Intellectual Property Law, Part I

INTELLECTUAL PROPERTY LAW

Anything that can be owned can be viewed as property. It can be a tangible thing, such as a car, a home, or a piece of land; or it may be an intangible, artificial right created by social interaction or legislation, such as a right to receive money under a contract or the right to control the use in commerce of the trademark Gelatissimo. In all cases, whether tangible or intangible, property may be valuable and it may be transferred to others, whole or in part. For example, a home may be sold or leased for a period of time; and a trademark may be sold with a business or licensed to a franchisee.

Intellectual property is an intangible type of property commonly thought of as the product of intellectual activity. Inventions, original works of art, know-how, magazine articles, books, computer programs, photographs, poems, movies, songs, theatrical performances, speeches, experimental results, sound recordings, and music scores are all examples of intellectual property. As such, they all are assets that may be valuable and worthy of protection. Intellectual property law is the body of laws that provide the conditions under which intellectual property may be protected and establish the rights of the owners. Thus, it is important to be able to identify what is intellectual property, on one hand, and how to protect it, on the other. Generally speaking, different areas of the law exist to protect different kinds of intellectual property, with some overlap in some cases.

The laws related to patents, copyrights, trademarks, and trade-secret/secrecy-agreements are the vehicles available in our legal system for the protection of Intellectual property. Broadly speaking, these four distinct areas of the law apply to the following kinds of intellectual property:

1. patent law, for inventions and discoveries.

2. trademark and service-mark law, for names, logos, symbols and other items used to identify the source of products and services.

3. copyright law, for original artistic and literary works.

4. trade secret law, for proprietary ideas, inventions, and discoveries suitable for secrecy.

Each area of the law is separate and in large part specific to one kind of intellectual property only. For example, patent law protects inventions, such as your calculator, but not works of art, such as an original painting. Trade-secret law protects useful confidential information, such as the Coca Cola formulation, but not the trademarks used by the company to market its products, such as Coca Cola, Coke or Fanta.

As illustrated above, for legal rights to attach to intellectual property, it must also be of a kind susceptible of ownership by an individual or entity, so that it can be treated as property. For example:

-dealing with discoveries, it is obvious that one could not own exclusively a naturally occurring substance (such as iron). By its nature, it must be capable of belonging to anyone, and to the public at large. You cannot prevent others from using a new element simply because you discovered it (although you could keep it secret and use it to your advantage and the law would protect your right to do so).

-dealing with trademarks, you cannot retain the exclusive right to use English words. You could not call a beverage "soft drink" and prevent the public from using those words.

Many and different kinds of things result from intellectual activity and are properly considered intellectual property attributable to specific human activity (by way of creation or discovery). For example:

-abstract concepts, such as the idea of protecting buildings from lightening by intercepting it above the building and grounding it.

-ideas reduced to practice (inventions), such as the lightening rod, which is a physical embodiment of the abstract concept enunciated above.

-discoveries, the realization of useful information, such as the fact that penicillin kills bacteria, or that gravity can be used to produce work.

-literary works, such as novels, poems, plays, biographies and textbooks.

-artistic works, such as sculptures, paintings, photographs, films and videos.

-musical compositions, such as sound tracks for movies, songs, symphonies and operas.

-scientific works, such as experiments, procedures, data, reports and articles.

-electronic-medium works, such as computer programs of any kind, written in any language, for any machine.

-distinctive marks used in business to indicate the origin of goods and services, such as names, logos, slogans, sounds, scents, and even colors.

Note that intellectual property is that intangible component of property that can be owned or possessed separate from and often in addition to a tangible component. Its value is not associated with anything concrete that can be directly used and enjoyed, but rather with what it enables one to do. For example, a copyright in an original work, such as a painting, is the intellectual property that gives the owner the exclusive right to make copies of the painting. That is the intangible property right that constitutes intellectual property. On the other hand, ownership of the painting itself (the frame and canvas with the picture) is a tangible-property right that gives the owner the right to possess, sell, or otherwise dispose of the painting, but not the right to make copies.

Some intellectual property can be protected under U.S. law, some other cannot. What can be protected is strictly a matter of legislation and common law, based on policy considerations and tradition. With some notable exceptions (such as drugs derived from natural substances and medical procedures, which are not protected in various countries), most foreign countries afford protection to essentially the same basic items of intellectual property covered by U.S. law.

Patent Law

Patent law is the body of federal statutes, regulations and case precedents governing ownership and the proprietary rights associated with ownership in certain inventions and discoveries. All patent statutes are founded on Art. 1, Sect. 8, Clause 8 of the U.S. Constitution, which gives Congress the