By: THOMAS L. PETERSON
The phrase intellectual property (IP) refers to the bundle of legal rights that arise from the creative genius of the human mind. IP rights play an important role in the economic prosperity of a country and serve as a motivating force for creative individuals to share their genius with society. Like real and personal property rights protect one's ownership interest in tangible objects, such as land and automobiles, IP rights protect one's ownership interest in intangible objects, such as the idea behind an invention, the music score for a Broadway play and the name or logo used to brand a product. Without enforcement of these rights in the law, it would be difficult for society to prosper and grow. In this article, you will learn what intellectual property rights are and the differences between its various forms.
When most people think of intellectual property rights, patents, trademarks and copyrights come to mind. This core set of IP rights reward and protect the creative works of inventors, authors, owners and sellers of goods and services in the marketplace. While the legal principles that underlie each of these rights are distinct, they each share a common set of principles.
An award of patent, trademark or copyright protection requires a delicate balance between the interests of the inventor or author and the interest of society as a whole. This balance is very much like the tradeoff required by zoning laws, which attempt to protect the ownership interest and exclusive right to use that a land owner has with society's interest in the limited use of the owner's land for society's greater good. Public utility easements and right of ways are examples of this balance.
The grant of a patent on an important invention of a lifesaving drug represents a similar set of tradeoffs. Is it fair to the inventor to allow society free access to the patented drug? Is it fair to society to be denied access for its greater good? It is the role of intellectual property law to harmonize these seemingly conflicting interests.
Intellectual property rights also foster a competitive marketplace. They do so by encouraging disclosure of innovation through protecting the fruits of that innovation for a period of time. Disclosure allows others to build and improve upon prior innovation so that the state of the art continues to evolve and develop. Without the benefits provided by intellectual property protection, the market place would not operate as effectively. Imagine what the world would be like if every competitor had to continuously "reinvent the wheel" rather than being able to refine and improve upon the works of others.
Finally, intellectual property rights are regional in nature and the conditions of their grant and enforceability are governed by the laws of each jurisdiction. A U.S. patent can be only granted and enforced in accordance with the laws of the United States. A trademark can only be registered and enforced in Canada in accordance with the laws of Canada, and a copyright can only be registered and enforced in Mexico in accordance with its laws. While there is a desire to be somewhat uniform and consistent, countries have different approaches to intellectual property rights protection. Variations in the procedure for obtaining IP rights account for a large percentage of these differences, rather than the differences in the substantive rights granted in each country.
The words "patent" and "trademark" are often used interchangeably. Many times, we hear that a patent is used to protect a logo and that a trademark is used to protect an invention, and vice versa. While patents and trademarks may be associated with the same product, the two words have very different meanings and refer to very different forms of intellectual property rights. They can seldom be used interchangeably, as the underlying rights that each protects is quite different in nature.
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