Intellectual property (IP) is a broad term that encompasses intangible assets, which are things that are not physical but still hold significant value. This can include everything from inventions to brand names, logos, and creative works. As innovation and creativity become key drivers of economic growth, the importance of protecting intellectual property has grown. But it is pertinent to know what exactly can you patent, and how does it relate to intellectual property as a whole?
What is Intellectual Property?
In addition to being intangible assets, intellectual property often refers to creations of the mind but is often more complicated than that including even collective rights. When looked at from the perspective of creations of mind, they include inventions, artistic works, designs, symbols, brand names, etc. IP laws provide the legal protection necessary for these intangible creations, ensuring that their owners or owner-authorized personnel have exclusive rights to use, sell, or license them among other legally defined rights. The main goal of IP law is to encourage innovation by granting creators exclusive rights to their creations for a pre-determined and often fixed (not forever) period, allowing them to benefit financially and creatively in exchange for disclosure publicly via a deemed social contract.
IP rights, i.e., legally recognized rights granted to the IP assets can take various forms, including patents, trademarks, copyrights, and trade secrets. Each type of intellectual property right (IPR) protects different kinds of creations and manifestations of the human mind, and understanding these distinctions is crucial for securing the right type of protection.
Patents: A Key Form of Intellectual Property Protection
Patents are a central aspect of intellectual property law and are often considered the most coveted and sought-after intellectual property right. A patent grants the inventor exclusive rights to an invention for a specified period, which is usually 20 years from the date of filing of the patent application disclosing a particular invention. Patents are typically used to protect inventions that provide a new and useful process, machine, or composition of matter, which fulfils certain legal and procedural requirements in a particular jurisdiction granting said patent. There are two main types of patents as granted by the United States Patent and Trademark Office (USPTO):
Utility Patents: Utility patents may be considered the primary form of patents that protect inventions that have a specific function or utility, such as a new machine, process, or chemical composition.
Design Patents: Design patents are another type of patent that protects the ornamental design of a functional item, including the appearance, shape, or pattern of a product.
If an inventor’s invention falls under either of the aforementioned categories, one can apply for a patent with the USPTO or a patent office in another country that allows such patenting. However, patents must meet several criteria, including novelty, non-obviousness, and utility (for utility patents), or uniqueness in design (for design patents), which are further described and elaborated in other posts.
Choosing the Right Type of Patent: Utility vs. Design Patents
When an inventor comes up with a new invention, one of the most important steps in protecting their intellectual property is deciding which type of patent application to file. Patent protection is crucial because it grants the inventor exclusive rights to their invention and prevents others from making, using, or selling it without their permission. However, not all patents are created equal, and choosing the right type can depend on how one describes their invention.
In general, as introduced above, patents can be classified into two main types: utility patents and design patents. Understanding the difference between them and how each type of patent relates to the inventor’s invention is essential to determining which one provides the best protection.
Utility Patents: Protecting Functionality and Innovation
A utility patent is the most common type of patent, and in one form the other is allowable in various jurisdictions not just the USPTO, and it is usually granted to inventions that provide a new and useful process, machine, or composition of matter. When an inventor describes their invention in terms of its function or utility, a utility patent application is likely the best option.
For example, if an inventor has developed a new type of engine, a novel software algorithm, or an improved medical device, they would likely focus on the functionality and practical application of their invention. A utility patent would protect the way the product works and how it provides a solution to a specific problem.
To apply for a utility patent, one must submit a nonprovisional patent application to the USPTO. Briefly, this application includes a detailed description of the invention, often including diagrams or drawings that show how it operates. If one’s patent application is granted, one will have the exclusive rights to use, make, sell, or license their invention for 20 years.
It is important to note that the one-year rule applies to patents and provides such a grace period to the inventor from the first public disclosure without filing the provisional application. In other words, if an inventor starts selling or publicly disclosing their invention before applying for the patent, they will only have one year of so-called grace period from the date of the first public disclosure to file their application. After that year, that invention will become part of the public domain, and others can freely use it without the inventor’s permission.
Design Patents: Protecting Aesthetic Features
In contrast to utility patents, design patents protect the ornamental design of an invention, which is the way it looks rather than how it functions. A design patent is granted for new, original, and non-functional designs that provide a distinctive visual appearance. This might include things like the shape, surface ornamentation, pattern, or layout of a product.
If one describes one’s invention primarily in terms of its aesthetics, a design patent would be more suitable. For example, if one creates a stylish new smartphone case, a uniquely shaped chair, or an innovative fashion accessory, one would seek a design patent to protect the visual appearance of these items.
The application for a design patent typically requires a series of drawings that depict the ornamental features of the design. These drawings must clearly show how the design appears from various angles, as they are the main means by which the patent will be examined and granted.
A design patent lasts for 15 years from the date of issuance (for applications filed after May 13, 2015) at the USPTO. Unlike utility patents, which are primarily concerned with how an invention works, design patents are all about its look. However, this does not mean that design patents cannot be valuable. In industries like consumer electronics, fashion, and furniture, a unique and eye-catching design can be just as important as functionality in attracting customers and creating brand identity.
Sometimes, Both Types of Patents Can Apply
In some cases, one’s invention may possess both functional and aesthetic elements. For instance, consider a product that performs a specific function but also has a unique and attractive design. In this case, one may be able to seek both utility and design patents for the same product. For example, a new type of kitchen appliance may have a unique mechanical feature (covered by a utility patent) and an innovative appearance (covered by a design patent).
However, it is important to be mindful of the costs associated with filing multiple patent applications. Filing for both types of patents will require separate applications and fees, so it is essential to weigh the benefits and expenses before moving forward. If one has limited funds, it may make sense to focus on one type of patent that best protects the core aspects of one’s invention. Consulting a patent attorney or patent agent is recommended and can help an inventor decide whether to pursue both or just one type of patent protection.
When to Seek Professional Counsel
Choosing between a utility and a design patent can sometimes be tricky, especially if the inventor’s invention involves both functional and aesthetic elements. This is where seeking professional advice becomes invaluable. A patent professional can assess your invention in detail, helping the inventor understand which patent will provide the most comprehensive protection. They can also guide the inventor through the patent application process, ensuring that the inventor’s submission is thorough and meets all the requirements for approval.
An experienced patent lawyer will also help you navigate potential challenges in patenting your invention and provide insights into the broader strategy for protecting your intellectual property. Additionally, they can advise you on how to file both types of patents if you believe that both your invention’s functionality and its design warrant protection.
Thus, for you as an inventor, understanding the distinction between utility patents and design patents is crucial for any inventor seeking to protect their creations. If your invention is primarily innovative in its function and utility, a utility patent is likely the right path. If the invention’s value lies in its appearance and design, a design patent will offer the best protection. And if both aspects are important, seeking both types of patents could be the best approach.
Ultimately, the decision will depend on how you describe your invention, its key attributes, and your available resources. Consulting a patent professional will help you make the right choice and guide you through the process of obtaining the necessary protection for your intellectual property. Whether you choose a utility patent, a design patent, or both, safeguarding your invention is essential for ensuring that you retain control over how it is used and profited from in the marketplace.
Other Forms of Intellectual Property
In addition to the above, if you possess an intellectual property asset you need to understand that while patents are one of the most well-known types of intellectual property, other forms exist to protect different aspects of a product or business or your intellectual property, some of which include:
Trademarks: Trademarks protect brands, including names, logos, slogans, and even distinctive packaging, and help consumers identify and distinguish the source of a product or service. For example, Coca-Cola® has a trademark protecting its name and logo, a trade secret for its formula, and even a design patent for the shape of its iconic bottle.
Copyrights: Copyrights protect creative including, literary and artistic works such as books, movies, music, software, and other artistic creations. Copyright automatically exists as soon as an original work is created and fixed in a tangible medium of expression. Copyright law does not protect ideas, only the specific expression of those ideas.
Trade Secrets: A trade secret is any confidential business information that provides a competitive edge, such as a secret recipe or customer list, which is kept secret by the possessor of such information. Unlike patents, trade secrets do not require registration, and hence, in principle, your invention such as the aforementioned Coca-Cola® formula can be kept out of public disclosure as a secret perpetually. Trade secret protection lasts as long as the information remains secret, and they are protected through confidentiality agreements and by taking steps to keep the information secret.
Can Multiple Forms of Intellectual Property Protect One Product?
Yes, a single product or invention can be protected by multiple forms of intellectual property. For example, as aforesaid, a product like Coca-Cola® has a trademark for its brand name, a trade secret for its formula, a design patent for its bottle shape, and a copyright for the artwork on its packaging. This shows how different types of IP rights can work together to protect various aspects of a product or business.
Patent and Intellectual Property in Business Strategy
For companies, intellectual property is often one of their most valuable assets and it is not uncommon for intellectual property to be worth more than the company’s physical assets. Patents, for example, can provide a competitive advantage by preventing others from using an inventor’s creation for a set period. In industries like technology, pharmaceuticals, and manufacturing, patents are vital for maintaining market leadership and a competitive edge over competitors.
Moreover, intellectual property can be used as a revenue stream, where companies can license their intellectual property assets to others, allowing third parties to use the patented technology or trademark in exchange for royalties. This monetization of intellectual property can help businesses generate additional income without having to produce goods or services themselves.
The Importance of Securing the Right Type of Protection
Choosing the correct type of intellectual property protection is crucial for safeguarding your ideas. Failing to protect your intellectual property or choosing the wrong type of protection can leave your innovation vulnerable to theft or misuse by others. It is essential to work with professionals such as patent attorneys, patent engineers, patent illustrators, and trademark specialists, who can help determine the best course of action for protecting your intellectual property.
Conclusion
Intellectual property plays a significant role in today’s knowledge-based economy, and patents, trademarks, copyrights, and trade secrets are all essential tools as IP rights and assets for protecting creative and innovative work. While patents protect inventions and designs, other types of intellectual property safeguard different aspects of business and creative output, and hence it is pertinent to consider various aspects of your inventions and creations to check what aspect is amenable for patenting as an IP asset and what aspect should be protected by alternate IP rights. By understanding and utilizing these legal protections, individuals and businesses can ensure that their intellectual property remains secure and that they continue to benefit and monetize from their innovations and creations for years to come.
