Intellectual Property or Copyright?

By Gasaway, Laura | Information Outlook, June 2001 | Go to article overview

Intellectual Property or Copyright?


Gasaway, Laura, Information Outlook


Intellectual property may be defined as legal protection for commercially valuable products of human intellect. It is a term that encompasses several distinct types of property: copyrights, patents, trademarks trade secrets and, in some jurisdictions, certain types of ideas. Librarians often use the term "intellectual property" when they really mean copyright. Each of these types of intellectual property has unique characteristics although there are some similarities among them. In contrast to real property, such as land, or personal property, such as an automobile, intellectual property is intangible. There is no physical object that comprises the intellectual property.

On the other hand, the intellectual property may be manifested in copies of a copyrighted work or in copies of a patented invention. But the property itself actually consists of the bundle of rights that the law awards the owner of the intellectual property.

Patents, trademarks and copyrights are the best known types of intellectual property, but trade secret law is also vitally important in the corporate world. Certain works, such as software, may qualify for more than one form of protection. A special librarian needs to know something about each of these.

Patents

Patents traditionally were awarded to inventors for the tools of industrial production. Known as "utility patents" this category includes machines, manufactures, compositions of matter (chemical inventions) and processes. Software, business methods and biotechnology are the fastest growing areas for new patents. In order to obtain a patent, an inventor has to invent something that (1) comprises patentable subject matter, (2) is original to that inventor, (3) is useful, (4) novel, and (5) nonobvious. The last three requirements are very stringent, especially nonobviousness. It is more difficult to qualify for a patent than for other forms of protection, but a patent also grants the broadest rights. In the United States, a patent lasts for 20 years from the date of filing the patent application. During the patent term the patentee has the right to exclude others from making, using, selling or offering to sell the patented invention. Even reverse engineering infringes a patent. One infringes a patent by engaging in any of these activities without permission of the patentee. The Patent Act of 1952 is the current statute and it comprises Title 35 of the United States Code.

Trade Secrets

A trade secret is a formula, pattern, device or compilation of information used in one's business to provide a competitive advantage. Chemical formulas, manufacturing plant processes, customer lists and computer programs have all been subject to trade secret protection. The range of subjects for which trade secret protection is available is much broader than that for which patent protection may be obtained. Often the subject of a trade secret is the same type of invention that might also qualify for patent but for some reason the owner of the secret has elected trade secret protection. Traditionally, trade

secrets were governed by state law, although there now is a federal Economic Espionage Act. Trade secrets are of potentially infinite duration, so long as secrecy is maintained. In fact, the primary requirement for a trade secret is secrecy. The right may be lost accidentally or lost by theft or breach of confidence. …

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