16 July 2021
by Oliver S. Bajracharya
Lewis Roca
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The term "intellectual property" is a bit like theterm "organic." Most people have some idea of what itmeans, but aren't exactly clear on the specifics.
Nearly every law student takes a class called"Property," which relates to laws and regulation of"real property," (i.e., land). One way that real propertyowners designate the boundaries of their land is by putting a fencearound it. If an unauthorized person enters the protected land, itis called trespassing. Similarly, intellectual property forms avirtual fence around the property it protects. If an unauthorizedperson crosses the fence, it is called infringement.
The three most common types of intellectual property arepatents, trademarks and copyrights, and they each provide differentand varying levels of protection.
Patents
Patents, specifically, utility patents as opposed to designpatents, protect inventions that are new and nonobvious overexisting technology known as prior art. An issued patent describesthe features of an invention and how it works in significantwritten and illustrated detail. Despite what may be described aboutan invention, a utility patent only protects what is claimed,(i.e., what is provided in the numbered sentences at the end of apatent). The claims form a virtual fence around an invention andallow the patent owner to prevent others from making, using orselling the invention protected by the fence without authorization.Generally, utility patents provide protection for 20 years from thedate of filing.
As an example of a claim, assume someone has invented the penciland has described their pencil in detail in the patent. A claim atthe end of the patent may recite "A writing instrumentcomprising an elongate body and a marking material protruding fromthe elongate body." If an unauthorized entity now makes, usesor sells a pencil that has these claimed features, the patent ownercould sue for patent infringement. Notice how the pencil claimcould also cover other writing instruments such as a pen or even atube of lipstick, both of which may have an elongate body and amarking material protruding from the elongate body.
Trademarks
Trademarks, commonly brand names and logos, are sourceidentifiers that are intended to protect the public from confusionabout the origin of goods and services. Trademark protection,unlike patent and trademark protection, can last forever providedthe trademark owner renews their protection at appropriateintervals. The mere mention of famous trademarks like Coca-Cola,Rolex and Honda immediately bring to mind not only particulargoods, but also characteristics and a certain level of quality,high or low, associated with those goods. When a consumer buys aRolex, the expectation is for the watch to operate with precisionas a fine piece of machinery and last a long time.
If an unauthorized user sells a watch with the Rolex name, buthaving characteristics and quality that are significantly lowerthan a genuine Rolex, a purchaser may be confused and may purchasethe counterfeit Rolex for a high price expecting it to be a Rolexwhen it is in fact of much poorer quality. While fewer peoplebuying a Rolex from a street vendor may be confused as to theexpected quality of that watch, there are reasonably high-qualitysuperfakes, which contribute to an estimated 40 million counterfeitwatches sold globally each year, the net profit of which is roughly$1 billion, according to TechCrunch.
Copyrights
Finally, copyrights protect works of authorship, such as novels,music and lyrics, paintings and software, among many others.Providing protection to authors fosters and induces creativity andoriginal ideas and allows those who create original works to profitfrom their works. Copyrights last for the life of the author plus70 years, or in cases of a work-made-for-hire, the shorter of 95years from publication or 120 years from creation.
With a significant amount of content being available seeminglyfor free on the internet, there are countless examples ofunauthorized users reproducing such content for their own benefit,only to have to pay substantial monetary damages to the copyrightowner who successfully enforces their rights. As a practical tip,when using someone else's creative work for your own purposes,think about what rights the author may have and whether you mayneed their permission to use their work. By proceeding blindly, youmay be taking an unnecessary risk of committing copyrightinfringement and may have to face the legal and monetaryconsequences that follow.
Originally published in L.A. BIZ
The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circ*mstances.
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As a seasoned intellectual property expert with a wealth of knowledge in the field, I can provide a comprehensive overview of the concepts discussed in the article dated July 16, 2021, by Oliver S. Bajracharya and Lewis Roca.
The article delves into the realm of intellectual property, drawing an analogy between the term "intellectual property" and the term "organic." The comparison highlights the commonality that people generally understand these terms broadly but may lack clarity on specific details. To elucidate, the author relates intellectual property to the legal principles governing "real property" (land) taught in a typical law class named "Property."
Intellectual property, as described in the article, creates a metaphorical fence around the protected property, akin to a physical fence around real property. Unauthorized access to this protected space is termed infringement, drawing a parallel to trespassing in real property cases.
The three primary types of intellectual property are elucidated as patents, trademarks, and copyrights, each offering distinct levels and forms of protection.
-
Patents:
- Definition: Patents, particularly utility patents, protect novel and nonobvious inventions over existing technology known as prior art.
- Protection: The claims in a patent form a virtual fence around the invention, allowing the patent owner to prevent unauthorized making, using, or selling of the protected invention.
- Duration: Utility patents typically provide protection for 20 years from the filing date.
-
Trademarks:
- Definition: Trademarks, encompassing brand names and logos, serve as source identifiers to prevent confusion about the origin of goods and services.
- Protection: Unlike patents, trademark protection can endure indefinitely, provided the trademark owner renews protection at appropriate intervals.
- Examples: Well-known trademarks like Coca-Cola, Rolex, and Honda evoke not just specific goods but also associated characteristics and a certain level of quality.
-
Copyrights:
- Definition: Copyrights safeguard various works of authorship, including novels, music, paintings, and software, promoting creativity and original ideas.
- Duration: Copyrights generally last for the life of the author plus 70 years, or in the case of works made for hire, the shorter of 95 years from publication or 120 years from creation.
- Protection Challenges: With abundant content available online, unauthorized reproduction may lead to substantial monetary damages for copyright infringement.
The article also offers a practical tip when using someone else's creative work—consider the rights the author may have and obtain permission to avoid potential copyright infringement risks.
In conclusion, the concepts discussed in the article provide a comprehensive understanding of intellectual property, its types, and the protective measures associated with patents, trademarks, and copyrights. This knowledge is crucial for individuals and businesses to navigate the complex landscape of intellectual property law and avoid legal consequences.
