INTELLECTUAL PROPERTIES

Patents
A patent is a government-granted monopoly to build, sell, and use your invention (and prevent others from doing so). If you are issued a patent, it’s usually good for 20 years; however, there are some patents that are only good for 14 years. After 20 years, your patent expires and anyone can copy, build,and sell your invention. In exchange for the “monopoly,” you must disclose the details of your invention to the public so that someone “practiced in the arts” could recreate it. To receive a patent your idea must meet four requirements:

The subject matter must be “patentable” (as defined by Congress and the courts).
Your idea must be “new.”
The idea must be “useful.”
Your idea must be “non-obvious.”

compositions, sound recordings, computer programs, books, blog posts, movies, architectural works, and plays. There are some things that are not “creative,” like titles, names, short phrases, and slogans; familiar symbols or designs; lettering or coloring; and mere listings of ingredients or contents. Copyrights protect expression and never ideas, procedures, methods, systems, processes, concepts, principles, or discoveries.

Companies can be copyright owners as the law allows ownership through “works made for hire” — works created by an employee within the scope of employment or certain independent contractors owned by the employer. Copyright law provides copyright owners with the following exclusive rights (among others):

Reproduce the work
Prepare derivative works
Distribute copies by sale, transfer of ownership, or license
Perform or display the work publicly
Works created on or after January 1, 1978, have a copyright term of life of the author plus seventy years after the author’s death. For works made for hire, copyright protection is 95 years from publication or 120 years from creation, whichever is shorter. Copyrights exist automatically but you can enhance the protection by registering the work. Copyright registration is not mandatory but allows copyright owners to seek certain types of monetary damages and attorney fees.

Notable exceptions to the exclusive rights are “copyright fair use” or the use of copyrighted works that have fallen into the “public domain.” As to the latter, in-house counsel must ensure any company copyrights are kept current until they otherwise expire.

See Practical Law – Copyright Infringement Cease and Desist Letter
Trade Secrets
While businesses have a lot of confidential information, not everything is a trade secret. A trade secret is typically something not generally known to the public, where reasonable efforts are made to keep it confidential, and confers some type of economic value to the holder by the information not being known by another party.

What exactly constitutes a trade secret can vary by state — in the U.S. — or by country. A good shorthand for what constitutes a trade secret is: any information you would not want your competitors to have. Some examples of likely trade secrets include new business models; customer and supplier information, especially around price; marketing strategy; processes and formulae; and other confidential business information.

See Practical Law – Protection of Employers’ Trade Secrets and Confidential Information
Even if you have plans, processes, or formulae that you don’t want your competitors to have, if the company doesn’t take appropriate steps to keep that information confidential it can lose the ability to claim such items are trade secrets. For example, if the company has handed out copies of its future marketing plans to customers without any type of non-disclosure agreement in place or failed to label the plans as “confidential,” the plans may not be treated as a trade secret.

Courts will generally look at the following factors to determine if something is a trade secret:

Extent to which the information is known outside of the company
Measures taken to guard the secrecy of the information
Value of the information to competitors
Extent to which the information is known throughout the company’s employee base and others involved in the business
Money or effort spent by the company to develop the information and how easy would it be for others to duplicate the information
See Practical Law – Defend Trade Secrets Act Issues and Remedies Checklist.
Understanding the different types of intellectual property is an important knowledge that all in-house counsel should master. Patents, trademarks, copyrights, and trade secrets are valuable assets of the company and understanding how they work and how they are created is critical to knowing how to protect them. With Practical Law, general counsel are only a few keystrokes away from a wide variety of information, forms, templates, and checklists that can help them master each type and know what to do to create and protect them.