What are Patents, Trademarks, Copyrights, and Trade Secrets? And, how do I choose what I need?

Although there may be some similarities among patents, copyrights, trademarks, and trade secrets, they offer different kinds of intellectual property protection.

What is a Patent?

A patent is for an invention. In exchange for divulging the details of your invention, the United States grants a property right to the inventor in the form of a patent issued by the United States Patent and Trademark Office. A patent confers, in the language of the statute and of the grant itself, "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States or "importing" the invention into the United States; not the right to make, use, offer for sale, sell or import the invention. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in certain cases, from the date an earlier related application was filed. U.S. patent grants are effective within the United States, including its territories and possessions. Once a patent is issued, the owner of the patent, such as the patentee, licensee, or assignee enforces the patent.

An inventor can obtain a: (1) Utility patent for inventing or discovering any new and useful process, machine, article of manufacture, or compositions of matters, or any new useful improvement thereof; (2) Design patent for inventing a new, original, and ornamental design for an article of manufacture; and (3) Plant patent for inventing or discovering and asexually reproducing any distinct and new variety of plants.

Provisional patent applications offer inventors an inexpensive process (with respect to government filing fees) for obtaining a filing date or constructive reduction to practice for their inventions. Many provisionals are filed with the expectation of obtaining funding within a year so a utility patent application can be filed and prosecuted. However, the quality and completeness of the provisional patent application significantly affect the level of protection offered by such a filing.

What is a Trademark? And what is the difference between a Trademark and a Servicemark?

The term "trademark" or "mark" is often used to refer to both trademarks and service marks. The difference lies in the use of a mark. A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a good.

Trademark rights can prevent others from using a confusingly similar mark. Trademarks which are used in interstate or foreign commerce may be registered nationally and internationally. Otherwise, the trademark can be registered with the state within which the mark is used.

What is a Copyright?

Copyright is a form of protection provided to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, to display the copyrighted work publicly, and to make derivative works. The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.

What is a Trade Secret?

A trade secret must be a secret. Although arguably weaker than patents and copyrights, if you decide not to obtain a patent or copyright registration, or your invention is ineligible for patents, you can use trade secrets.

Unlike other forms of intellectual property, trade secrets are protected by State law rather than federal law. Among the States, Texas does not follow the majority rule, that is, the Uniform Trade Secrets Act. Instead, Texas still follows the minority rule, which, at one time, was the majority rule.

In Texas, a "trade secret" is any form, pattern, device or compilation of information that is not generally known and gives your business an advantage over competitors. Typical trade secrets include proprietary software, hardware, or tools, engineering drawings, recipes or methods, even customer lists - almost anything you keep secret that would be valuable to a competitor.

Although no method exists to "officially" protect trade secrets, you can prevent others from using misappropriated trade secrets. Generally, to find misappropriation, the owner of the trade secret must control access to the secrets and have taken reasonable steps to ensure that your secrets remain confidential, such as through the use of express confidentiality and nondisclosure agreements.

And, how do I choose what I need?