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Intellectual Property Primer

Date:
Wed, Oct 20th, 2010

Article:
Patents, Trademarks, and Copyrights are three types of intellectual property protection. They all differ and serve different purposes. Patents protect inventions, and improvements to existing inventions. Trademarks and service marks include any word, name, symbol, or device, or any combination thereof, used to indicate and identify the source of goods/services. Copyrights protect literary, artistic, and musical works. Trade Secrets are a fourth type of intellectual property and protect confidential information that provides an economic advantage to one party over another.

Patents

A patent for an invention is a grant of property rights by the U.S. Government through the U.S. Patent and Trademark Office. The patent grant excludes others from making, using, or selling the invention in the United States for a limited duration.

A utility patent may be granted to one who invents or discovers any new and useful process, machine, article of manufacture, compositions of matter, or any new useful improvement thereof. A design patent may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. A patent cannot be obtained on a mere idea or suggestion.

Trademarks

A trademark includes any word, name, symbol, or device, or any combination thereof used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name or source identifier. A service mark is the same thing, but indicates the source of services provided rather than goods sold. The distinction is mostly one of semantics.
Federal trademark registration has several benefits:
Constructive notice nationwide of the trademark owner's claim.
Evidence of ownership of the trademark.
Additional claims may be invoked and possible heightened damages/attorneys fees are available.
Registration can be used as a basis for obtaining registration in foreign countries.
Registration may be filed with U.S. Customs Service to prevent importation of infringing foreign goods.
May use the federal registration symbol "" to inform others of the mark's registered status.

Use of the superscript TM or SM symbols does not necessarily extend any legal rights to the owner, but is recommended to put third parties on notice that one considers that word or symbol as a proprietary mark. The federal registration symbol, the R enclosed within a circle , may only be used once the mark is actually registered in the USPTO.




Copyrights

A Copyright is a form of protection provided to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly. For works created by individual authors on or after January 1, 1978, copyright protection begins at the moment of creation and lasts for a period of 70 years after the author's death.

The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a different description of their own or from making and using the machine (the latter would fall under the scope of patent law). Copyrights are registered by the Library of Congress' Copyright Office.

Trade Secrets

A "trade secret" is anything which the disclosing party desires to keep secret. This may include a formula, process, or virtually any other information that is the subject of reasonable efforts to preserve confidentiality and that provides an advantage to one's business.

In Illinois, a "Trade secret" is statutorily defined as "information, including but not limited to, technical or non technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, that:

(1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality."

To state a claim for relief under the Illinois Trade Secrets Act ("ITSA"), a party needs to allege that the (1) information at issue was a trade secret; (2) the opposing party misappropriated it; and (3) used it in its business.





Boris Umansky
Leydig, Voit & Mayer, Ltd.
(312) 616-5600
bumansky@leydig.com
www.leydig.com