Generally, intellectual property is intangible and is created by intellectual effort as opposed to physical effort. In the United States, patents, copyrights and trademarks are governed by federal law. Trade secrets are governed by state law.
A patent is a governmental grant of an exclusive monopoly as an incentive and a reward for a new invention. To be patentable, an idea must be novel, useful and nonobvious. 1In the U. S. A. , the owner of a patent controls the right to make, sell and use a product for a period of seventeen years and a design for fourteen years. If one manufactures, sells, or uses a patented invention without authorization of the patent owner, he has probably committed patent infringement. The infringement exists even if the infringer did not know about the patent. Infringers can be liable for damages and may be enjoined from future infringement.
However, the party challenged with patent infringement can escape liability in a variety of ways. One way is by proving that the challenged product or process is outside the scope of the patent. Another way is by proving that the patent is invalid because it fails to meet the criteria for patentability. A third way is to establish that the patent holder has misused the patent. Misuse of a patent occurs when a patent holder uses the patent to achieve something illegally. The most common type of misuse occurs when the patent holder uses the patent to violate the antitrust laws.
A copyright protects the physical expression of intellectual or artistic effort, not the idea. A copyright is effective for the life of the creator plus fifty years. Anyone who creates an original work is protected by an automatic common law copyright. Published materials without statutory copyright protection are said to him in the public domain and may be used by anyone, without the consent of the creator, 3To obtain statutory copyright protection, materials must be published with the copyright notice, which takes the form of the word "copyright" or the abbreviation copr. , or the symbol (c) followed by the name of the copyright owner. Copyrights may be registered with the Register of Copyright and copies of the copyrighted material are provided by the Library of Congress. If one violates the copyright created by the copyright notice, he may only be enjoined from future violations. If he violates a copyright created by registration, he may be liable for damages, fines or imprisonment. Owners of copyrights may assign their ownership to others.
A trademark is a mark on goods that distinguishes the marked goods from competing goods. The mark may be a word, picture or design. In order to qualify as a trademark, the mark must not be overly descriptive or generic. Trademarks are protected through registration. Unauthorized use of the registered trademarks of others is illegal. Public perception plays a significant role in trademark law. If the public comes to perceive that a trademark is generic, it will lose its legal status as a trademark. Public perception can also create a legal right for an attribute of a product. If a product's shape or style or features are arbitrary and nonfunctional, and the general public comes to view these features as associated with a particular product, they are said to have acquired a secondary meaning, which may be registered and protected.
A trade secret may consist of any formula, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. Trade secrets must be kept secret. To qualify for protection, the secret must give the firm a competitive advantage. Unlike patents and copyrights, there is no time limit on the life of a trade secret. It is effective as long as the secrecy is maintained. The law protects trade secrets from wrongful appropriation. This does not mean that a competitor cannot use the same manufacturing process. It only means that the competitor must arrive at the idea independently.