Main Areas of Intellectual Property
There are four main areas of intellectual property: patents, trademarks, copyrights, and trade secrets. Some intellectual property attorneys may have expertise in all of them, while other intellectual property lawyers may specialize in just one or two of them.
Patent law is designed to protect unique scientific inventions. A patent gives the holder the right to prevent others from making, using, or selling a device based on that patent without your permission. An intellectual property lawyer helps you file the patent, which is a complex process.
The intellectual property lawyer then helps you protect and leverage your patent. This means intellectual property lawyers can go to court on your behalf to enforce your patent against infringement. Your intellectual property attorney can also help you enter into lucrative contracts that allow companies to use your patent legally and to your financial benefit.
Trademark law protects words and logos that represent a specific organization or individual from being used by others. For example, the intellectual property attorneys at Coca-Cola long ago trademarked its distinctive lettering.
These marks can represent goods or services. You can get some trademark protection without registering your mark. However, you'll have the greatest protection for your trademark if you have an intellectual property attorney register it. In either case, you'll want an intellectual property lawyer to enforce your trademark rights in court.
A copyright applies to creative work set in a tangible expression. A tangible expression can be a book, a recorded performance, or a video game, just to name a few examples. Like the trademark, an author can hold a copyright without formally registering. However, an intellectual property attorney has more legal options to protect your copyright if you've registered it before someone has copied your work.
A trade secret is specialized knowledge that isn't easily ascertainable by others that gives a company an economic advantage over its competitors. A trade secret can take many forms, such as a process or formula. Coca-Cola's recipe is the most famous and longest held trade secret. Owning a trade secret is unlike all other types of intellectual property in that it is protected by not making it public in anyway.
As some people at a company will have to know the secret in order to use it, intellectual property attorneys are needed to draft strong and enforceable confidentiality language in necessary contracts.
The last critical point about intellectual property is that registrations are territorial. Meaning, if you want protection in a country, you'll need your intellectual property attorney to file specifically in that country.
In today's highly competitive market, strong branding is becoming the key to success. Having a trademark attorney help you develop, register, and protect your company's trademark is a critical component to controlling your company's brand.
What is a Trademark
A trademark is the particular design, which can be comprised of words, symbols, or both, that uniquely identifies a company's goods in the market. Usually a logo is the most obvious example of what a company would want a trademark lawyer to get registered as a trademark. However, many design elements can potentially be trademarked, such as packaging, color schemes, and even sounds. A trademark attorney can also file for a trademark that represents a service, in which case it's formally called a service mark.
There is some common law regarding trademarks; this is law that hasn't been passed by a legislature but has evolved through court decisions. The states also have some of their own laws, but the primary source of trademark law in the United States is federal.
If you want to protect your trademark outside the United States, your trademark lawyer will have to be familiar with the international trademark system and relevant treaties to help you file for protection in other countries.
Involving Your Trademark Lawyer From the Start
Your trademark attorney can work with your creative team from the start by doing a comprehensive trademark search to ensure that you're not investing development time and money on a phrase or design you won't be able to use because it's already been trademarked. A trademark lawyer can also advise you whether the designs you're developing and using are likely to have the distinctiveness needed in order to qualify as a trademark.
Having Your Trademark Attorney Register Your Mark
The second phase where a trademark lawyer will help you is in the actual filing process to register your trademark. Your trademark attorney will prepare the filing documents needed to file in any countries where you want to protect your mark. You don't need to register your trademark to have some protection. However, a registered mark provides you much stronger protections.
How Your Trademark Lawyer Helps You Protect Your Trademark
Once you have a trademark, your trademark lawyer will help you keep it. If you don't actively protect your trademark, you can lose it. If you see anyone infringing on your trademark, let your trademark attorney know immediately so a "cease and desist" letter can be sent. If needed, your trademark attorney will file suit on your behalf to recover any damages done to your trademark. If you've allowed your trademark to get diluted by not having a trademark attorney aggressively enforce your rights to it or don't renew it, you can lose your trademark.
Finally, a trademark attorney can help you leverage your trademark's goodwill by negotiating advantageous licensing agreements that allow others to use it, for suitable compensation, with your consent.
A patent gives its owner the exclusive right to manufacture, sell, or use the unique product or process covered by the patent. Patent lawyers usually have a scientific or technical background and must be specifically licensed to work in this area of law.
Source of Patent Law
American patent law, like copyright law, actually has its origins in the U.S. Constitution. The Founders wanted "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." Both patent attorneys and copyright lawyers work in laws based on these words.
As a result, U.S. patent law is federal law. Each country has its own patent laws. If you want protection for your invention outside the United States, your patent lawyer will have to file patent applications in those countries as well.
How Patent Lawyers Can Help You
A patent attorney can help you in five areas regarding patents:
- preparing an application
- filing an application
- prosecuting the application
- protecting your patent
- monetizing your patent
Preparing An Application
Before an application is even made, your patent lawyer can advise on you on key decisions regarding your invention. There are different types of patents and a patent attorney will help you understand the differences.
If your work is a unique design, it may be worthwhile to talk with a copyright lawyer about registering for copyright protection. A patent attorney will very often also have experience as a copyright lawyer and can shepherd your work through both processes. In others, your patent lawyer will be able to engage a copyright lawyer to work on copyright registration for you.
Filing An Application
The timing and quality of an application filing can be critical to its success. It is a precise and complex application, and your patent attorney should take control of this process. Copyright registrations are made to a different government office from patents, so the copyright lawyer will manage the registration.
Prosecuting Your Application
Even before you get the patent, your patent lawyer will likely have to defend the validity and qualifications of your application. If another pending application is similar to yours, your patent lawyer may have to show that you're the first inventor.
Once a patent has been granted, others may challenge it or you might want to amend or extend it. In all these cases, a patent lawyer can represent you before patent office.
Protecting Your Patent
The grand bargain of patent law is that you share the details of your invention to advance science, but the government gives you exclusive use of it for a fixed period of time. A patent attorney is needed to stop others who may be infringing on your patent.
Monetizing Your Patent
Getting a patent is one hurdle. Properly licensing it so you can make money off your invention is another one. The best patent attorneys will understand the opportunities and be able to negotiate lucrative licensing agreements.