that this product has a unique look. Other aspects of the iPOD, such as the way it works and the software that underlies its operation can be protected by patents, while the Apple trademark is also an important component of its value.

This publication from the Canadian Intellectual Property Office has plenty of information about industrial designs
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