What is an intellectual property right?
Intellectual property (IP) can seem abstract. You can see and experience the benefits of innovation, but you can’t touch IP itself. It’s often called intangible. So what is IP exactly? At its core, IP is a legal right. Intellect refers to the mind, so intellectual property refers to a mental creation that has protectable value.
More specifically, IP is a legal right that gives the owner power to stop others from doing something. In the way same that an owner of real property can stop others from using their real estate, an intellectual property owner can block others from using certain intangible assets.
Let’s look into what those intangible assets might be, and how they can be protected.
Checking out the competition: Is it possible for old products to have IP?
Suppose you want to start selling a product that is already in the marketplace. Your product will not have any improvements over competing goods. Think of perfumes or luxury goods. Can you build IP in selling such existing products?
Yes, you certainly can. This is where trademarks play a role. Names or logos used to sell a product may be protectable even if the product itself is nothing new. Unlike patents, the role of a trademark is not to signify something new, but rather to indicate the source of the product or service. When consumers see a particular brand, the mark tells them that the product comes from a particular company.
Consumers may expect a certain level of quality or other product characteristics from a brand owner. Customers might expect to pay more, or less, depending upon the brand of the product.
Trademarks can last indefinitely. As long as the owner continues to sell products or services under a particular mark, then trademark rights do not have a definite expiration date. Failure to renew a trademark registration can lead to a canceled registration, but the owner may still have common law rights by continually using the mark.
Unlike patents, trademarks do not necessarily need to be registered in order to be protectable. A company who was first to use a mark in commerce – e.g., by selling goods or services under the mark – may have common law rights even if the trademark is unregistered.
Besides trademarks, there is another category of IP that may apply to existing products. Hint: it’s a secret.
Trade secrets: Is there IP when you tell no one?
Existing or new products may have something protectable that’s right under your nose. Consider the recipe for your favorite soda or chain store fried chicken. You can enjoy the product, but you don’t know exactly how to make it yourself. We’re talking about trade secrets. A helpful definition by the Uniform Trade Secrets Act (UTSA) identifies certain conditions for confidential information to be protectable:
- commercially valuable by being confidential;
- known only to a limited group of persons; and
- kept confidential by reasonable efforts.
Unlike patents which have a definite expiration, trade secrets can last indefinitely as long as the above requirements are maintained.
Trade secrets may not be ideal if your technology can be easily reverse engineered. A competitor who analyzes your product and figures out how to build their own version might not using your trade secrets because they did not take anything confidential.
From an idea to something real: How do concepts become intellectual property?
Suppose you have an idea for a new product. Maybe you’ve thought of a mobile app that can perform some new functions that would be uniquely useful. Have you gained IP by simply thinking of your idea?
Not exactly. When it comes to new ideas, we’re talking about inventions. And inventions can be protected with patents. Depending upon whether your idea relates to appearance or function, you can file either a design patent application or utility patent application. You might consider both if your invention is both functionally and visually unique.
Here’s a helpful article on filing a utility patent application and another one filing a design patent application.
Keep in mind that patents must be registered in order to be protectable. You must follow through the patent application process and obtain a granted patent. Abandoning a patent application would yield the same result as never applying. In either case, you would end up with zero patent rights. The same result applies to filing only a provisional patent application and failing to follow up with a nonprovisional within one year.
Can you get IP by simply selling a new product without filing anything?
What if you launch a new product or technology without filing any patents? Do you have protectable IP in the innovation? Maybe.
You might have protectable copyrights in the creative aspects of your product, such as the source code of your app or the appearance of your product. While registration is required for copyright litigation, you do not need to register your copyright in order to claim ownership of it.
Keep in mind that copyrights do not protect ideas or concepts. They only protect specific expressions. A competitor can create a similar app by independently developing their own source code to accomplish the same functions. A copyright registration would enable you to stop someone who stole your code.
If you want to protect the functionality of your app against competitors who develop their own code, you need patent protection.
Separate Yourself from the Competition: Use IP to Build a Moat
What good is your technology if others can freely copy it? Unless you have a trade secret as discussed above, leaving protectable IP on the table is giving a free pass to the competition. Savvy investors want to invest in companies with moat. Building an intellectual property portfolio can create such a moat. Consider how an IP portfolio filled with registered trademarks and patents might affect your funding or sales.
Do you need to act quickly? Is IP time sensitive?
IP can be time-sensitive depending upon which intellectual property right you need to pursue. For example, there are no deadlines for filing copyright or trademark applications though there may be significant disadvantages in waiting.
Patent rights, on the other hand, will be forever forfeited if you fail to act in a timely manner. Foreign countries require a patent priority date prior to any public disclosures. Thankfully, the United States has a grace period for applying for US patents that is one year from the date of your earliest public disclosure or sale.
How much does IP cost?
Here are some helpful cost estimates for various types of intellectual property applications:
- US design patent initial filing cost
- US utility patent initial filing cost
- international utility patent international (PCT) initial filing cost
- US trademark application filing cost
Our firm offers flat rates for IP services.
Is an IP attorney the same as a patent attorney?
Not all IP attorneys are patent attorneys. Some lawyers who practice only trademark or copyright law may call themselves an intellectual property attorney. To be a registered patent attorney, a lawyer must also pass the patent bar of the US Patent and Trademark Office. However, the USPTO does not allow just anyone to register for the patent bar examination. Applicants must meet certain educational course requirements in order to be eligible to take the patent bar.
The next time you talk to an IP lawyer, ask if they are a registered patent attorney. Better yet, look them up on the USPTO site.
Need to get intellectual property rights?
Reach out to IP attorney Vic Lin by email at vlin@icaplaw.com or call (949) 223-9623 to see how we can help you secure valuable IP rights. Our firm of intellectual property attorneys can help craft an IP strategy that fits your particular situation and budget.
