Optimize your intellectual property strategy by using a combination of patents, trademarks, copyrights, and trade secrets.
In theory, the different categories of IP (utility patents, provisional patents, design patents, copyrights, trademarks, and trade secrets) are distinct. However, in practice, these can somewhat overlap. Each is a type of IP protection tool. Maximize your intellectual property strategy by picking the right set of tools for the right situation.
Patents (utility patents) cover useful, original, and nonobvious ideas for gadgets, physical objects, compositions of matter (e.g., drugs), and the like. The USPTO carefully reviews these and requires that issued patents must be published. They can last for up to 20 years if you pay the maintenance fees.
Provisional patents are mostly a short-lived (1-year) first draft of a utility patent.
Patents (design patents) cover the ornamental appearance of a functional item. These also must be filed, reviewed, and ultimately disclosed to the public. These last for 15 years, maintenance fees not required.
Copyrights cover original written material, music, images, movies, and the like. These can last over a lifetime (e.g., the lifetime of the author plus 70 years) after initial publication. Registration not initially required, but eventually needed to enforce rights.
Trademarks cover the words, symbols, or packaging associated with certain classes of products and services in commerce. Registration, disclosure to the public, and review are required. These have no lifetime limit, so long as the owner periodically sends in proof of continued use in commerce.
Trade Secrets cover undisclosed commercially useful information not generally known to the public or trade. These can include unpatentable items such as recipes, as well as un-copyrightable items such as lists. No lifetime limit, provided that the secret does not get exposed.
Sometimes it is possible to improve your intellectual property strategy by handling the IP under multiple categories. Examples include:
- Using a non-publication request to keep the IP secret while pursuing a US patent
- Converting a utility patent drawing to a later design patent
- Protecting a user interface IP as a utility patent, design patent, and copyright
- Recording a distinctive design as both a design patent and a trademark
- Filing a distinctive image (or fragment of literature) as both a copyright and a trademark
There are some tricky aspects to the multiple category approach as well; these include:
- Cases where international IP rules are different from US rules
- Trying to use a provisional patent for a later design patent
- Shifting copyright (non-functional) vs patent (functional) and design patent (ornamental appearance of functional item) distinctions
- Competitors using your assertions for one IP category against another IP category
So “mind the gap,” but try to formulate an intellectual property strategy.