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What is Intellectual Property (IP)?
by Andrew H. Sargent, MbA, JD

Overview

Intellectual property (IP) consist of ideas, designs, technology, trade secrets or know how. In other words IP is information. You can give your IP away for free or you can sell it or you can use it and protect it.

The basic methods of protecting IP are:

• Patents
• Copyright
• Trademarks
• Trade Secrets Program and NDA's

This is a general information article and you should talk to an attorney who is familiar with IP programs and IP matters. IP is extremely valuable so it pays to be cautious. IP may be the most valuable property your business owns.

Patent
Patents are government granted monopolies. You disclose your invention and show people how to do what you did. In exchange the government gives you a monopoly and no one can use your invention without your permission. Once the patent expires the invention belongs to the public. In order to file for a patent you will work with a patent attorney. This is an attorney who is licensed to practice before the United States Patent and Trademark Office. (PTO) You may patent an invention, method or even a design. Software patents are being granted. You should talk to a Patent attorney before you (i) publish, (ii) publicly display, (iii) publicly use or (iv) offer for sale any product that contains your invention. All of theses actions have serious impacts on the patentability of your invention. If you ignore them you may find you are barred from receiving a patent.

Copyright
Copyrights protect works of art, designs and written works. Their purpose is to protect the creative work of the author. You have a copyright automatically whenever your create the work. However, you should always mark it with the copyright mark . This can either be the "©" or the word - "copyright" followed by the year and the name of the holder . Check with your attorney who will provide you with the proper form for you and your business.

Copyright covers software and books. However, it only covers the exact wording, not the plot or story line in a book or the functionality in software. Thus, in software you may also want to investigate patent protection in addition to copyright.

Trademarks
Trademarks are the marks that identify goods you are offered for sale. The history of trade marks traces back to the guild marks the craft guild halls put on goods in the Middle Ages. Modern examples of trademarks are Xerox, Apple, Macintosh, IBM or even Kleenex. When you use the mark, it is followed by a small "tm" if the mark is not registered. If the mark is registered at the PTO then it is followed by a ®. The rules of priority for registering trademarks are beyond the scope of this document but generally it is first in time for the class of goods that has the right. Registration will not always over come first use. Remember that a trademark is an adjective not a noun. It modifies the noun. That is why it is a "Xerox copy" or "Apple computer" or "Kleenex tissue.: It is never a Xerox or an Apple or a Kleenex.

Xerox, Apple, IBM and Kleenex are the trademarks of their respective companies

Trade Secrets
Trade Secrets (TS) are facts, information, know how, designs, inventions, business plans, financial plans, customer lists etc. that you keep secret and do not share. Most firms use Nondisclosure Agreements (NDA) whenever they show or discuss their technology or TS. The use of an NDA may also help protect the patentability of your inventions. You should work with an attorney that is familiar with NDAs and the high technology world. He can draft an NDA for your firm and also should be able to help you develop a full TS program which includes employee confidentiality agreements. NDA and employee confidentiality agreements are an extremely critical area for all high tech startups today.