trademark should not be descriptive of the goods and services that you will offer. For example, “Mike's Software Company” would not be a good trademark candidate because it describes the product produced by the company. The USPTO may reject an application if it considers the trademark descriptive.
In the United States, trademarks are granted for an initial period of 10 years and can be renewed for unlimited successive 10-year periods.
Patents
Utility patents protect the intellectual property rights of inventors. They provide a period of 20 years from the time of the invention (from the date of initial application) during which the inventor is granted exclusive rights to use the invention (whether directly or via licensing agreements). At the end of the patent exclusivity period, the invention is in the public domain available for anyone to use.
Patents have three main requirements:
The invention must be new. Inventions are patentable only if they are original ideas.
The invention must be useful. It must actually work and accomplish some sort of task.
The invention must not be obvious. You could not, for example, obtain a patent for your idea to use a drinking cup to collect rainwater. This is an obvious solution. You might, however, be able to patent a specially designed cup that optimizes the amount of rainwater collected while minimizing evaporation.
Protecting Software
There is some ongoing controversy over how the intellectual property contained in software should be protected. Software seems to clearly qualify for copyright protection, but litigants have disputed this notion in court.
Similarly, companies have applied for and received patents covering the way that their software “inventions” function. Cryptographic algorithms, such as RSA and Diffie–Hellman, both enjoyed patent protection at one point. This, too, is a situation that poses some legal controversy.
At the time this book went to press, the U.S. Supreme Court was considering the case Google v. Oracle, a dispute that has been working its way through the court system for over a decade. This case centers on issues surrounding the Java API and is likely to set a precedent that will govern many software intellectual property issues.
In the technology field, patents have long been used to protect hardware devices and manufacturing processes. There is plenty of precedent on the side of inventors in those areas. Recent patents have also been issued covering software programs and similar mechanisms, but these patents have become somewhat controversial because many of them are viewed by the technical community as overly broad. The issuance of these broad patents led to the evolution of businesses that exist solely as patent holding companies that derive their revenue by engaging in legal action against companies that they feel infringe upon the patents held in their portfolio. These companies are known by many in the technology community under the derogatory name “patent trolls.”
Design Patents
Patents actually come in two different forms. The patents described in this section are utility patents, a type of patent that protects the intellectual property around how an invention functions.
Inventors may also take advantage of design patents. These patents cover the appearance of an invention and last for only 15 years. They do not protect the idea of an invention, only the form of the invention, so they are generally seen as a weaker form of intellectual property protection than utility patents, but they are also easier to obtain.
Trade Secrets
Many companies have intellectual property that is absolutely critical to their business, and significant damage would result if it were disclosed to competitors and/or the public—in other words, trade secrets. We previously mentioned two examples of this type of information from popular culture—the secret formula for Coca-Cola and KFC's “secret blend of herbs and spices.” Other examples are plentiful; a manufacturing company may want to keep secret a certain manufacturing process that only a few key employees fully understand, or a statistical analysis company might want to safeguard an advanced model developed for in-house use.
Two of the previously discussed intellectual property tools—copyrights and patents—could be used to protect this type of information, but with these two major disadvantages:
Filing a copyright or patent application requires that you publicly disclose the details of your work or invention. This automatically removes the “secret” nature of your property and may harm your firm by removing the mystique surrounding a product or by allowing unscrupulous competitors to copy your property in violation of international intellectual property laws.
Copyrights and patents both provide protection for a limited period of time. Once your legal protection expires, other firms are free to use your work at will (and they have all the details from the public disclosure you made during the application process!).
There actually is an official process regarding trade secrets. By their nature you don't register them with anyone; you keep them to yourself. To preserve trade secret status, you must implement adequate controls within your organization to ensure that only authorized personnel with a need to know the secrets have access to them. You must also ensure that anyone who does have this type of access is bound by a nondisclosure agreement (NDA) that prohibits them from sharing the information with others and provides penalties for violating the agreement. Consult an attorney to ensure that the agreement lasts for the maximum period permitted by law. In addition, you must take steps to demonstrate that you value and protect your intellectual property. Failure to do so may result in the loss of trade secret protection.
Trade secret protection is one of the best ways to protect computer software. As discussed in the previous section, patent law does not provide adequate protection for computer software products. Copyright law protects only the actual text of the source code and doesn't prohibit others from rewriting your code in a different form and accomplishing the same objective. If you treat your source code as a trade secret, it keeps it out of the hands of your competitors in the first place. This is the technique used by large software development companies such as Microsoft to protect their core base of intellectual property.
Economic Espionage Act of 1996
Trade secrets are often the crown jewels of major corporations, and the U.S. government recognized the importance of protecting this type of intellectual property when Congress enacted the Economic Espionage Act of 1996. This law has these two major provisions:
Anyone found guilty of stealing trade secrets from a U.S. corporation with the intention of benefiting a foreign government or agent may be fined up to $500,000 and imprisoned for up to 15 years.
Anyone found guilty of stealing trade secrets under other circumstances may be fined up to $250,000 and imprisoned for up to 10 years.
The terms of the Economic Espionage Act give true teeth to the intellectual property rights of trade secret owners. Enforcing this law requires that companies take adequate steps to ensure that their trade secrets are well protected and not accidentally placed into the public domain.
Licensing
Security
