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Intellectual
property law allows ownership of creativity and innovation, just as the
law allows ownership of physical property. Small business owners and individuals
working alone often find the task of seeking intellectual property (IP) protection
overwhelming. Patents, in particular, can be complicated, time-consuming, and
expensive. This effort and investment, however, are critical to turning good
ideas into successful businesses, as only the IP owner can legally control the
IP's use and receive compensation.
This section outlines the basic procedure required to secure
protection. In some cases, such as patents, a formal registration
process is required to secure legal protection. Copyrights, on
the other hand, offer legal protection and require no registration,
taking effect whenever there is a record in some form of what has
been created.
Patent, trademark, and service mark protection
Seeking patent protection for a new device, design, or process is the most expensive and time-consuming of the various categories of IP. Filing and search fees must be paid to the U.S. Patent and Trademark Office (USPTO). This filing is followed by a waiting period that can extend as long as two years or more, after which a patent may be granted.
There are several steps you can take to increase the chance that a patent, trademark, or service mark will be issued:
- Keep dated records—including detailed drawings and models—documenting
developments that lead to the invention. For details on documentation,
see the National Inventor Fraud Center's brief article, Recording
Your Invention.
- File a record-of-invention form as soon as possible. Subsequent
changes to the design can be documented in an additional record.
View a sample Record of Invention form (PDF
79 KB). Download
Acrobat Reader.
- Keep sketches and dated records establishing a timeline leading
up to the patent application.
- Only the people who contributed or conceived the invention
can apply for the patent. Therefore, "inventorship" must be clearly
established.
- Establish ownership of the invention. If the inventor is an
employee of an organization that funded the effort, that organization
may choose to retain its IP rights to the invention or assign
those rights to the inventor. This situation often involves negotiation.
In the event the inventor receives partial or sole rights to the
IP, this assignment of ownership should be well documented.
- Once it appears likely the product merits IP protection, contact
a patent professional—either an agent
or an attorney. The
process of obtaining IP protection does not require the use of
a professional, but in most cases, it greatly enhances the chance
of success. A true professional will also help the inventor
secure the broadest possible IP coverage for the innovation.
- Spend some time researching and documenting all "prior art,"
including articles, patents, and other evidence of innovations
developed previously, whether by you or other parties. There
is a one-year window in the United States for filing an application
following public disclosure.
The granting of the intellectual property right through patent, trademark or copyright allows the owner to enjoy the use of the product for the duration of the protection period. The owner of the right can choose to produce the product, license its production or use to others, or do absolutely nothing with the product.
Trade Secrets
The protection of trade secrets does not involve a formal application process
to a regulatory body. However, you must carefully document your secrets and
take measures to protect them in order to establish a paper trail. Should your
rights be violated and you choose to seek redress, you must be able to document
your trade secret and the steps you took to protect it in court.
Here are some guidelines for effective trade-secret protection:
- Identify and document the information considered valuable.
- Create and maintain records of the time, effort, and expense invested in the creation of the trade-secret information.
- Maintain physical security. A visible security system will help demonstrate the seriousness of protecting the trade secret.
- Keep confidential documents in a central location or off-premises to assure safety.
- As a matter of standard company practice, maintain written policy statements,
such as nondisclosure agreements and assignments of invention rights. All
company employees should sign them, and they should be updated regularly. See
a sample Nondisclosure Agreement (PDF
79 KB). Download
Acrobat Reader.
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