Understanding the Differences between the Intellectual Properties: Patent, Trademark, Copyright

By: ANDREW SCHROEDER
Submitted: 2009-08-31 17:54:15
Print this article | Tell a friend | For publisher |

Rating:

 

One of the most important concepts of Intellectual Property to grasp is that Patents, Trademarks, and Copyright all come with their unique strengths and weaknesses.  Moreover, they all overlap and can be brought to bear on just about any good or service.  That is why it is critical to know which area to use and when.  That way, not every problem will appear to be a nail.           

Since Patent Law is predicated upon a strict liability standard, Patent Law is considered by many to be the strongest of the intellectual properties.  With regards to the  strict liability standard, what matters is not whether a person knew of the patent or knew whether they were infringing on someone else’s rights.  Rather, the key question is whether the claims were actually infringed.  Unlike Copyright Law and Trademark Law, Patent Law is not amenable to the fair use exceptions found in Copyrights and Trademarks.  Moreover, patent law can protect against reverse engineering insofar as the claims are drafted broadly and with diligent foresight.

However, the prime weakness of Patents is related with time.  Patent Applications can take years to be reviewed and approved by the USPTO (United States Patent & Trademark Office).  Furthermore, Patents are encumbered with a relatively short life span: 20 years for utility patents and 14 for design patents.  For this reason, patents are often seen as prohibitively time consuming in fast changing industries such as software.

As opposed to Patents, Trademarks are not encumbered with any time constraints.  The reason why is that Trademarks, conceivably, can last forever inasmuch as they are used properly, consistently, and continuously.  In point of fact, the German Beer maker, Lowenbrau has an enforceable trademark going back some 600 years.

However, Trademark law is prone to weaknesses such as fair use exceptions and can be seriously circumscribed by the relative strength or weakness of the mark.  An inherently weak trademark will not be able to create a lot of distance with competitors.  For instance if you were to trademark the term Johnnie's Orange Oranges, and your competitor were to trademark the phrase Johnnie's Really Big Orange Oranges, you may have a problem enforcing your trademark rights on this competitor given the fact that your trademark is inherently weak and descriptive (note: this particular example might not make it through the USPTO, it is used for exemplary and teaching purposes only).  As a corollary, the weaker your trademark is, the closer your competitors may come to it in the case of relatively weak trademarks.

Along the same lines, Copyright law also enjoys a relatively long term duration.   Copyright terms commence from the time of creation of the work plus the life of the author, plus an additional 70 years after the death of that author.  However, Copyright Law, as with Trademarks are prone to various fair use exceptions.  In addition, they cannot prevent reverse engineering as it relates to software object code and source code since Copyright law protects the expression of ideas rather than the underlying ideas themselves.

The Los Angeles County Patent Attorney

Los Angeles Patent Trademark Attorney

Article source: Expert Articles