what is the difference between a patent, a trademark and a copyright?

Considering how complex intellectual property law can be, it is understandable that many people – including authors, journalists, biz and tech bloggers, tweeple, etc. – confuse the terms and oftentimes speak/write of “patenting a book” or “copywriting a new gadget”.  I also receive a large number of requests asking for advice on how to “copyright an idea” – so, I thought it would be helpful to lay out a short and concise explanation of each area of intellectual property law.

First, what do I mean by the term “intellectual property”?  According to Tech Terms Online:

“Intellectual property refers to the ownership of intangible and non-physical goods.  …  Since intellectual property is intangible, it is more difficult to protect than other types of property.”

While this is a fairly reasonable definition, I prefer to use a more shorthand version: “Intellectual property is something that is created by the mind.”  Typically, we think of ideas as being created by the mind – but intellectual property does not protect bare ideas: rather, it is the expression or symbolic power/recognizability of the ideas that are protected. 

Thus, it is the design of the rocket that is patented, not the idea of a rocket.  It is the painting of the lake that is copyrighted, not the idea of a lake.  And it is the consumer recognizable logo that is trademarked, not the idea of a logo.  Intellectual property protects how we express and identify ideas in concrete ways – not the idea itself.

In particular:

  • Patents: protect functional expressions of an idea – not the idea itself.  A machines, method/process, manufacture, compositions of matter, and improvements of any of these items can be patented.  Thus, I can patent a design for the nozzle on a rocket, or the method of making the rocket, or the method of making the rocket fuel, or the metal in which the rocket fuel is stored, or a new way of transporting the rocket fuel to the rocket.  But I cannot patent the broad “idea” of a rocket.
     
  • Copyrights: protect the specific creative expression of an idea through any medium of artistic/creative expression – i.e., paintings, photographs, sculpture, writings, software, etc.   A copyright protects your painting of a haystack, but it would not prohibit another painter from expressing their artistry or viewpoint by also painting a haystack. Likewise, while Ian Fleming was able to receive a copyright on his particular expression of the idea of a secret agent (i.e., a debonair English secret agent), he could not prevent Rich Wilkes from receiving a copyright on his expression of the idea of a secret agent (i.e., a tattooed bald extreme athlete turned reluctant secret agent).  
     
  • Trademarks: protect any symbol that indicates the source or origin of the goods or services to which it is affixed.  While a trademark can be extremely valuable to its owner, the ultimate purpose of a trademark is to protect consumers – that is, the function of a trademark is to inform the consumer where the goods or services originate.  The consumer, knowing the origin of the goods, can make purchasing decisions based on prior knowledge, reputation or marketing. 

While each category is distinct, a product (or components/aspects of a product) may fall into one or more of the categories.  For example, software can be protected by both patents and copyrights.  The copyright would protect the artistic expression of the idea – i.e., the code itself – while the patent would protect the functional expression of the idea – e.g., using a single click to purchase a book online.  Likewise, it is likely that the software company will use a trademark to indicate who made the software. 

An additional example would be a logo for a company.  The logo may serve as a trademark indicating that all products affixed with the logo are from the same source.  The creative and artistic aspects of the logo may also be protected by a copyright. 

The complexity of intellectual property protection increases exponentially during the life cycle of innovation, research, product development, etc.  A single product may contain, for example, more than one patentable feature, one or more creative or artistic expressions that may be protected by copyright, and one or more trademarks indicating the source of the product.  All of these points of intellectual property provide an opportunity for protection and/or an opportunity for infringement of a third party’s intellectual property.

So – while it is simple and straightforward (well, mostly) to differentiate between the different aspects of intellectual property, it is a more difficult process to implement a strategic path forward and determine which type(s) of intellectual property protection are appropriate/desirable.

I am sure that PHOSITA readers will quibble, argue and debate me to death on the above-referenced “short hand” guides to intellectual property.  Drop your thoughts/short hand (keep it clean) into the comments.

(Photograph by Halima Ahkdar, used under Creative Commons license.)

Comments

Comments

*Machine's since it belongs to the machine.

Brilliant and simple article. It is informative and largely correct. I hope that you don't see this as being pedantic, but to me and others like me the article might lose credibility if improper grammar is used.

Thanks

Stuart

[...] For more information – see this blog post at PHOSITA® entitled “what is the difference between a patent, a trademark and a copyright?” [...]

[...] more information on the difference between patents, trademarks, and copyrights check out this PHOSITA blog post posted earlier last [...]

Thank you for the great article! I have a similar IP overview on my website. The overlap of the different varieties of IP protection make this an interesting analysis with plenty of idiosyncrasies involved. Of course, many businesses should seek a variety of IP protection mechanisms to cover all aspects of their operations.

http://www.innovativepatentlaw.com/intellectualprop.html

Thanks for your post. This clarified it for me quiet a bit.

[...] utility patent protects the functional expression of an idea while a design patent protects the ornamental design of a functional product.  A design patent [...]

Nice article! Lucid explanations for commonly confused terms..

By the way, visit the following link for the latest release on Green Technology IP initiatives:

http://www.bizjournals.com/orlando/prnewswire/press_releases/national/In...

My favorite misunderstanding of the differences came in a phrase that was something like, "I want to patent that trademark."
Although its not entirely accurate, I've expalained that an intellectual property lawyer helps you protect ideas. Most (ok many) ideas can be protected using patents, trademarks, copyrights or trade secrets.

I have a question : is the text and illustrations of a patent application protected by copyright ? More specifically, am I allowed to reproduce illustrations of patents on my blog ?
thank you

To all reading, what is the protection and profitability to a Trademark if it is a phase? Such as "The Real Thing" as used by the Coke a cola company

Doug, a clarification is in order in your explanation of copyrights. To those of us who are follicle-challenged, there is a clear and meaningful distinction between "bald" and "shaven."

Thanks for your comment, Tobias.

I respectfully disagree with your position and that of GNU.

I know that there are passionate positions on both sides of the discussion, but there is no reason that I am aware of that has convinced me that intellectual property should be treated any differently than real property.

This debate has been ongoing since the very early first patent grants - every new technology or technological niche believes that patents are terrible and have no place in "XYZ technology." The arguments are not typically not new -- just newly applied to a fresh field of innovation and discovery. For example, I would point you toward reading about Marconi's wireless telegraph discoveries and the raging patent debates at the time in England.

So, while I respect your passion and commitment to your principles, I must ultimately respectfully disagree with your conclusions.

Best,

Douglas

The confusion about all these different areas of law wouldn't exist if the term "intellectual property" wouldn't be used.

Everybody who uses this term has an interest in promoting the idea that these different areas of law can be seen as one, equating to traditional property like real estate or movable property.

As a professional software developer I object this. I absolutely agree with RMS:

http://www.gnu.org/philosophy/not-ipr.html

Please don't use the term "intellectual property" at all. It's not helpful.

[...] The Difference Between a Copyright, Trademark, and Patent Phosita explains this very succintly and very clearly. Considering how complex intellectual property law can be, it is understandable that many people – including authors, journalists, biz and tech bloggers, tweeple, etc. – confuse the terms and oftentimes speak/write of “patenting a book” or “copywriting a new gadget”.  I also receive a large number of requests asking for advice on how to “copyright an idea” – so, I thought it would be helpful to lay out a short and concise explanation of each area of intellectual property law. [via Phosita] [...]

Thank you for the links and comments, everyone. My blogging chops were a bit rusty - so, it was quite fun to see the response and great feedback on the post.

For the folks commenting re: branding - how true, how true.

I am always amazed at folks who come to us and state "I want a brand. Help me get a brand." Typically we understand the request to mean a trademark - but we then refer them out to branding experts and/or advertising folks. As lawyers we can help protect aspects of the "branding campaign or process" - but we don't typically create the brand. Heck - take a look at several of the trademark law firm's websites and you will quickly realize that branding and trademark law don't necessarily go hand in hand.

I also greatly appreciate Kyle's comments and the time it took to further flesh out my "shorthand". As he mentions, there are also design patents which protect non-functional aesthetic designs for products. Design patents are oftentimes overlooked and my failure to include them is simply an oversight on my part. Coupling a design patent with a configuration or trade dress trademark after the design patent expires can be a very effective strategy for protecting ornamental/configurations and non-functional design choices.

As far as acquisition of rights - the government must grant you a patent (i.e., it is a monopoly right granted to the holder only after examination).

Trademarks and copyrights are a bit different.

Trademark rights arise upon use of *any* symbol in commerce to indicate the source or origin of the goods or services. You don't have to register a trademark with the federal government -- i.e., TM and SM indicate that a mark is being used in a common law trademark sense, while R indicates that it is a federally registered mark -- there are, however, significant benefits in doing so, such as nationwide exclusionary rights, domain squatting issues, etc.

Copyrights also do not require a federal registration. As soon as you create something that meets the requirements of copyright protection (e.g., expression in a tangible medium), you have a valid and enforceable copyright in the material. You may register it with the Library of Congress and doing so is a prerequisite for bringing a lawsuit for copyright infringement. Registration also provides for statutory damages and it helps to increase the body of knowledge and history cataloged by the Library of Congress.

Length or duration - the only easy one is a trademark which can last indefinitely so long as the mark is in use.

Calculating the expiration dates of patents is more art (or rigorous legal training) than science these days due to various treaties, Patent Term Extensions, patent office delays, terminal disclaimers, etc.

The law starts with the proposition that patents *now* expire 20 years from the earliest claimed priority date - which is typically the date of filing but it may be an earlier date if there is a "parent" application for which priority is sought. You also have to be careful because patents filed before June 5, 1995 are entitled to either 18 years from issuance or 20 years from the earliest claimed priority - whichever is *longer*. And as mentioned, terminal disclaimers, patent term extensions, etc. can change the term of a patent. Finally, patent holders must pay maintenance fees at certain points during the life of the patent - 3.5, 7.5, and 11.5 years from issuance. In determining the life of a patent, one must consider whether the maintenance fee has been paid and, even if not paid, whether or not the abandoned patent can be "revived". It is confusing and difficult and I would highly recommend chatting with an attorney to get a solid understanding of the term of a patent if it is a question for you.

Copyright. The "snarky" answer is "who knows - what day is it?" Our firm uses a very complicated flow chart created in MindManager to calculate copyright expiration dates and the law is constantly changing. In general, if the work was published prior to 1923 it is in the public domain (although a new "interpretation" of the work may still be protected under copyright) and for anything that is published after 1923 - you should consult a copyright law professional as the rules, caveats and extensions can get quite confusing.

If you need to do some sleuthing quickly by yourself - a particularly helpful resource is a copyright flowchart published by Cornell University at http://www.copyright.cornell.edu/public_domain/.

Once again - thank you for stopping by, reading the post and, most importantly, leaving your comments, suggestions, criticisms, and insight!

Douglas

[...] Phosita has information on the differences between copyright, trademarks and patents. [...]

[...] copyright and trademark.  I’ll blog on this more soon, but for now, here’s a handy primer from the PHOSITA blog. ▶ Comment /* 0) { jQuery('#comments').show('', change_location()); [...]

I'm very impressed at this succinct, fairly easy-to-read description of the three main IP branches. Of course, as you and I both know, these categories are an oversimplification (after all, design patents protect the "aesthetic, non-functional" elements of a design, yet they're still patents, and courts don't often look to the amount of creativity required for something to be copyrighted.)

The few changes I would make, as a trademark practitioner, to your trademark entry, is that trademarks protect any symbol (whether words, images, colors, sounds, or in any medium perceptible by humans) that indicates source or origin from infringement by a junior user whose similar mark is likely to cause confusion or mistake as to the source, sponsorship, or affiliation of the goods or services.

I think I would also note the duration of each of these rights, and whether each right exists upon creation of the intellectual property in a tangible medium (copyrights) upon use in commerce of the IP (trademarks) or upon registration/granting by the government (patents).

[...] Source and Read More: dunlapcodding.com [...]

Great article. Non-experts may wish to take note that the term "intellectual property" is ambiguously overloaded, inasmuch as it is used to describe certain kinds of assets (inventions, brands, etc.) as well as the exclusionary ownership rights in those assets (patents, trademarks, etc.).

While it would be delightful if everyone carefully referred to IP ASSETS as distinct from IP RIGHTS, it seems likely that IP will continue to be used colloquially to describe the entire IP ontology.

-brent

[...] at  the Phosita Intellectual Property Blog, there is a good, if a bit simplified discussion of the differences between the types of [...]

Thank you for posting this! I'm a first-year law student looking to learn more about and possibly get into IP law, and this straightforward explanation is delightful.

This is a great. Most people do NOT know the difference. Since the differences are important, we need to educate. Branding is soo tied to these things and yet people know very little about any of them.

I would also note, for the non-IP law geeks, that a trademark is *not* a brand--but it is often an important part of _building_ a brand.

That, and I'm not sure with the PTO in the state it is today, that you couldn't get a patent on the idea of a rocket... :)

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