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.)
Posted by Douglas Sorocco, January 11, 2009 at 10:03 pm
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tell us how you really feel
It is getting very “springy” here in Oklahoma and folks are getting a bit goofy – so, I guess it should come as no surprise that we have been chuckling about this snippet from my RSS reader tonight…
If you were wondering what this is about – have a read over at Politico for the full angst, political intrique, a bank heist, and patent rhetoric.
Posted by Douglas Sorocco, March 25, 2008 at 10:08 pm
Permalink: tell us how you really feel
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can the airlines taser you in your seat?
Maybe … Well, they probably don’t want to – but an inventor has developed a way to do so – all while you seat securely in your seat.
United States Patent 6,933,851
Hahne, et al. August 23, 2005Air travel security method, system and device
A method of providing air travel security for passengers traveling via an
aircraft comprises situating a remotely activatable electric shock device on each of the passengers in position to deliver a disabling electrical shock when activated; and arming the electric shock devices for subsequent selective activation by a selectively operable remote control disposed within the aircraft. The remotely activatable electric shock devices each have activation circuitry responsive to the activating signal transmitted from the selectively operable remote control means. The activated electric shock device is operable to deliver the disabling electrical shock to that passenger.
I just want to know who gets to us the “selectively operable remote control” – it may be a new revenue generator for the airlines. And while the initial drawings show it being worn on the wrist, the inventors have not limited it to such a configuration – for those of you looking for a nice choker necklace, they haven’t left you out in the cold.
I would be willing to spend up to $100 in order to be able to shock the SOB who decides to slam his seat back into my knees over and over… or… or…
Hmm – perhaps turning each flight into a lord of the flies situation isn’t such a good idea afterall.
I did breathe a sigh of relief, however – it doesn’t appear that the patent has been assigned to any airline. Whew…
[Via Sore Eyes, via Bruce Schneier, via Techdirt]
UPDATE: Well, it seems that while the airlines themselves do not appear to be interested in the device – there is a company developing the technology into an actual product – Lamperd Less Lethal. They have even put up a YouTube showing the benefits of the technology and how it can be used – complete with scary/serious voice over (warning, scenes of 9/11 shown):
And it appears that the Department of Homeland Security has “some interest” (entire PDF of letter (378 KB)):
In discussion with my colleagues and immediate superior, we find your ideas have merit and believe it would be of great help on the borders and indeed for anywhere else, for which the temporarily restraint of large numbers of individuals in open area environments by a small number of agents or Law Enforcement Officers (LEOs). We see the potential uses to include prisoner transportation, detainee control and the military security forces might have some interest. In addition, it is conceivable to envision a use to improve air security, on passenger planes.
So – you never know. In the near future, you could be wearing a choker and being tasered by some unknown “keeper of the device”.
Posted by Douglas Sorocco, March 23, 2008 at 8:58 am
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yet another Teenage inventor – false teeth for cats
So, it is turning out that today is interesting teenager inventor Friday at PHOSITA. This time we are thankful to Rachel Gilbert for developing feline false teeth.
Seventeen year old British college student Rachel Gilbert has reached the final of a national competition, the Ideas Igloo Roadshow, with her design for feline false teeth.
They look a little ghoulish, but have a noble purpose: “When animals suffer broken or rotten teeth, they have had to be removed,” Rachel told her local newspaper, The Sheffield Star. “The gum can become infected and they find it difficult to chew food. We aim to reduce animals’ suffering and improve their quality of life.” Local vets are already on board with the design, which was created after taking a mold from a cat with damaged teeth. This revolution in animal dentistry could also be extended to dogs and sheep.
Rachel and her team of eight now have two minutes to pitch their idea to a panel of American Inventor-style entrepreneurs for a chance to win £2000 (around $4000) to help launch their business.
Good luck Rachel! Just watch out so that you don’t become the “crazy cat lady” who lives at the end of everyone’s block.
Via: Teenager designs false teeth for cats (no, really)
Posted by Douglas Sorocco, March 21, 2008 at 6:51 pm
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Viva Las Vegas! IP CLE in Sin City…
Nipper, as usual, beat me to the punch in announcing a reunion of sorts for the Rethink(IP) guys in Las Vegas next month.
Namely, all three of us will be speaking (along with a host of other great IP panelists) at Dunes’ “Patent Drafting & Prosecution” CLE that is happening on April 11th, 2008 in shiny Las Vegas, Nevada.
The title of my sesion is “Current Issues in U.S. and Foreign Patent Prosecution” – specifically, I will be addressing:
As the world continues to become flatter, patent professionals in the United States are receiving increasingly complex requests from clients as to the patent procedures found in many foreign jurisdictions. As such, the U.S. patent professional must be able to quickly identify foreign patenting issues early and implement U.S. and foreign patenting activities in a coordinated manner. In Current Issues in U.S. and Foreign Patent Prosecution, Mr. Sorocco will discuss newly implemented U.S. and foreign jurisdiction rules and regulations that may impact U.S. based practitioners and the clients they serve. Representative topics include the current status of rule changes at the USPTO, the Hague Agreement on Industrial Designs, the London Protocol Agreement and the possibility of a European Community Patent.
I always appreciate the tips, tricks and insight that come from PHOSITA readers – so, feel free to send them my way.
Posted by Douglas Sorocco, March 14, 2008 at 9:28 pm
Permalink: Viva Las Vegas! IP CLE in Sin City…
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All New PatentFizz – The Good Stuff Always Rises to the Top
All around intellectual property and web wunderkind Matt Buchanan has taken his hugely popular PatentFizz site to the next level this past week – bold new colors, new layouts, and useful new content and tools.
According to Matt, on his summer vacation he has been anything but slothful:
You’ll notice right away that the site has been completely redesigned. It’s a bit easier on the eyes, you might say. The FizzDisplay pages present the abstract, claims, and bibliographic information in an attractive, easy to read format that loads quickly. The FizzDisplay is sweet, instant gratification.
The improvements are not just cosmetic, though. Nope….PatentFizz has an impressive slate of all new features designed to more effectively deliver patent-based information. I’ll be detailing these features on Fizzure, the PatentFizz blog, over the coming weeks, so be sure to subscribe to the RSS feed.
We failed to mention last month that PatentFizz was featured as part of the Economist magazine’s article on patent commenting, examination and intelligence sites.
Check it out and if you have some “scoop” on a particular patent and be sure to share it with the world!
Posted by Douglas Sorocco, October 3, 2007 at 9:28 pm
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New Blog to Check Out: Financial Aspects of Intellectual Property
One of my new favorite blogs is the Financial Aspects of Intellectual Property blog by the folks at the Innovation Asset Group.
According to their “about” page:
Innovation Asset is a leading provider of software for intellectual property (IP) and contracts management. Founded in 2002, we set out to design fresh solutions to the challenges today’s companies face in managing their intangible assets. We’ve quickly gained a national reputation for our flagship product, Decipher™.
So far, their blog has really been a fun and informative read – dealing with meta trends in intellectual property acquisition and valuation. As a sample to whet your appetite:
We are seeing an evolution – perhaps revolution. Not just in terms of the recognition of IP as the fundamentally core asset for businesses today; but also in terms of the way in which that IP is managed (I think “where” remains the same).
Initially, IP is managed out of the legal department. In a non-strategic mindset, IP management equates to docketing in some of these companies.
As companies embrace the strategic importance of IP and understand the need to move beyond simply docketing, there is an evolution of the role of the legal department. Much the way IT departments in corporate America evolved from a cost center and service provider to a strategic enabler of the business in the past couple of decades, legal departments are making a similar evolution today.
If you picture a pyramid similar to Maslow’s hierarchy of needs, and similar to the one described in “Edison in the Boardroom,” the bottom of the pyramid represents the least sophisticated IP companies, and the top of the pyramid the most sophisticated.
Well worth a read for anyone interested in intellectual property and what I would consider a “must read” for those within corporate intellectual property departments who must identify, protect and communicate the importance of intellectual property assets.
Sorry for the disruption in the middle of all the “Rules Mess” – we now return you to your regularly scheduled programming.
Posted by Douglas Sorocco, September 26, 2007 at 7:41 pm
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Dunes CLE – Vegas Legal Fun!
Dunes CLE has all the fun – all the while providing an informative and 
timely panel of experts on intellectual property matters. It can’t get much better than a little gaming, some sun, a beverage of your choice after a day of in-depth legal information.
Dunes’ Fall, 2007 seminar is rapidly approaching on October 12th at the Bellagio Hotel in Las Vegas. The theme of the conference is “Current Issues in Patent Law 2007″ and features a double helping of J. Matthew Buchanan updating everyone on Patent Law and Policy Updates from within the legislative, executive and judicial realm.
Other topics include:
- Inequitable Conduct After McKesson: Has The “Plague” Returned? – Thomas M. Hardman
- USPTO Claims and Continuation Practice Files Rules: Where Are We Now? – Mark Sandbaken
- Statutory Subject Matter in 2007 and Beyond – Robert Ryan Morishita
- The Supreme Court’s Decision in KSR v. Teleflex – Eric L. Maschoff
PHOSITA has been an avid fan of Dunes’ from the beginning – and, as they say, what happens in Vegas, stays in Vegas!
Posted by Douglas Sorocco, September 16, 2007 at 4:05 pm
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women inventors make it patentable
I really hate to admit where I found this information… I would love to be able to say while reading Forbes, but it was a bit less highbrow than that. No matter the source, the subject matter is truly fascinating: synergy occurs when inventive teams include women.
“If you want to create a really useful invention, make sure you have both women and men on your development team,” states writer Claire Cain Miller for Forbes. According to a survey by the National Center for Women and Information Technology, mixed-gender teams’ technology patents received up to 42% more citations that their single-gender counterparts.
“Our data show that diversity of thought matters to innovation,” says NCWIT Chief Executive Lucinda Sanders, who holds six telecom software patents. “We can say involving women is important because women are half the population and have good ideas, but our study shows the impact for companies.”
As pointed out by Jezebel, American women have been registering inventions for centuries: The first to receive a patent was Mary Dixon Kies, for a straw-weaving technique. In 1942, Hedy Lamarr (U.S. Pat No. 2,292,387) patented a “secret communications system.”
Today, women hold more patents in computer software than in any other category, but, unfortunately, fewer women are getting computer science degrees (a pattern that starts in elementary school, according to an NCWIT researcher).
I am extremely impressed with the information and resources over at the NCWIT website — well worth a look by anyone interested in getting more women interested in careers in information technology.
Posted by Douglas Sorocco, September 13, 2007 at 6:56 pm
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Labor unions join patent reform fight
This news report surprised me as I had never given much thought to the impact patent reform might have on the types of interests represented by Labor Unions. But it makes sense.
The U.S. patent system provides a barrier to entry for “knock offs” of successful technologies and, as stated below, a large percentage of patents are issued for inventions covering improvements to manufactured goods. Items that are highly susceptible to production offshore and imported into the U.S.
According to the AFL-CIO:
But the AFL-CIO letter alluded to recent efforts of the U.S. government and the U.S. tech industry to prod China to strengthen its intellectual property protections. These two changes “may have a negative impact on innovation and research,” the AFL-CIO letter said.
“At a time when the Chinese government is constantly being challenged to live up to its intellectual property obligations, we do not want to take actions that may weaken ours.” The United Steelworkers letter said nearly 70 percent of patents filed in the U.S. come from manufacturing firms. “These bills would allow an endless loop of legal challenges after patents are awarded that will make it more difficult for U.S. patent holders to prevail against frivolous challenges,” the letter said.
Patent reform is truly making some odd bedfellows these days.
Via Labor unions join patent reform fight – addict3d.org.
Posted by Douglas Sorocco, August 24, 2007 at 7:29 pm
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