IP Information Publications
What are Patents,
Trade Secrets? And, how do I choose what I need?
Although there may be some similarities
among patents, copyrights, trademarks, and trade secrets, they
offer different kinds of intellectual property protection.
What is a Patent?
A patent is for an invention. In exchange
for divulging the details of your invention, the United States
grants a property right to the inventor in the form of a patent
issued by the United States Patent and Trademark Office. A
patent confers, in the language of the statute and of the grant
itself, "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; not
the right to make, use, offer for sale, sell or import the
invention. Generally, the term of a new patent is 20 years from
the date on which the application for the patent was filed in
the United States or, in certain cases, from the date an earlier
related application was filed. U.S. patent grants are effective
within the United States, including its territories and
possessions. Once a patent is issued, the owner of the patent,
such as the patentee, licensee, or assignee enforces the patent.
An inventor can obtain a: (1) Utility
patent for inventing or discovering any new and useful process,
machine, article of manufacture, or compositions of matters, or
any new useful improvement thereof; (2) Design patent for
inventing a new, original, and ornamental design for an article
of manufacture; and (3) Plant patent for inventing or
discovering and asexually reproducing any distinct and new
variety of plants.
Provisional patent applications offer inventors an inexpensive process (with respect to government filing fees) for obtaining a filing date or constructive reduction to practice for their inventions. Many provisionals are filed with the expectation of obtaining funding within a year so a utility patent application can be filed and prosecuted. However, the quality and completeness of the provisional patent application significantly affect the level of protection offered by such a filing.
What is a Trademark? And what is the
difference between a Trademark and a Servicemark?
The term "trademark" or "mark" is often
used to refer to both trademarks and service marks. The
difference lies in the use of a mark. A trademark is a word,
name, symbol, or device that is used in trade with goods to
indicate the source of the goods and to distinguish them from
the goods of others. A service mark is the same as a trademark
except that it identifies and distinguishes the source of a
service rather than a good.
Trademark rights can prevent others from
using a confusingly similar mark. Trademarks which are used in
interstate or foreign commerce may be registered nationally and
internationally. Otherwise, the trademark can be registered with
the state within which the mark is used.
What is a Copyright?
Copyright is a form of protection provided
to the authors of "original works of authorship" including
literary, dramatic, musical, artistic, and certain other
intellectual works, both published and unpublished. The 1976
Copyright Act generally gives the owner of copyright the
exclusive right to reproduce the copyrighted work, to prepare
derivative works, to distribute copies or phonorecords of the
copyrighted work, to perform the copyrighted work publicly, to
display the copyrighted work publicly, and to make derivative
works. The copyright protects the form of expression rather than
the subject matter of the writing. For example, a description of
a machine could be copyrighted, but this would only prevent
others from copying the description; it would not prevent others
from writing a description of their own or from making and using
the machine. Copyrights are registered by the Copyright Office
of the Library of Congress.
What is a Trade Secret?
A trade secret must be a secret. Although
arguably weaker than patents and copyrights, if you decide not
to obtain a patent or copyright registration, or your invention
is ineligible for patents, you can use trade secrets.
Unlike other forms of intellectual
property, trade secrets are protected by State law rather than
federal law. Among the States, Texas does not follow the
majority rule, that is, the Uniform Trade Secrets Act. Instead,
Texas still follows the minority rule, which, at one time, was
the majority rule.
In Texas, a "trade secret" is any form,
pattern, device or compilation of information that is not
generally known and gives your business an advantage over
competitors. Typical trade secrets include proprietary software,
hardware, or tools, engineering drawings, recipes or methods,
even customer lists - almost anything you keep secret that would
be valuable to a competitor.
Although no method exists to "officially"
protect trade secrets, you can prevent others from using
misappropriated trade secrets. Generally, to find
misappropriation, the owner of the trade secret must control
access to the secrets and have taken reasonable steps to ensure
that your secrets remain confidential, such as through the use
of express confidentiality and nondisclosure agreements.
And, how do I choose what I need?