By FindLaw Staff | Legally reviewed by Amber Sheppard, Esq. | Last reviewed August 09, 2023
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Intellectual property is the cornerstone of any startup. Intellectual property protects the intangible assets of a small business. When a small business has intellectual property rights (IP rights), it has exclusive rights. These are trade secrets, copyrights, trademarks, and patents. The amount of protection an entrepreneur or business owner has in their product or artistic work depends on the type of intellectual property.
Intellectual property law helps businesses—large and small—protect their trade secrets. Trade secrets are information not known to the public or competitors. The most cost-effective way for IP protection is using non-disclosure agreements (NDAs). These can be for employees or potential partners.
Copyright protection through federal registration is how entrepreneurs protect artistic works. Copyright is available to tangible mediums only. Examples include recorded movies, books, computer software, and sound recordings. A creation of the mind not on a fixed medium cannot have copyright protection. Under copyright law, federal registration occurs with the U.S. Copyright Office. Copyright infringement is when someone copies, plagiarizes, or steals a protected original work of authorship. Works in the public domain do not have legal protection through copyright law.
Brand names, product names, taglines, and logos, gain protection through trademark law. Trademark rights occur at first commercial use. It gains more protection after the granting of a trademark application. Trademark applications and trademark registrations go through the U.S. Patent and Trademark Office. If approved, the mark becomes a registered trademark. The mark only protects applied for goods and services. The World Intellectual Property Organization (WIPO) handles international trademarks and patents.
Legal action against infringers takes place in federal court. When someone wins an infringement case, they are usually awarded attorney fees and damages. Damages can include lost profits or revenue the infringer gained from illegally using the protected property.
Patents protect useful, nonobvious, and novel inventions and discoveries. There are three types of patents: design patents, utility patents, and plant patents. Utility patents are the most common patent. They protect compositions of matter, machines, and improvements on existing processes. Design patents protect an inseparable shape or configuration of an object. This means how something looks. Plant patents protect new asexually reproduced plants and seeds.
Only the United States Patent and Trademark Office (USPTO) issues patents on behalf of the government. Individuals or corporations can apply for patent protection. The invention or process needs to be novel, nonobvious, and useful.
If approved, the USPTO sends the patentee a printed copy of the granted specification and drawing. The patent includes the drawing attached. Patents give the owner the exclusive right to make, use, sell, or import the invention into the United States. The United States also includes its territories and possessions.
People are free to make, use, offer for sale, sell, or import anything they want. A grant like a patent from the government is not usually necessary to do this. A patent does not grant the right to make, use, offer for sale, sell, or import the patented invention.
A patent does grant the owner a competitive advantage. The patent holder (patentee) now has the exclusive nature of the patent right. The patent only grants the right to exclude others from selling, importing, making, or using the invention for commercial gain.
Having a patent does not allow the holder to sell the invention if doing so would violate any laws or infringe on another person's rights. An inventor with a patent for a new cannabis accessory cannot sell it in violation of state laws that ban it. A patentee cannot violate federal antitrust laws either. This means a patent does not absolve them if they violate food and drug laws or resale price agreements. If someone else has a patent, another startup or entrepreneur cannot interfere with it. For example, a patent for improving an existing patent is not allowed.
Patent protection generally lasts 20 years from the date of the patent application. If the application contains a specific reference to an earlier application, then it starts from the date of that application. Those patents are subject to maintenance fees.
Patents stay enforceable through maintenance fees. Maintenance fees are due 3.5, 7.5, and 11.5 years after the original grant for all patents issued from applications filed on and after December 12, 1980. Certain pharmaceuticals and specific circumstances can extend a term.
After the patent expires, anyone may make, use, sell, or import the invention without permission. It cannot infringe on unexpired patents.
Intellectual property rights and patent law are complex. Before registering your creative work or industrial design, get legal advice. A patent attorney can help with the subject matter of your work. You won't have a competitive advantage over other small businesses if you do not protect your intellectual property rights. Copyright, patent, and trademark owners must police their works after registration. Having a lawyer to protect your trade secrets is essential.
Contact a qualified business attorney to help you identify how to best protect your business' intellectual property.
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