Small Business Matters

[#1]

Intellectual property protection is a critical part of a small business owner’s current and future growth strategy.

According to the U.S. Patent and Trademark Office’s stopfakes.gov Web site, companies that protect their intellectual property drive more economic growth in the U.S. than any other single sector.

The unfortunate flip side of this fact is that small businesses are more vulnerable than any other sector to piracy, counterfeiting, and the theft of their intellectual property. Small business owners oftentimes simply don’t have access to the intellectual property protection know-how that larger corporations do.

If you are self-employed or are a small business owner, and need a command of the process of intellectual property protection, below is a summary of the basics as well as links to other resources that can help set you on your way.

Understanding the Difference between Patenting and Other Forms of Intellectual Property

There are essentially three forms of intellectual property: patents, trademarks, and copyrights. Each has a distinct definition and relevance to the small business owner looking to protect inventions, brand, or intellectual works:

• Patents - A patent for an invention is the grant of a property right to the inventor. Patents are granted for new, useful and non-obvious inventions for a period of 20 years from the filing date of a patent application, and provide the right to exclude others from exploiting the invention during that period.
• Trademarks - A trademark is different to a patent since it only protects words, names, symbols, sounds, or colors that distinguish goods and services. Trademarks, unlike patents, can be renewed forever as long as they are being used in commerce.
• Copyright - The Library of Congress registers copyrights, which last for the life of the author plus 70 years. Books, movies and musical recordings are all examples of copyrighted works.

How to Apply for a Patent

There are three types of patents that you can apply for based on the nature of your invention - utility patents, design patents, or plant (of the green variety) patents. A useful starting point is to find out what can and cannot be patented. The U.S Patent Office can help with this here.

To get a patent you will need to process an application with the U.S. Patent and Trademark Office. This is a complex process, and almost all experts recommend that patent-seekers retain the services of a registered patent attorney or patent agent to prepare and prosecute their applications.

A great single resource for information on applying for a patent is Business.gov’s Small Business Guide to Intellectual Property. It includes information on how to get a patent, a detailed explanation of types of patents, FAQs, and information on the patent application process.

How to Register Your Trademark

If you want to stake a claim on your trademark through the use of the "TM" (trademark),"SM" (servicemark) or the "?" federal registration symbol, you’ll need to follow these steps:

1. Determine whether your product is eligible for a trademark
2. Conduct a trademark search
3. Register for the trademark online (for a fee) via the Trademark Electronic Application System.

For a step-by-step guide to filing a trademark application, FAQs and more, refer to Business.gov’s Small Business Guide to Intellectual Property.

Patents, Trademarks and Overseas Markets

Only 15 percent of small businesses that do business overseas realize that a U.S. patent only provides protection in the U.S. Below are the basics about intellectual property protection in overseas markets:

• Overseas Patents - Almost every country has its own patent law and you’ll need to follow the patent application process within the country in which you wish to protect your invention. Find out more about filing for an overseas patent here .
• International Trademarks - You can file for trademark registration, via a single application, in certain countries (defined by the Madrid Protocol) only if you are already a qualified owner of a trademark application pending before the U.S. Patent Office. If you want to protect your trademark overseas you’ll need to file for international trademark protection. Get more information here from Entrepreneur.com

Copyright Law

If you want to protect "original works of authorship" such as music, books, screenplays, etc. copyright law can protect published and unpublished works against illegal reproduction, distribution, performance, etc.  Get more information on the copyright process here.

Other Resources

• "Inventor’s Resources" - Information on patents, trademarks, scams, and the complaints process from the U.S. Patent and Trademark Office.
• U.S. Patent Office - More than just insight into intellectual property law, this site provides guides, tools, FAQs, and more.  
• StopFakes.gov/SmallBusiness - Intellectual property information specifically for small businesses.

[#2]

Very informative article Jennifer.  Thanks for posting.

Do you have knowledge about "Exclusivity" rights?  Thank you...

All the best,

Tim

tim.hatcher@ori-usa.com

[#3]

Tim,

Below is some information from buyusa.gov and wikipedia that might be helpful.  It seems that copywright covers exclusivity.   See below.

From Buyusa.gov:  http://www.buyusa.gov/harrisburg/ipr.html

 

Copyrights: A copyright protects original works of authorship. In the United States, this protection gives the owner the exclusive right to reproduce, prepare derivative works, distribute copies, or perform or display the work publicly.

 To learn more about trademarks, visit the USPTO website⁶ or call the Trademark Assistance Center at 1-800-786-9199 or (703) 308-9000. You can also file a trademark application electronically using the USPTO Trademark Electronic Application System (TEAS)⁹. From Wikipedia:

Intellectual property

Most governments recognize a bundle of exclusive rights in relation to works of authorship, inventions, and identifications of origin. These rights are sometimes spoken of under the umbrella term "intellectual property." An example is copyright, which grants a copyright holder a negative right to exclude others from exploiting their artistic or creative work. The position is generally similar with patents and trademarks. Exclusive rights arise from a grant of patent or registration of a trademark, while in other cases such rights may arise through use (eg. copyright or common-law trademark).

Holding an intellectual property right generally means that the rights holder can maintain certain controls in relation to the subject matter in which the IP right subsists. For example, a person who buys a copy of a computer program which is subject to copyright may use the software for personal use, but will probably be prohibited from creating or distributing copies of that software, subject to certain exceptions such as fair use or fair dealing, which vary widely from jurisdiction to jurisdiction.

[#4]

I agree with most of this article, but it is worth noting that there is one more area of intellectual property: trade secrets.  Trade secrets, in some cases, are preferred over patents because the inventor will not have to publish in the specification of a patent the "secret sauce".  

For this reason (among others) Coca-Cola protects the recipe to its cola under Trade Secret Law, rather than through patent law.  Under trade secret law, if the owner of those trade secrets makes reasonable attempts to protect that knowledge and does not disclose it to the public, then competitors may not be able to steal those secrets for their own use.  

Note that trade secret does not protect against reverse engineering.  In those rare cases where an inventor or a business has a "secret sauce", method, composition of material that may be difficult to reverse engineer, and which they may not want to divulge in a specification of a patent, Trade Secret law may be the way to go.

Los Angeles Patent Attorney 

[#5]

so is pepsi under trade law as well?  it taste almost the same as coke . 

[#6]

Pepsi infringing on coke's patent or trademark>? they definitely do taste almost similar lol

Well we must protect our online marks in anycase!!

-

Jay M

Aftermarket Journal.com

Message Edited by NicoleD on 09-08-2009 11:59 AM

[#7]

Pepsi and Coke have routinely challenged each other in court. In 2006, Pepsi sued Coke over its television ads for Powerade Option, a low-calorie sports drink. Coke settled out of court. In 2007, a federal judge dismissed a Coke lawsuit that charged Pepsi with patent infringement on a collapsible bag that dispenses syrup for fountain sodas.

[#8]

Thanks for pointing ou the difference between patent, trademark and copyright, I didn't know this

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[#9]

I always thought it would be too hard or costly to protect the IP in my internet marketing consultant business even though I knew the importance.

This article has given me some great tips thank you.

Message Edited by NicoleD on 08-26-2009 12:54 PM

[#10]

Just heard about patent by little, your article explanation it well. Now I have more knowledge abou patent.

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Message Edited by NicoleD on 09-02-2009 04:36 PM

[#11]

Thanks for the info. It was interesting to note that copyright lasts 70 years after the authors death.

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Message Edited by NicoleD on 09-08-2009 11:58 AM

[#12]

I love the article! information alot! This could help business people solve this piracy problem.

It also help me. Very Informative. I see the difference between those terms which are usually interchange.

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Message Edited by ZanetaB on 09-23-2009 11:53 AM

[#13]

very usefull and intresting article but does the 70 years still apply to music recordings?

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Message Edited by NicoleD on 09-30-2009 11:27 AM

[#14]

Good mention of Trade Secrets as a 4th form of Intellectual Property.  One major difference between trade secrets and the other 3 forms of IP mention in the article is that Trade Secret Laws are defined by the state, whereas Patents, Trademarks, and Copyrights are defined by federal laws.

As an example, here in Mississippi, Trade Secrets are defined by the MS Code of 1972 Chapter 26 Title 75 

http://www.mscode.com/free/statutes/75/026/index.htm

Here is what how the laws in Mississippi define a trade secret:

"

(d) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique or process, that:

(i) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and

(ii) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."

Trade Secret laws may vary from state to state. 

[#15]

Here's a good question:

How do you register a Trade Secret?????

At least in MS, you don't register it!  It is protected by law as long as it remains a secret and you are doing everything possible to protect it and the secret has some financial value.

Since the laws vary state to state, it may be different in your state.

[#16]

Very Helpful Information. I enjoyed learning these points. Thank you.

Message Edited by ZanetaB on 10-05-2009 11:34 AM

[#17]

It may come as a surprise but small businesses hold more patents per employee than larger businesses.

Regards,

Michael Guilfoyle

ASP Hosting on Windows at M6.Net

Message Edited by ZanetaB on 10-06-2009 11:38 AM

[#18]

I used one of my suppliers "intellectual property" without asking them and got in trouble.  None of my other suppliers had a problem with it after 25 years, but it always makes sense to ask first.  I'm glad we didn't have more legal troubles.  Thanks for the article and the clarification of terms!

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Message Edited by NicoleD on 10-11-2009 11:18 PM

[#19]

Very interesting article. Will definitely be able to use this information for future situations.

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[#20]

Sound good. Good to read your posting. It may come as a surprise but small businesses hold more patents per employee than larger businesses. According to U.S. small business administration, the greatest number of patents per employee is held by the smallest firms – those with fewer than 25 staff members.

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