25 Jan 2018
Last year, we published a post that discussed the difference between a patent and a trade secret.
Since then, we’ve been asked to take a deep dive into the differences between patents, trademarks, and copyrights — the other common types of intellectual property (IP) protection relevant to high-tech companies.
Depending on your business model and how you plan to commercialize your ideas, you may need to pursue different types of protection in order to protect your rights.
In this post, we’ll discuss when you should pursue patents, trademarks, or copyrights — and whether it’s worth seeking multiple forms of IP protection.
WHAT IS A PATENT?
Patents give you the right to exclude others from making, selling, using or importing a particular product or service, in exchange for full public disclosure of your invention.
WHAT CAN WE PROTECT USING A PATENT?
To obtain a patent, your invention must meet the legal requirements for patentability. In the United States, this is defined as:
- Patent-eligible subject matter: A “process, machine, manufacture or composition of matter”
- Novel: Different from all prior art
- Useful: Functions as claimed to benefit the public
- Non-obvious: More than a trivial variation of prior art
HOW DO WE OBTAIN A PATENT?
In order to gain legally enforceable rights in the United States, you must submit a patent application through the USPTO — and the USPTO must approve your application.
You cannot be issued a U.S. patent if you don’t file a patent application through the USPTO, or if the USPTO doesn’t approve your application through its patent examination process.
HOW LONG IS PATENT PROTECTION GOOD FOR?
Patents are generally enforceable for up to 20 years, if you pay all associated maintenance fees. Patents cannot be extended beyond this 20-year period.
WHAT IS A TRADEMARK?
Unlike patents, trademarks are not concerned with the functionality of a product. Instead, trademarks give you the right to prevent others from unfairly competing with you by using “confusingly similar” marks.
WHAT CAN WE PROTECT USING A TRADEMARK?
Trademarks are used to identify the source of a product or service, or to differentiate the source of the product or service from others. These identifying marks may include words, phrases, symbols, logos, or other devices.
In other words, trademarks can be used to protect a representation of:
- The product or service itself
- A feature of the product or service
- The provider of the product or service
HOW DO WE OBTAIN A TRADEMARK?
Trademark rights are fundamentally tied to use of the trademark in commerce. You can register a trademark with the USPTO (before or after you use the trademark) — but there is also no legal requirement to register.
If you don’t register, you can still have some degree of protection through common law trademark rights, such as:
- Use of the ™ (TM) symbol for goods, and the ℠ (SM) symbol for services
- Exclusive rights in the specific geographic territories where you’re actually using the goods or services
- Injunctive relief against infringing parties (such as a cease-and-desist order)
But if you do register your trademark, you’ll gain an added degree of legal protection, such as:
- Use of the ® symbol
- Exclusive rights to use the mark on or in connection with the goods or services that you registered
- A legal presumption of ownership nationwide
- A public notice asserting your ownership of the mark
- Financial compensation in the event of infringement (such as damages and attorney fees)
HOW LONG IS TRADEMARK PROTECTION GOOD FOR?
Registered trademarks are valid for an unlimited period of time, but a U.S. registration must be renewed every 10 years.
WHAT IS A COPYRIGHT?
The authors of copyrighted work have the exclusive right to reproduce, publish, perform, display, or record the creative work, and also to create derivative works from the original.
WHAT CAN WE PROTECT USING A COPYRIGHT?
Generally speaking, copyrights protect original works of creative expression that have been fixed in a tangible medium. It’s important to emphasize that copyrights do not protect ideas — only the tangible form of the ideas.
While they’re usually used to protect artistic output, copyrights can also protect technical work product such as software and product manuals.
HOW DO WE OBTAIN A COPYRIGHT?
You automatically gain copyright protection when the work is fixed in tangible form, either directly or through the use of a machine (such as a computer or camera).
Consequently, copyright registration is optional but highly recommended, and is done with the U.S. Copyright Office. Registering your copyright gives you added legal benefits, like the ability to enforce the copyright against infringers in court.
Copyrighted works (whether registered or unregistered) may display the © symbol.
HOW LONG IS COPYRIGHT PROTECTION GOOD FOR?
Copyrights in the U.S. are generally valid for a term equal to the life of the author plus 70 years.
But if a company is the owner of the copyright, then the copyright is typically valid for 95 years after the date the work is first made public, or 120 years from the date when the work was created (whichever is shorter).
IN SUMMARY: HOW PATENTS DIFFER FROM TRADEMARKS AND COPYRIGHTS
For easier reference, we’ve summarized the key differences between patents, trademarks, and copyrights in the table below.
|What’s protected?||A patent-eligible invention that is novel, useful, and non-obvious||Any word, phrase, symbol, logo, or other devices that differentiates the source of goods or services from others||Original works of creative expression that have been fixed in a tangible medium, such as artistic output or technical work products|
|What rights are we afforded?||Right to exclude others from making, selling, using or importing a particular product or service||Right to prevent others from unfairly competing with you by using “confusingly similar” marks||Right to exclusively reproduce, publish, perform, display, or record the creative work, and also to create derivative works from the original|
|Do I have to register in order to gain this protection?||Yes; you must file a patent application||Registration is not required, but it offers you added legal benefits||Registration is not required, but it offers you added legal benefits|
|Who do I register with?||USPTO||USPTO||U.S. Copyright Office|
|Do I need to renew my registration periodically?||For the patent to remain in force for the full 20-year period, maintenance fees are due after 3.5, 7.5, and 11.5 years||Every 10 years||No|
|How long is the term of protection?||20 years||As long as the mark is being used in commerce||Author’s life plus 70 years; but if owned by a company, then 95 years after the date the work is first made public|
WHICH SOURCE OF IP PROTECTION IS RIGHT FOR MY BUSINESS?
Each type of protection is distinct. Often, a single product is covered by many forms of IP protection.
In other words, your product might contain patentable features, creative expressions that can be copyrighted, and trademarks of the company that produced it.
The following examples illustrate how this works:
- Software: You can patent its functionality, trademark the name or logo of the company producing the software, and copyright the code itself.
- Company logo: You can trademark the logo itself (as it indicates the source of the company’s products and services), and copyright the creative and artistic aspects of the logo.
- Laptop: You can patent the computer technology itself, trademark the brand that’s producing the laptop, and copyright the code for the laptop’s operating system.
For technology companies, particularly early-stage startups, patent protection is usually the most important, as it prevents your competitors from exploiting similar technology.
But when you’re close to having a product on the market, you will definitely want to think about seeking copyright and trademark protections in order to differentiate your brand.
For example, startups might want to consider registering copyrights in their website or marketing materials. It’s also a good idea to do a trademark clearance search before you invest too much in the name of a particular product or service.
SHOULD PATENT PROTECTION BE PART OF OUR IP STRATEGY?
Understanding the differences between various types of IP protection can help you craft an appropriate strategy to ensure your business maintains a competitive edge in the long run.
Our free checklist will help you to determine if you’re really ready to begin pursuing patent protection for your invention. Download it now!
IS IT TIME TO START BUILDING YOUR PATENT PORTFOLIO? WE’LL HELP YOU FIND OUT!
When you’ve got game-changing technology on your hands, you can’t wait to share with the world — which also means protecting it from competitors.
But is now the right time to start moving forward with the patent process? Download our FREE checklist to find out. Learn the following:
- What does a patent really do?
- Does your invention have substance?
- Do you have all the necessary resources lined up?
- Is your business structure — and all the logistics — ironed out?
- How should you proceed if you’re not quite ready to begin the patent process?
Dive deep into the patent process and get all your IP readiness questions answered.
Fill out the short form on this page to download this checklist today!
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Michael K. Henry, Ph.D.
Michael K. Henry, Ph.D., is a principal and the firm’s founding member. He specializes in creating comprehensive, growth-oriented IP strategies for early-stage tech companies.