8.1 Patents, Copyrights, and Trade Secrets

Intellectual property rights are crucial for protecting innovations and creative works. Patents, copyrights, and trade secrets are key tools that allow inventors and creators to benefit from their ideas while promoting progress and innovation in society.

Understanding these forms of protection is essential for businesses and individuals in the modern economy. This topic explores the different types of intellectual property, their requirements, and the ways they can be enforced and limited.

Intellectual Property Types

Defining Intellectual Property

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• Intellectual Property (IP) refers to creations of the mind, such as inventions, literary and artistic works, designs, symbols, names, and images used in commerce
• IP is protected by law through patents, copyrights, trademarks, and trade secrets, which enable people to earn recognition or financial benefit from their inventions or creations
• IP rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary, or artistic productions

Types of Intellectual Property Protection

• Patent grants an inventor the right to exclude others from making, using, offering for sale, or selling an invention for a limited period (typically 20 years from the filing date), in exchange for disclosing the invention to the public
  • Examples of patentable inventions include new and useful processes, machines, manufactures, compositions of matter, or improvements thereof (light bulb, 3D printing technology)
• Copyright protects original works of authorship, such as literary works, music, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works
  • Copyright protection begins as soon as the work is created and fixed in a tangible form (books, songs, paintings, software code)
• Trade Secret is confidential information that provides a competitive advantage to a business, such as customer lists, manufacturing processes, or formulas, and is protected as long as it remains secret
  • Famous examples include the Coca-Cola formula and Google's search algorithm
• Trademark is a word, phrase, symbol, or design that identifies and distinguishes the source of goods or services of one party from those of others
  • Trademarks help consumers identify the source of a product or service (Nike swoosh, McDonald's golden arches)

Patent Requirements

Patentability Criteria

• Prior Art refers to all information that has been made available to the public in any form before a given date that might be relevant to a patent's claims of originality
  • Prior art can include previous patents, publications, public demonstrations, or products that predate the patent application
• Novelty means that an invention must be new and not already known or used by others in the country where the patent application is filed, or described in a printed publication anywhere in the world
  • An invention is not novel if it was publicly disclosed, used, or offered for sale more than one year before the patent application filing date (in the US)
• Non-obviousness requires that an invention must not be obvious to a person having ordinary skill in the art to which the invention pertains
  • This means that the differences between the claimed invention and the prior art must not be so trivial that a person with average skill in the relevant field could easily come up with the invention

Evaluating Patent Applications

• Patent examiners at the United States Patent and Trademark Office (USPTO) review patent applications to determine if they meet the requirements of novelty, non-obviousness, and usefulness
• Inventors must disclose their invention in sufficient detail to enable a person skilled in the art to make and use the invention without undue experimentation
• The claims section of a patent application defines the scope of protection sought by the inventor and must be carefully drafted to avoid being too broad (risking invalidity) or too narrow (providing insufficient protection)

Intellectual Property Protection

Enforcing Patent Rights

• Patent Infringement occurs when someone makes, uses, offers to sell, or sells a patented invention without permission from the patent holder
  • Patent holders can sue for injunctions to stop the infringing activity and for monetary damages to compensate for lost profits or reasonable royalties
• Defenses to patent infringement include arguing that the patent is invalid (lacks novelty, is obvious, or has inadequate disclosure), or that the accused product or process does not actually infringe the patent claims
• Doctrine of Equivalents allows a patent holder to claim infringement even if the accused product or process does not literally match the patent claims, but performs substantially the same function in substantially the same way to obtain the same result

Limitations on Intellectual Property Rights

• Fair Use is a legal doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research
  • Factors considered in determining fair use include the purpose and character of the use (commercial vs. non-profit educational), the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for or value of the copyrighted work
• Non-disclosure Agreement (NDA) is a legal contract between parties that outlines confidential information, knowledge, or material that the parties wish to share but want to restrict access to by third parties
  • NDAs are commonly used to protect trade secrets, such as when a company hires an outside consultant or enters into negotiations for a potential business partnership
• Compulsory Licensing allows a government to grant permission to a third party to make, use, or sell a patented invention without the patent owner's consent, usually in situations where the patent holder is not using the invention or is using it in a way that does not meet public demand
  • This provision is included in international agreements such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to ensure access to essential medicines in public health emergencies