Intellectual Property is the group of legal rights in things that people create or invent. Intellectual property rights include patent, copyright, trademark and trade secret rights. In Europe and some other countries, "moral rights", which are rights of the artist not to have her work greatly altered, are also included.
Origins of Intellectual Property Law
Most people are surprised to discover that intellectual property rights originated with our Founding Fathers in Article 1, Section 8, Clause 8 of the U.S. Constitution which states that Congress shall have the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The right to exclusive ownership and use of one's inventions, and the monetary rewards from giving others permission to use them, work in conjunction with the other beliefs of our Founders.
In the middle to late nineteenth century, fostering of creation with monetary reward grew into capitalism. Capitalism embodied (a) the benefits and rewards of hard work (concepts from Puritanism); (b) the exchange of business ideas through products and services; and (c) competition in the marketplace and financial reward for the most popular or beneficial ideas, i.e. those items that sell the most make the most for their inventors.
It was not accidental that capitalism had many of the same theoretical bases as Charles Darwin's notions of survival of the fittest that was authored during roughly the same time period. Author and Harvard biology professor Stephen Jay Gould states that Darwin read economist Adam Smith's writings prior to authoring his "survival of the fittest" theory. [1]
Indeed, intellectual property law, with exception of patents that preceded the rest in codification by several centuries, was mostly codified during this same period -- the late eighteenth to late nineteenth centuries. The laws sought to protection rights in creations and ensure earned monetary reward for their creators. These rewards incentivized others to create.
The heart of United States intellectual property law is the balancing of two goals: financially rewarding creation through granting of exclusive rights to the creators, and promoting the free flow of ideas to facilitate more inventions. The tension in these goals reflects the careful balance between the "Promotion of Science and Useful Arts" Constitutional clause above and the First Amendment - between ownership of art and words and the freedom to speak and express them.
Understanding the tension between these goals is the key to understanding intellectual property law. The balance of these concepts is visible throughout intellectual property cases and statutes. Keep these goals in mind whenever you try to assess an intellectual property problem and the solution will be much easier to grasp.
With this in mind, let's consider briefly what rights are granted under patent law.
Patent Origins
The United Kingdom Patent Office states that the first patent was issued in London in the fifteenth century. In the United States, the first patent was granted in 1790. Patent is used to protect methods, processes and inventions.
When Do You Get a Patent?
After inventing a work, the inventor must apply for and obtain a patent from the USPTO.
What's Required to Get a Patent?
In order to patent something, you should have a patent attorney, licensed to practice before the Patent Office, assist you with the application. Upon receipt of your application, the Patent Office will examine your application to determine if it meets the legal requirements for obtaining a patent. The requirements are extremely complex. However, simplified, the requirements are that your invention is:
- Novel: this mean it must not be known or used by others in this country, or patented or described in a printed publication here or abroad, or in public use or on sale in this country more than one year prior to the application for patent;
- Non-obvious: this means it must not be obvious to a person having ordinary skill in the pertinent art as it existed when the invention was made;
- Useful: this means that it must have current, significant, beneficial use as process, machine, manufacture, composition of matter or improvements to one of these. According to the Patent Office, "the word 'process' is defined by law as a process, act or method, and primarily includes industrial or technical processes. The term 'machine' used in the statute needs no explanation. The term 'manufacture' refers to articles that are made, and includes all manufactured articles. The term "composition of matter" relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically everything which is made by man and the processes for making the products."
Certain kinds of software and Internet-related processes merit granting of patents.
What Do You Have When You Have a Patent and Is There Any Risk?
If granted, a patent gives you a 20-year monopoly on selling, using, making or importing the invention into the United States. Your patent gives you the right to exclude others from making, using, offering for sale, selling or importing the invention in the United States.
You should be aware of two risks. First is that obtaining a patent can be expensive. You should consult your patent attorney to get a specific estimate, but the application process can take 3 to 5 years due to the understaffed and overburdened USPTO. The costs range from $20000 to $70000 depending on the time and complexity involved. Secondly, be aware that in exchange for the sales monopoly the patent gives you, your patent (i.e. how the invention works), becomes public information, once granted, so that others may learn from your ideas. This again reflects the Founding Fathers desire to give financial reward, in this case, the sales monopoly, and also foster further invention and free speech by disclosing the information to other inventors. Due to the disclosure result, many often opt not to seek patent rights so that they can keep their invention and ideas secret. Some items that can be patented can also be copyrighted or protected by trade secret law.
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[1] Stephen Jay Gould, The Panda's Thumb: More Reflections in Natural History (New York: Norton, 1982), p.64 as reported on www.crosscurrents.org/darwin.