Patently Obvious: Intellectual property basics
You’ve thought up the next best thing that could make you millions. That is, until you realize someone else beat you to it. What helps you succeed is knowing why it’s important to protect your intellectual property. Here’s what you need to know:
Why is intellectual property important?
Dickson Burton, patent attorney, says intellectual property is the most valuable portion of a business in today’s economy, yet many companies don’t know it can be protected as such. You add value to your company when you take steps to protect these ideas or products.
How do I know if I’ve got something worth protecting?
“Man, that’s a loaded question,” says patent attorney Wesley Austin. “It’s a hard question to ask in particular because it’s such a complicated question. If someone says, ‘Hey Wes! What’s patentable?’ I want to say, ‘Do you have six days?’ They always want the one-line answer.”
And there’s generally not a quick answer. Depending on whether you’re a seeking a patent, copyright or trademark, the rules are different.
First, ask yourself the difference between what you have and what is already out there. Then, determine how important that difference is to customers, says Austin. That generally can give you some indication of whether it’s worth your time to pursue.
What can you patent?
Austin says you can patent any new and useful product or process, which may or may not be tangible.
Burton says you can patent a novel idea. Simply put, it needs to be novel and nonobvious.
“That’s what the law requires,” he says.
Your intellectual property or idea might be patentable if it’s new, useful, has not been done or known before, and would not be obvious to people of ordinary skill in its field. “You’re actually creating property when you create a patent,” Burton explains.
What can you trademark?
You can trademark anything that can be used to identify a source of goods and service, Austin says. The name Google identifies the company Google, for example. The Coca-Cola logo established its trademark with a specific red and white color, and it identifies Coca-Cola as the source of the drink you’re enjoying.
What qualifies as a copyright?
If you’re turning up the volume on Austin’s favorite song, Thunderstruck by AC/DC, then you’re rocking out to something that went through the copyright process. A copyright protects an original artistic expression, such as a painting, song or piece of art.
What’s my first step?
Austin says your first step is searching for your idea online. It’s crucial to make sure you really have something different. “If you’re going to spend thousands of dollars, you may want to spend a few hours searching to make sure it’s really new.”
Can you buy it on Amazon, for example? Can you buy something similar? How similar?
Step two? Burton says you need to consult with an experienced intellectual property attorney. The attorney helps you take an inventory, understand your business, and teach you how to protect your intellectual property.
The first thing a patent attorney usually suggests is a “prior art search,” says Austin, which is a professional search done for your invention or idea. You can spend hundreds to thousands of dollars for that search but Austin says it’s worth doing.
What does “patent pending” legally mean?
Burton says this means you filed your application but it’s pending and not approved yet. While the patent is not yet actually issued, it acts as a notice or warning to competitors that your business actively is seeking patent protection.
What’s a common intellectual property myth?
Austin sees this often: You receive a letter claiming you’re infringing upon someone else’s patent. You downplay the letter and believe it’s easy to show the letter is invalid. Everybody thinks they can invalidate the patent easily, Austin says. But that’s much harder to do than people think.
“You should probably assume it’s valid instead of ignoring it,” he says.
Instead, clients think they can talk to anyone and get a legal opinion about the letter’s validity.
“I talked to the guy at Subway and he didn’t think the letter was any good,” Austin says laughing.