23.2: Intellectual Property
Intellectual Property is a form of intangible property representing the commercially valuable product of the human mind. IP can be in either an abstract or concrete form. For example, a composer may have IP interests to both the abstract sound of the music he or she composed, as well as the concrete sheet music that instructs musicians how to play the musical composition.
Protection of IP rights generally fall into one of four categories: patents, trade secrets, copyrights, and trademarks.
| Patent | Trade Secret | Copyright | Trademark | |
| Protects | Inventions & methods | Valuable secrets that give a business a competitive advantage | Tangible expression of an idea; but not the idea itself | Words & symbols used to identify products or services |
| Elements | Novel & non-obvious | Distinctiveness | Original expression | Reasonable measures in place to protect secrecy |
| Filing Requirements | Application must be approved by USPTO | Information must be kept secret but no formal process is necessary | Protection is automatic once creative expression takes tangible form; does not have to be filed with the CO but receives greater protection if it is | Mark is used in commerce; does not have to be filed with USPTO but receives greater protection if it is |
| Duration | 20 years (14 years for a design patent) | Forever, as long as information is kept secret | 70 years after death of author, 95 years from publication, or 120 years from creation (whichever is shorter) | 10 years but can be renewed an unlimited number of times as long as mark is still being used |
| Type of Law | Federal only | State (Economic Espionage Act may provide some federal protection depending on facts of case) | Federal only | Federal and state |
| Type of Enforcement Action | Infringement | Misappropriation | Infringement | Infringement & dilution |
| Criminal Liability | No | Yes | Yes | Yes |
| Expensive | Yes | No | No | Maybe (depends on policing costs) |
| Search Required for Existing IP Holders | Yes | No | No | Yes |
Different types of IP may attach to aspects of the same product or service. For example, Coca-Cola has trademarks for its name and logo, a patent for the shape of its original glass bottle, a copyright for its commercial jingle, and a trade secret for its cola recipe.
Figure 23.1 Examples of Coca-Cola trademarks