Patents, Trademarks, Service Marks, and Copyrights all fall under the general category of "intellectual property."  As the name implies, these things are indeed property and provide certain rights to their owners; however they are a special type of property known as intangible property.

Unlike tangible property such as real estate, furniture and automobiles, defending the owner's rights to intangible property is much more problematic.  What I briefly present here are some simple generalizations intended to make it less likely you'll misappropriate someone else's intellectual property and wind up on the wrong side of a lawsuit.

I am neither a patent attorney nor agent.  If you believe you may have a patentable item, you should consult a patent attorney immediately as your rights are time limited!

In order for something to be patentable, it must be new or "novel" and useful or have "utility."  Both things, processes and combinations may be patented.  The thing must be "reduced to practice."  That is actually created, although it may be a prototype rather than a production model.  One cannot patent an old idea, but one can patent an improvement on an old idea. Once the item is "reduced to practice" there is a limited time in which an inventor may apply for a patent.

Within the United States the Patent and Trademark Office ("PTO") grants patents under authority of Congress.  There is frequent tinkering with the exact rules, but a gross simplification is that a patent grants an exclusive right to the use, manufacture and sale of a patented thing for a period of about 20 years. While the rights are granted, it is up to the patent holder to defend the rights through civil process including the courts.

The exclusive rights may be sold, traded or licensed.  Duplicating a patented item or process without the owner's permission is forbidden.  A patent owner is under no obligation to allow use of a patented item or process, but the entire purpose of the patent system is to encourage disclosure of the technology so that when the patent expires, it is available to the world for use and improvement.

A trade secret is a little different.  A trade secret is essentially a patentable item or process that can be used in the stream of commerce without disclosure.  Probably the most famous trade secret is the formula for Coca-Cola®.  Rather than tell the world how it's made by patenting the formula, Coke® kept it a secret hoping that no one else can copy the flavor.  The difference is, everyone is free to try duplicating a trade secret but is strictly forbidden from knocking-off a patent.  (Coca-Cola and Coke are registered trademarks of the Coca-Cola Company.)

Protecting a trade secret requires strict internal controls.  Limiting disclosure to key personnel only and requiring strict confidentiality agreements for employees, contractors and vendors.  The law will only protect a trade secret from misappropriation through fraud or theft.

© William Hudnall 2011

You are here: Home Patents and Trade Secrets