What is Intellectual Property?

By Gene Quinn 

Generally speaking, “intellectual property” is probably best thought of (at least form a conceptual standpoint) as creations of the mind that are given the legal rights often associated with real or personal property. The rights that are obtained by the creator are a function of statutory law (i.e., law created by the legislature). These statutes may be federal or state laws, or in some instance both federal and state law govern various aspect of a single type of intellectual property.
The term intellectual property itself is now commonly used to refer to the bundle of rights conferred by each of the following fields of law: (1) patent law; (2) copyright law; (3) trade secret law; (4) the right of publicity; and (5) trademark and unfair competition law. Some people confuse these areas of intellectual property law, and although there may be some similarities among these kinds of intellectual property protection, they are different and serve different purposes.

What is a Patent?
Whenever you think patent you should think  invention. Thus, a patent is the grant of a property right to an inventor. Patents only exist once they have been granted, and in the United States patents are issued by the U.S. Patent and Trademark Office, which is a non-commercial federal entity and one of 14 bureaus in the Department of Commerce. Before going any further it is worth pointing out that ideas are not patentable, although every invention starts out with an idea. Still, in order to be in a position where you can obtain a patent your idea must have matured into an invention. See Moving from Idea to Patent.
There are three very different kinds of patent in the United States: (1) a utility patent, which covers the functional aspects of products and processes; (2) a design patent, which covers the ornamental design of useful objects; and (3) a plant patent, which covers a new variety of living plant.
Each type of patent confers “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. It is important to note, however, that patents do not protect ideas, but rather protect only tangible or identifiable structures and methods.
Typically when someone refers generically to “a patent” they are talking about a utility patent. In order to obtain a utility patent it is necessary to file a non-provisional patent application and go through an examination process where a patent examiner will review the application to determine what, if any, claims can be allowed. Many are probably also familiar with a provisional patent application, which can be used to establish priority and give the applicant “patent pending” status. A provisional patent application will never mature into a patent though. It is always necessary to file a non provisional patent application to obtain a patent.
Patent claims define the exclusive rights granted by the government. If it is not in a patent claim you do not have rights associated with it. If the claims are too detailed they can be easy to get around and not commercially useful. There is a lot that goes into any patent application, both from a technical and strategic standpoint.
Generally speaking the patent term for utility patents is now 20 years from the date on which the application for the patent was filed in the United States. Under some circumstances it is possible to obtain a 5 year extension to the patent grant, but this is rare, unless your invention relates to a pharmaceutical composition. It is also possible to obtain extension of patent term due to USPTO delay. Design patents, unlike utility patents, have a 14 year term from date of issuance.  Historically, design patents were quite weak, but as the result of an important decision from the United States Court of Appeals for the Federal Circuit in the Fall of 2008, design patents are now much stronger and should be considered an important part of a patent portfolio when your invention relates to a product.

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