- Depending on the type of idea a person has, there are certain types of protection that the Federal and state law can offer. Written Federal law offers protection in the forms of patents, trademarks and copyrights. Sometimes written, sometimes unwritten, but court enforced, State law protects against loss of trade secrets and unfair competition. Depending on the type of idea one has, the appropriate protection may be sought.
- With regard to patents and copyrights, the United States Constitution specifically provides for protection to inventors and authors in Article 1, Section 8 of the Constitution. This protection has been provided by law in the patent laws and copyright laws.
P A T E N T - The patent laws offer protection for a compound, a composition, a process, a machine, or an article of manufacture; or new and useful improvement on one or more of those classes. A patent is also possible on an asexually produced plant or a decorative article.
- If one can obtain a patent for an idea, one has the right to stop others from making, using, or selling that idea for a period of time. If somebody copies a patented idea, the patent holder has an automatic right to file suit and possibly receive an award of attorney's fees and punishment in addition to normal damages. The punishment can be as much as three times the damages proved.
C O P Y R I G H T - Copyrights protect written works, music, computer programs, statutes or other type of artistic works such as paintings. If a copyright is obtained, the person owning the copyright has the sole right to make copies of whatever it is the copyright covers. If a person comes up with the same copyrightable idea independently, that person may not only use that idea, that person may also be entitled to a copyright on that idea.
T R A D E S E C R E T - Trade secret involves something that cannot be analyzed easily. If a person makes an item or a composition which cannot easily be designed (or reverse engineered) by examining the item or composition, a trade secret can be used to protect the idea. To protect this trade secret, the knowledge of how to make the item must be kept to a restricted few. For example, probably one of the best-known trade secrets still in existence is the secret for manufacturing Coca Cola. Only four or five people know the exact formula. Careful precautions are made to keep the formula secret and avoid the problem. This formula has been a trade secret since the 1890's and is still marketed today under the name Coca Cola Classic.
T R A D E M A R K - A Federal trademark is provided for in the Federal law based on the commerce clause of the Constitution. As such, one must achieve use of the trademark in interstate commerce even before a trademark can be registered. One may file an intent to use application with the United States Patent and Trademark Office without having this use in interstate commerce, followed by proof of use in interstate commerce, although fees and costs increase.
- However, the faster the mark is used and the sooner the trademark application is filed, the more complete protection is obtained.
U N F A I R C O M P E T I T I O N - Unfair competition involves theft of or inappropriate use of information obtained from a person in an inappropriate manner. This is an extremely difficult matter to prove and is handled for the most part by State law.
- Thus, it may be seen that there are a number of ways to protect an idea. The laws provide for protection for ideas. Any investments in a patent or copyright must be carefully considered. Patents especially are expensive relatively speaking. There is no guarantee that one can make money on a patent. Therefore, the investment in a patent must be carefully considered. The best assumption to use when applying for a patent is that money is being spent, for which, a reward may never come.
- Keeping these factors in mind, one may consider protecting an idea.
Copyright 2000, Mathew R. P. Perrone, Jr.
Attorney at Law/Patent Attorney
210 South Main Street
Algonquin, IL 60102
Protecting An Idea
This article was edited and reviewed by FindLaw Attorney Writers | Last reviewed March 26, 2008
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