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what is the difference between a patent, a trademark and a copyright?

Considering how complex intellectual property law can be, it is understandable that many people – including authors, journalists, biz and tech bloggers, tweeple. etc. – confuse the terms and oftentimes speak/write of “patenting a book” or “copywriting a new gadget”.  I also receive a large number of requests asking for advice on how to “copyright an idea” – so, I thought it would be helpful to lay out a short and concise explanation of each area of intellectual property law.

First, what do I mean by the term “intellectual property”?  According to Tech Terms Online :

“Intellectual property refers to the ownership of intangible and non-physical goods.  …  Since intellectual property is intangible, it is more difficult to protect than other types of property.”

While this is a fairly reasonable definition, I prefer to use a more shorthand version: “Intellectual property is something that is created by the mind.”  Typically, we think of ideas as being created by the mind – but intellectual property does not protect bare ideas: rather, it is the expression or symbolic power/recognizability of the ideas that are protected.

Thus, it is the design of the rocket that is patented, not the idea of a rocket.  It is the painting of the lake that is copyrighted, not the idea of a lake.  And it is the consumer recognizable logo that is trademarked, not the idea of a logo.  Intellectual property protects how we express and identify ideas in concrete ways – not the idea itself.

In particular:

  • Patents. protect functional expressions of an idea – not the idea itself.  A machines, method/process, manufacture, compositions of matter, and improvements of any of these items can be patented.  Thus, I can patent a design for the nozzle on a rocket, or the method of making the rocket, or the method of making the rocket fuel, or the metal in which the rocket fuel is stored, or a new way of transporting the rocket fuel to the rocket.  But I cannot patent the broad “idea” of a rocket.
  • Copyrights. protect the specific creative expression of an idea through any medium of artistic/creative expression – i.e. paintings, photographs, sculpture, writings, software, etc.   A copyright protects your painting of a haystack, but it would not prohibit another painter from expressing their artistry or viewpoint by also painting a haystack. Likewise, while Ian Fleming was able to receive a copyright on his particular expression of

    the idea of a secret agent (i.e. a debonair English secret agent), he could not prevent Rich Wilkes from receiving a copyright on his expression of the idea of a secret agent (i.e. a tattooed bald extreme athlete turned reluctant secret agent ).

  • Trademarks. protect any symbol that indicates the source or origin of the goods or services to which it is affixed.  While a trademark can be extremely valuable to its owner, the ultimate purpose of a trademark is to protect consumers – that is, the function of a trademark is to inform the consumer where the goods or services originate.  The consumer, knowing the origin of the goods, can make purchasing decisions based on prior knowledge, reputation or marketing. 
  • While each category is distinct, a product (or components/aspects of a product) may fall into one or more of the categories.  For example, software can be protected by both patents and copyrights.  The copyright would protect the artistic expression of the idea – i.e. the code itself – while the patent would protect the functional expression of the idea – e.g. using a single click to purchase a book online.  Likewise, it is likely that the software company will use a trademark to indicate who made the software.

    An additional example would be a logo for a company.  The logo may serve as a trademark indicating that all products affixed with the logo are from the same source.  The creative and artistic aspects of the logo may also be protected by a copyright.

    The complexity of intellectual property protection increases exponentially during the life cycle of innovation, research, product development, etc.  A single product may contain, for example, more than one patentable feature, one or more creative or artistic expressions that may be protected by copyright, and one or more trademarks indicating the source of the product.  All of these points of intellectual property provide an opportunity for protection and/or an opportunity for infringement of a third party’s intellectual property.

    So – while it is simple and straightforward (well, mostly) to differentiate between the different aspects of intellectual property, it is a more difficult process to implement a strategic path forward and determine which type(s) of intellectual property protection are appropriate/desirable.

    I am sure that PHOSITA readers will quibble, argue and debate me to death on the above-referenced “short hand” guides to intellectual property.  Drop your thoughts/short hand (keep it clean) into the comments.

    Category: Forex

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