What Is Intellectual Property?

SOURCE: Legal Zoom - By Joe Runge, Esq. (Scientist & Attorney)

In order to fully understand what is intellectual property, it is first important to understand property rights in general. Property owners have specific rights, such as the right to improve, use and enjoy their property. However, their most important right is their right to exclude. If a piece of property is yours and someone takes, occupies or otherwise deprives you of it, then the police, the courts or the government can compel the taker to give it back or give it up. Property law is not limited to places or things, but also includes inventions, literary and artistic works, brand names used in commerce and expert knowledge.

The most basic form of intellectual property is a secret. No one can take a perfectly kept secret. In places where intellectual property is poorly protected, secrets are the intellectual property protection of last resort. Secrets, however, have obvious limitations. If you share a secret, it may become nearly impossible to protect. The more you share a secret, the harder it becomes to protect.

In addition to being difficult to keep secrets from leaking, it is very hard to punish the leakers. Moreover, what if someone independently comes up with the same idea that you are keeping secret on their own? Good intellectual property protection protects your original idea no matter how else someone comes up with it. Intellectual property laws allow owners of patents, trademarks and copyrighted works to benefit from their work or investment in a creation of the mind.

The U.S. Constitution Grants Congress the Power to Pass Intellectual Property Laws

Among other fundamental powers of government such as establishing courts, declaring war and raising taxes, the U.S. Constitution empowers Congress to pass intellectual property laws. This grant of power to Congress recognizes intellectual property’s importance. The Constitution grants Congress the power to pass intellectual property laws in order to “promote the progress of science and the useful arts.” We, as a country, give exclusive rights to intellectual property so that inventors and authors do not have to keep their work a secret and have incentive to produce works for the public good.

A good intellectual property definition starts with the most recognizable forms of intellectual property: copyright, trademark and patent. Each category provides different kinds of exclusive rights:

Copyright: the exclusive right to copy, make derivatives of, distribute, or publicly perform or display an original work (e.g. the screenplay for a movie)

Trademark: the exclusive right to use a mark in commerce in connection with specific goods and services (e.g. the name “laundrymatic” for an app-based washing machine sharing service)

Patent: the exclusive right to make, use or sell an invention for a certain period of time (e.g. a new kind of solar panel)


Other Intellectual Property Rights: Trade Secrets, Expert Knowledge and More

There is more to intellectual property rights than the 3 well-known categories recognized by federal intellectual property law. For example, trade secret laws help trade secret owners keep their secrets. A trade secret must be commercially valuable and the owner must rigorously protect the secret. The government will then help the owner protect the trade secret through criminal laws.

Similarly, expert knowledge can be intellectual property. For example, a world expert on statistics can consult for a financial company to improve their risk analysis software. The financial company may ask the expert for exclusive rights to her statistical knowledge for all financial applications. Through the contracts they sign, the financial company and the statistician have defined exclusive rights around her expert knowledge of statistics.

Some things that you may not know are considered intellectual property:

The order of songs in a compilation album. The arrangement of other works in a compilation is protectable as a separate copyrightable work.

Customer lists. Companies routinely claim that their commercially valuable data is a trade secret.

Graphical user interface. The way that an electronic device displays information can be protected under patent law.

Intellectual property is quickly becoming the most valuable property in the world. Recognizing all the ways to protect intellectual property is the first step towards protecting and realizing its value.

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