Intellectual Property Right (IPR)

Intellectual property
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Intellectual property
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Intellectual property laws such as copyright prevent the sale of copyright infringing goods like these "Nkie" sandals.
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect.[1][2] There are many types of intellectual property, and some countries recognize more than others.[3][4][5][6][7] The most well-known types are copyrights, patents, trademarks, and trade secrets. Early precursors to some types of intellectual property existed in societies such as Ancient Rome, but the modern concept of intellectual property developed in England in the 17th and 18th centuries. The term "intellectual property" began to be used in the 19th century, though it was not until the late 20th century that intellectual property became commonplace in the majority of the world's legal systems.[8]

The main purpose of intellectual property law is to encourage the creation of a wide variety of intellectual goods.[9] To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time. This gives economic incentive for their creation, because it allows people to profit from the information and intellectual goods they create.[9] These economic incentives are expected to stimulate innovation and contribute to the technological progress of countries, which depends on the extent of protection granted to innovators.[10]

The intangible nature of intellectual property presents difficulties when compared with traditional property like land or goods. Unlike traditional property, intellectual property is "indivisible", since an unlimited number of people can "consume" an intellectual good without it being depleted. Additionally, investments in intellectual goods suffer from problems of appropriation: a landowner can surround their land with a robust fence and hire armed guards to protect it, but a producer of information or literature can usually do very little to stop their first buyer from replicating it and selling it at a lower price. Balancing rights so that they are strong enough to encourage the creation of intellectual goods but not so strong that they prevent the goods' wide use is the primary focus of modern intellectual property law.[11]


Contents
1 History
2 Intellectual property rights
2.1 Patents
2.2 Copyright
2.3 Industrial design rights
2.4 Plant varieties
2.5 Trademarks
2.6 Trade dress
2.7 Trade secrets
3 Object of intellectual property law
3.1 Financial incentive
3.2 Economic growth
3.3 Morality
4 Infringement, misappropriation, and enforcement
4.1 Patent infringement
4.2 Trademark infringement
4.3 Trade secret misappropriation
5 Criticisms
5.1 The term "intellectual property"
5.1.1 Alternative terms
5.2 Objections to overbroad intellectual property laws
5.3 Expansion in nature and scope of intellectual property laws
5.4 Use in corporate tax avoidance
6 See also
7 References
7.1 Citations
7.2 Sources
8 External links
History
Main articles: History of copyright law and History of patent law

The Statute of Anne came into force in 1710
The Statute of Monopolies (1624) and the British Statute of Anne (1710) are seen as the origins of patent law and copyright respectively,[12] firmly establishing the concept of intellectual property.

"Literary property" was the term predominantly used in the British legal debates of the 1760s and 1770s over the extent to which authors and publishers of works also had rights deriving from the common law of property (Millar v Taylor (1769), Hinton v Donaldson (1773), Donaldson v Becket (1774)). The first known use of the term intellectual property dates to this time, when a piece published in the Monthly Review in 1769 used the phrase.[13] The first clear example of modern usage goes back as early as 1808, when it was used as a heading title in a collection of essays.[14]

The German equivalent was used with the founding of the North German Confederation whose constitution granted legislative power over the protection of intellectual property (Schutz des geistigen Eigentums) to the confederation.[15] When the administrative secretariats established by the Paris Convention (1883) and the Berne Convention (1886) merged in 1893, they located in Berne, and also adopted the term intellectual property in their new combined title, the United International Bureaux for the Protection of Intellectual Property.

The organization subsequently relocated to Geneva in 1960, and was succeeded in 1967 with the establishment of the World Intellectual Property Organization (WIPO) by treaty as an agency of the United Nations. According to legal scholar Mark Lemley, it was only at this point that the term really began to be used in the United States (which had not been a party to the Berne Convention),[8] and it did not enter popular usage there until passage of the Bayh-Dole Act in 1980.[16]

"The history of patents does not begin with inventions, but rather with royal grants by Queen Elizabeth I (1558–1603) for monopoly privileges... Approximately 200 years after the end of Elizabeth's reign, however, a patent represents a legal right obtained by an inventor providing for exclusive control over the production and sale of his mechanical or scientific invention... [demonstrating] the evolution of patents from royal prerogative to common-law doctrine."[17]

The term can be found used in an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown., in which Justice Charles L. Woodbury wrote that "only in this way can we protect intellectual property, the labors of the mind, productions and interests are as much a man's own...as the wheat he cultivates, or the flocks he rears."[18] The statement that "discoveries are..property" goes back earlier. Section 1 of the French law of 1791 stated, "All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years."[19] In Europe, French author A. Nion mentioned propriété intellectuelle in his Droits civils des auteurs, artistes et inventeurs, published in 1846.

Until recently, the purpose of intellectual property law was to give as little protection as possible in order to encourage innovation. Historically, therefore, they were granted only when they were necessary to encourage invention, limited in time and scope.[20] This is mainly as a result of knowledge being traditionally viewed as a public good, in order to allow its extensive dissemination and improvement thereof.[21]

The concept's origins can potentially be traced back further. Jewish law includes several considerations whose effects are similar to those of modern intellectual property laws, though the notion of intellectual creations as property does not seem to exist – notably the principle of Hasagat Ge'vul (unfair encroachment) was used to justify limited-term publisher (but not author) copyright in the 16th century.[22] In 500 BCE, the government of the Greek state of Sybaris offered one year's patent "to all who should discover any new refinement in luxury".[23]

According to Jean-Frédéric Morin, "the global intellectual property regime is currently in the midst of a paradigm shift".[24] Indeed, up until the early 2000s the global IP regime used to be dominated by high standards of protection characteristic of IP laws from Europe or the United States, with a vision that uniform application of these standards over every country and to several fields with little consideration over social, cultural or environmental values or of the national level of economic development. Morin argues that "the emerging discourse of the global IP regime advocates for greater policy flexibility and greater access to knowledge, especially for developing countries." Indeed, with the Development Agenda adopted by WIPO in 2007, a set of 45 recommendations to adjust WIPO's activities to the specific needs of developing countries and aim to reduce distortions especially on issues such as patients’ access to medicines, Internet users’ access to information, farmers’ access to seeds, programmers’ access to source codes or students’ access to scientific articles.[25] However, this paradigm shift has not yet manifested itself in concrete legal reforms at the international level.[26]

Similarly, it is based on these background that the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement requires members of the WTO to set minimum standards of legal protection, but its objective to have a “one-fits-all” protection law on Intellectual Property has been viewed with controversies regarding differences in the development level of countries.[27] Despite the controversy, the agreement has extensively incorporated intellectual property rights into the global trading system for the first time in 1995, and has prevailed as the most comprehensive agreement reached by the world.[28]

Intellectual property rights
Intellectual property rights include patents, copyright, industrial design rights, trademarks, plant variety rights, trade dress, geographical indications,[29] and in some jurisdictions trade secrets. There are also more specialized or derived varieties of sui generis exclusive rights, such as circuit design rights (called mask work rights in the US) and supplementary protection certificates for pharmaceutical products (after expiry of a patent protecting them) and database rights (in European law). The term "industrial property" is sometimes used to refer to a large subset of intellectual property rights including patents, trademarks, industrial designs, utility models, service marks, trade names, and geographical indications.[30]

Patents
Main article: Patent
A patent is a form of right granted by the government to an inventor or their successor-in-title, giving the owner the right to exclude others from making, using, selling, offering to sell, and importing an invention for a limited period of time, in exchange for the public disclosure of the invention. An invention is a solution to a specific technological problem, which may be a product or a process and generally has to fulfill three main requirements: it has to be new, not obvious and there needs to be an industrial applicability.[31]:17 To enrich the body of knowledge and stimulate innovation, it is an obligation for patent owners to disclose valuable information about their inventions to the public.[32]

Copyright
Main article: Copyright
A copyright gives the creator of an original work exclusive rights to it, usually for a limited time. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works".[33][34] Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.[35]

Industrial design rights
Main article: Industrial design right
An industrial design right (sometimes called "design right" or design patent) protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft. Generally speaking, it is what makes a product look appealing, and as such, it increases the commercial value of goods.[32]

Plant varieties
Main article: Plant breeders' rights
Plant breeders' rights or plant variety rights are the rights to commercially use a new variety of a plant. The variety must amongst others be novel and distinct and for registration the evaluation of propagating material of the variety is considered.

Trademarks
Main article: Trademark
A trademark is a recognizable sign, design or expression which distinguishes products or services of a particular trader from similar products or services of other traders.[36][37][38]

Trade dress
Main article: Trade dress
Trade dress is a legal term of art that generally refers to characteristics of the visual and aesthetic appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers.[39]

Trade secrets
Main article: Trade secret
A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors and customers. There is no formal government protection granted; each business must take measures to guard its own trade secrets (e.g., Formula of its soft drinks is a trade secret for Coca-Cola.)

Object of intellectual property law
The main purpose of intellectual property law is to encourage the creation of a wide variety of intellectual goods for consumers.[9] To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time. Because they can then profit from them, this gives economic incentive for their creation.[9] The intangible nature of intellectual property presents difficulties when compared with traditional property like land or goods. Unlike traditional property, intellectual property is indivisible – an unlimited number of people can "consume" an intellectual good without it being depleted. Additionally, investments in intellectual goods suffer from problems of appropriation – while a landowner can surround their land with a robust fence and hire armed guards to protect it, a producer of information or an intellectual good can usually do very little to stop their first buyer from replicating it and selling it at a lower price. Balancing rights so that they are strong enough to encourage the creation of information and intellectual goods but not so strong that they prevent their wide use is the primary focus of modern intellectual property law.[11]

By exchanging limited exclusive rights for disclosure of inventions and creative works, society and the patentee/copyright owner mutually benefit, and an incentive is created for inventors and authors to create and disclose their work. Some commentators have noted that the objective of intellectual property legislators and those who support its implementation appears to be "absolute protection". "If some intellectual property is desirable because it encourages innovation, they reason, more is better. The thinking is that creators will not have sufficient incentive to invent unless they are legally entitled to capture the full social value of their inventions".[20] This absolute protection or full value view treats intellectual property as another type of "real" property, typically adopting its law and rhetoric. Other recent developments in intellectual property law, such as the America Invents Act, stress international harmonization. Recently there has also been much debate over the desirability of using intellectual property rights to protect cultural heritage, including intangible ones, as well as over risks of commodification derived from this possibility.[40] The issue still remains open in legal scholarship.

Financial incentive
These exclusive rights allow owners of intellectual property to benefit from the property they have created, providing a financial incentive for the creation of an investment in intellectual property, and, in case of patents, pay associated research and development costs.[41] In the United States Article I Section 8 Clause 8 of the Constitution, commonly called the Patent and Copyright Clause, reads; "[The Congress shall have power] 'To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.'"[42] ”Some commentators, such as David Levine and Michele Boldrin, dispute this justification.[43]

In 2013 the United States Patent & Trademark Office approximated that the worth of intellectual property to the U.S. economy is more than US $5 trillion and creates employment for an estimated 18 million American people. The value of intellectual property is considered similarly high in other developed nations, such as those in the European Union.[44] In the UK, IP has become a recognised asset class for use in pension-led funding and other types of business finance. However, in 2013, the UK Intellectual Property Office stated: "There are millions of intangible business assets whose value is either not being leveraged at all, or only being leveraged inadvertently".[45]

Economic growth
The WIPO treaty and several related international agreements underline that the protection of intellectual property rights is essential to maintaining economic growth. The WIPO Intellectual Property Handbook gives two reasons for intellectual property laws:

One is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations. The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development.[46]

The Anti-Counterfeiting Trade Agreement (ACTA) states that "effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally".[47]

Economists estimate that two-thirds of the value of large businesses in the United States can be traced to intangible assets.[48] "IP-intensive industries" are estimated to generate 72 percent more value added (price minus material cost) per employee than "non-IP-intensive industries".[49][dubious – discuss]

A joint research project of the WIPO and the United Nations University measuring the impact of IP systems on six Asian countries found "a positive correlation between the strengthening of the IP system and subsequent economic growth."[50]

Morality
According to Article 27 of the Universal Declaration of Human Rights, "everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author".[51] Although the relationship between intellectual property and human rights is a complex one,[52] there are moral arguments for intellectual property.

The arguments that justify intellectual property fall into three major categories. Personality theorists believe intellectual property is an extension of an individual. Utilitarians believe that intellectual property stimulates social progress and pushes people to further innovation. Lockeans argue that intellectual property is justified based on deservedness and hard work.[53]

Various moral justifications for private property can be used to argue in favor of the morality of intellectual property, such as:

Natural Rights/Justice Argument: this argument is based on Locke's idea that a person has a natural right over the labour and/or products which is produced by his/her body. Appropriating these products is viewed as unjust. Although Locke had never explicitly stated that natural right applied to products of the mind,[54] it is possible to apply his argument to intellectual property rights, in which it would be unjust for people to misuse another's ideas.[55] Locke's argument for intellectual property is based upon the idea that laborers have the right to control that which they create. They argue that we own our bodies which are the laborers, this right of ownership extends to what we create. Thus, intellectual property ensures this right when it comes to production.
Utilitarian-Pragmatic Argument: according to this rationale, a society that protects private property is more effective and prosperous than societies that do not. Innovation and invention in 19th century America has been attributed to the development of the patent system.[56] By providing innovators with "durable and tangible return on their investment of time, labor, and other resources", intellectual property rights seek to maximize social utility.[57] The presumption is that they promote public welfare by encouraging the "creation, production, and distribution of intellectual works".[57] Utilitarians argue that without intellectual property there would be a lack of incentive to produce new ideas. Systems of protection such as Intellectual property optimize social utility.
"Personality" Argument: this argument is based on a quote from Hegel: "Every man has the right to turn his will upon a thing or make the thing an object of his will, that is to say, to set aside the mere thing and recreate it as his own".[58] European intellectual property law is shaped by this notion that ideas are an "extension of oneself and of one's personality".[59] Personality theorists argue that by being a creator of something one is inherently at risk and vulnerable for having their ideas and designs stolen and/or altered. Intellectual property protects these moral claims that have to do with personality.
Lysander Spooner (1855) argues "that a man has a natural and absolute right—and if a natural and absolute, then necessarily a perpetual, right—of property, in the ideas, of which he is the discoverer or creator; that his right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with, his right of property in material things; that no distinction, of principle, exists between the two cases".[60]

Writer Ayn Rand argued in her book Capitalism: The Unknown Ideal that the protection of intellectual property is essentially a moral issue. The belief is that the human mind itself is the source of wealth and survival and that all property at its base is intellectual property. To violate intellectual property is therefore no different morally than violating other property rights which compromises the very processes of survival and therefore constitutes an immoral act.[61]

Infringement, misappropriation, and enforcement
Main article: Intellectual property infringement
Violation of intellectual property rights, called "infringement" with respect to patents, copyright, and trademarks, and "misappropriation" with respect to trade secrets, may be a breach of civil law or criminal law, depending on the type of intellectual property involved, jurisdiction, and the nature of the action.

As of 2011 trade in counterfeit copyrighted and trademarked works was a $600 billion industry worldwide and accounted for 5–7% of global trade.[62]

Patent infringement
Main article: Patent infringement
Patent infringement typically is caused by using or selling a patented invention without permission from the patent holder. The scope of the patented invention or the extent of protection[63] is defined in the claims of the granted patent. There is safe harbor in many jurisdictions to use a patented invention for research. This safe harbor does not exist in the US unless the research is done for purely philosophical purposes, or in order to gather data in order to prepare an application for regulatory approval of a drug.[64] In general, patent infringement cases are handled under civil law (e.g., in the United States) but several jurisdictions incorporate infringement in criminal law also (for example, Argentina, China, France, Japan, Russia, South Korea).Cite error: A <ref> tag is missing the closing </ref> (see the help page). While copyright is created the instant a work is fixed, generally the copyright holder can only get money damages if the owner registers the copyright.[citation needed] Enforcement of copyright is generally the responsibility of the copyright holder.[65] The ACTA trade agreement, signed in May 2011 by the United States, Japan, Switzerland, and the EU, and which has not entered into force, requires that its parties add criminal penalties, including incarceration and fines, for copyright and trademark infringement, and obligated the parties to actively police for infringement.[62][66] There are limitations and exceptions to copyright, allowing limited use of copyrighted works, which does not constitute infringement. Examples of such doctrines are the fair use and fair dealing doctrine.

Trademark infringement
Main article: Trademark infringement
Trademark infringement occurs when one party uses a trademark that is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services of the other party. In many countries, a trademark receives protection without registration, but registering a trademark provides legal advantages for enforcement. Infringement can be addressed by civil litigation and, in several jurisdictions, under criminal law.[62][66]

Trade secret misappropriation
Main article: Trade secret § Misappropriation
Trade secret misappropriation is different from violations of other intellectual property laws, since by definition trade secrets are secret, while patents and registered copyrights and trademarks are publicly available. In the United States, trade secrets are protected under state law, and states have nearly universally adopted the Uniform Trade Secrets Act. The United States also has federal law in the form of the Economic Espionage Act of 1996 (18 U.S.C. §§ 1831–1839), which makes the theft or misappropriation of a trade secret a federal crime. This law contains two provisions criminalizing two sorts of activity. The first, 18 U.S.C. § 1831(a), criminalizes the theft of trade secrets to benefit foreign powers. The second, 18 U.S.C. § 1832, criminalizes their theft for commercial or economic purposes. (The statutory penalties are different for the two offenses.) In Commonwealth common law jurisdictions, confidentiality and trade secrets are regarded as an equitable right rather than a property right but penalties for theft are roughly the same as in the United States.[citation needed]

Criticisms
Further information: Criticism of patents and Opposition to copyright

Demonstration in Sweden in support of file sharing, 2006.

"Copying is not theft!" badge with a character resembling Mickey Mouse in reference to the in popular culture rationale behind the Sonny Bono Copyright Term Extension Act of 1998
The term "intellectual property"
Criticism of the term intellectual property ranges from discussing its vagueness and abstract overreach to direct contention to the semantic validity of using words like property and rights in fashions that contradict practice and law. Many detractors think this term specially serves the doctrinal agenda of parties opposing reform in the public interest or otherwise abusing related legislations; and that it disallows intelligent discussion about specific and often unrelated aspects of copyright, patents, trademarks, etc.[67]

Free Software Foundation founder Richard Stallman argues that, although the term intellectual property is in wide use, it should be rejected altogether, because it "systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion". He claims that the term "operates as a catch-all to lump together disparate laws [which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues" and that it creates a "bias" by confusing these monopolies with ownership of limited physical things, likening them to "property rights".[68] Stallman advocates referring to copyrights, patents and trademarks in the singular and warns against abstracting disparate laws into a collective term. He argues that "to avoid spreading unnecessary bias and confusion, it is best to adopt a firm policy not to speak or even think in terms of 'intellectual property'."[69]

Similarly, economists Boldrin and Levine prefer to use the term "intellectual monopoly" as a more appropriate and clear definition of the concept, which they argue, is very dissimilar from property rights.[70] They further argued that “stronger patents do little or nothing to encourage innovation”, mainly explained by its tendency to create market monopolies, thereby restricting further innovations and technology transfer.[71]

On the assumption that intellectual property rights are actual rights, Stallman says that this claim does not live to the historical intentions behind these laws, which in the case of copyright served as a censorship system, and later on, a regulatory model for the printing press that may have benefited authors incidentally, but never interfered with the freedom of average readers.[72] Still referring to copyright, he cites legal literature such as the United States Constitution and case law to demonstrate that the law is meant to be an optional and experimental bargain to temporarily trade property rights and free speech for public, not private, benefits in the form of increased artistic production and knowledge. He mentions that "if copyright were a natural right nothing could justify terminating this right after a certain period of time".[73]

Law professor, writer and political activist Lawrence Lessig, along with many other copyleft and free software activists, has criticized the implied analogy with physical property (like land or an automobile). They argue such an analogy fails because physical property is generally rivalrous while intellectual works are non-rivalrous (that is, if one makes a copy of a work, the enjoyment of the copy does not prevent enjoyment of the original).[74][75] Other arguments along these lines claim that unlike the situation with tangible property, there is no natural scarcity of a particular idea or information: once it exists at all, it can be re-used and duplicated indefinitely without such re-use diminishing the original. Stephan Kinsella has objected to intellectual property on the grounds that the word "property" implies scarcity, which may not be applicable to ideas.[76]

Entrepreneur and politician Rickard Falkvinge and hacker Alexandre Oliva have independently compared George Orwell's fictional dialect Newspeak to the terminology used by intellectual property supporters as a linguistic weapon to shape public opinion regarding copyright debate and DRM.[77][78]

Alternative terms
In civil law jurisdictions, intellectual property has often been referred to as intellectual rights, traditionally a somewhat broader concept that has included moral rights and other personal protections that cannot be bought or sold. Use of the term intellectual rights has declined since the early 1980s, as use of the term intellectual property has increased.

Alternative terms monopolies on information and intellectual monopoly have emerged among those who argue against the "property" or "intellect" or "rights" assumptions, notably Richard Stallman. The backronyms intellectual protectionism and intellectual poverty,[79] whose initials are also IP, have found supporters as well, especially among those who have used the backronym digital restrictions management.[80][81]

The argument that an intellectual property right should (in the interests of better balancing of relevant private and public interests) be termed an intellectual monopoly privilege (IMP) has been advanced by several academics including Birgitte Andersen[82] and Thomas Alured Faunce.[83]

Objections to overbroad intellectual property laws

The free culture movement champions the production of content that bears little or no restrictions.
Some critics of intellectual property, such as those in the free culture movement, point at intellectual monopolies as harming health (in the case of pharmaceutical patents), preventing progress, and benefiting concentrated interests to the detriment of the masses,[84][85][86][87] and argue that the public interest is harmed by ever-expansive monopolies in the form of copyright extensions, software patents, and business method patents. More recently scientists and engineers are expressing concern that patent thickets are undermining technological development even in high-tech fields like nanotechnology.[88][89]

Petra Moser has asserted that historical analysis suggests that intellectual property laws may harm innovation:

Overall, the weight of the existing historical evidence suggests that patent policies, which grant strong intellectual property rights to early generations of inventors, may discourage innovation. On the contrary, policies that encourage the diffusion of ideas and modify patent laws to facilitate entry and encourage competition may be an effective mechanism to encourage innovation.[90]

In support of that argument, Jörg Baten, Nicola Bianchi and Petra Moser[91] find historical evidence that especially compulsory licensing – which allows governments to license patents without the consent of patent-owners – encouraged invention in Germany in the early 20th century by increasing the threat of competition in fields with low pre-existing levels of competition.

Peter Drahos notes, "Property rights confer authority over resources. When authority is granted to the few over resources on which many depend, the few gain power over the goals of the many. This has consequences for both political and economic freedoms with in a society."[92]:13

The World Intellectual Property Organization (WIPO) recognizes that conflicts may exist between the respect for and implementation of current intellectual property systems and other human rights.[93] In 2001 the UN Committee on Economic, Social and Cultural Rights issued a document called "Human rights and intellectual property" that argued that intellectual property tends to be governed by economic goals when it should be viewed primarily as a social product; in order to serve human well-being, intellectual property systems must respect and conform to human rights laws. According to the Committee, when systems fail to do so they risk infringing upon the human right to food and health, and to cultural participation and scientific benefits.[94][95] In 2004 the General Assembly of WIPO adopted The Geneva Declaration on the Future of the World Intellectual Property Organization which argues that WIPO should "focus more on the needs of developing countries, and to view IP as one of many tools for development—not as an end in itself".[96]

Further along these lines, The ethical problems brought up by IP rights are most pertinent when it is socially valuable goods like life-saving medicines are given IP protection. While the application of IP rights can allow companies to charge higher than the marginal cost of production in order to recoup the costs of research and development, the price may exclude from the market anyone who cannot afford the cost of the product, in this case a life-saving drug.[97] "An IPR driven regime is therefore not a regime that is conductive to the investment of R&D of products that are socially valuable to predominately poor populations".[97]:1108–9

Libertarians have differing views on intellectual property.[citation needed] Stephan Kinsella, an anarcho-capitalist on the right-wing of libertarianism,[98] argues against intellectual property because allowing property rights in ideas and information creates artificial scarcity and infringes on the right to own tangible property. Kinsella uses the following scenario to argue this point:

[I]magine the time when men lived in caves. One bright guy—let's call him Galt-Magnon—decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and others notice it. They naturally imitate Galt-Magnon, and they start building their own cabins. But the first man to invent a house, according to IP advocates, would have a right to prevent others from building houses on their own land, with their own logs, or to charge them a fee if they do build houses. It is plain that the innovator in these examples becomes a partial owner of the tangible property (e.g., land and logs) of others, due not to first occupation and use of that property (for it is already owned), but due to his coming up with an idea. Clearly, this rule flies in the face of the first-user homesteading rule, arbitrarily and groundlessly overriding the very homesteading rule that is at the foundation of all property rights.[99]

Thomas Jefferson once said in a letter to Isaac McPherson on August 13, 1813:

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."[100]

In 2005 the RSA launched the Adelphi Charter, aimed at creating an international policy statement to frame how governments should make balanced intellectual property law.[101]

Another aspect of current U.S. Intellectual Property legislation is its focus on individual and joint works; thus, copyright protection can only be obtained in 'original' works of authorship.[102]

Expansion in nature and scope of intellectual property laws

Expansion of U.S. copyright law (Assuming authors create their works by age 35 and live for seventy years)
Other criticism of intellectual property law concerns the expansion of intellectual property, both in duration and in scope.

In addition, as scientific knowledge has expanded and allowed new industries to arise in fields such as biotechnology and nanotechnology, originators of technology have sought IP protection for the new technologies. Patents have been granted for living organisms,[103] (and in the United States, certain living organisms have been patentable for over a century).[104]

The increase in terms of protection is particularly seen in relation to copyright, which has recently been the subject of serial extensions in the United States and in Europe.[74][105][106][107][108] With no need for registration or copyright notices, this is thought to have led to an increase in orphan works (copyrighted works for which the copyright owner cannot be contacted), a problem that has been noticed and addressed by governmental bodies around the world.[109]


RIAA representative Hilary Rosen testifies before the Senate Judiciary Committee on the future of digital music (July 11, 2000)
Also with respect to copyright, the American film industry helped to change the social construct of intellectual property via its trade organization, the Motion Picture Association of America. In amicus briefs in important cases, in lobbying before Congress, and in its statements to the public, the MPAA has advocated strong protection of intellectual-property rights. In framing its presentations, the association has claimed that people are entitled to the property that is produced by their labor. Additionally Congress's awareness of the position of the United States as the world's largest producer of films has made it convenient to expand the conception of intellectual property.[110] These doctrinal reforms have further strengthened the industry, lending the MPAA even more power and authority.[111]

The growth of the Internet, and particularly distributed search engines like Kazaa and Gnutella, have represented a challenge for copyright policy. The Recording Industry Association of America, in particular, has been on the front lines of the fight against copyright infringement, which the industry calls "piracy". The industry has had victories against some services, including a highly publicized case against the file-sharing company Napster, and some people have been prosecuted for sharing files in violation of copyright. The electronic age has seen an increase in the attempt to use software-based digital rights management tools to restrict the copying and use of digitally based works. Laws such as the Digital Millennium Copyright Act have been enacted that use criminal law to prevent any circumvention of software used to enforce digital rights management systems. Equivalent provisions, to prevent circumvention of copyright protection have existed in EU for some time, and are being expanded in, for example, Article 6 and 7 the Copyright Directive. Other examples are Article 7 of the Software Directive of 1991 (91/250/EEC), and the Conditional Access Directive of 1998 (98/84/EEC). This can hinder legal uses, affecting public domain works, limitations and exceptions to copyright, or uses allowed by the copyright holder. Some copyleft licenses, like GNU GPL 3, are designed to counter that.[112] Laws may permit circumvention under specific conditions like when it is necessary to achieve interoperability with the circumventor's program, or for accessibility reasons; however, distribution of circumvention tools or instructions may be illegal.

In the context of trademarks, this expansion has been driven by international efforts to harmonise the definition of "trademark", as exemplified by the Agreement on Trade-Related Aspects of Intellectual Property Rights ratified in 1994, which formalized regulations for IP rights that had been handled by common law, or not at all, in member states. Pursuant to TRIPs, any sign which is "capable of distinguishing" the products or services of one business from the products or services of another business is capable of constituting a trademark.[113]

Use in corporate tax avoidance
See also: Corporate tax haven
Make no mistake: the headline [tax] rate is not what triggers tax evasion and aggressive tax planning. That comes from schemes that facilitate profit shifting.
Pierre Moscovici
European Commissioner for Tax
Financial Times, 11 March 2018[114]
"It is hard to imagine any business, under the current [Irish] IP regime, which could not generate substantial intangible assets under Irish GAAP that would be eligible for relief under [the Irish] capital allowances [for intangible assets scheme]." "This puts the attractive 2.5% Irish IP-tax rate within reach of almost any global business that relocates to Ireland."
KPMG, "Intellectual Property Tax", 4 December 2017[115]
Intellectual property has become a core tool in corporate tax planning and tax avoidance.[116][117][118] IP is a key component of the leading multinational tax avoidance base erosion and profit shifting (BEPS) tools,[119][120] which the OECD estimates costs $100–240 billion in lost annual tax revenues,[121] and includes:

Using IP royalty payment schemes to profit shift income from higher-tax locations to lower-tax locations (such as the Facebook 2012 double Irish and the Microsoft 2015 single malt BEPS tax schemes);[122][123]
Using IP royalty payment schemes to overcome EU withholding tax protections (such as the circa 2007 Google dutch sandwich BEPS tax scheme);[124]
Using advanced IP GAAP accounting to create intangible assets which can be expensed against taxation in certain IP-beneficial regimes (such as the Apple 2015 Irish capital allowances for intangible assets BEPS tax scheme);[125][126]
Using advanced IP GAAP accounting to maximize the effect of corporate relocations to low-tax regimes (used by Accenture in their 2009 U.S. corporate tax inversion to Ireland).[127]
In 2017–2018, both the U.S. and the EU Commission simultaneously decided to depart from the OECD BEPS Project timetable, which was set up in 2013 to combat IP BEPS tax tools like the above,[121] and launch their own anti-IP BEPS tax regimes:

U.S. Tax Cuts and Jobs Act of 2017, which has several anti-IP BEPS abuse tax regimes, including GILTI tax and the BEAT tax regimes.[128][129][130]
EU Commission 2018 Digital Services Tax, which is less advanced than the U.S. TCJA, but does seek to override IP BEPS tools via a quasi-VAT.[131][132][133]
The departure of the U.S. and EU Commission from the OECD BEPS Project process, is attributed to frustrations with the rise in IP as a key BEPS tax tool, creating intangible assets, which are then turned into royalty payment BEPS schemes (double Irish), and/or capital allowance BEPS schemes (capital allowances for intangibles). In contrast, the OECD has spent years developing and advocating intellectual property as a legal and a GAAP accounting concept.[134]

The EU Commission's €13 billion fine of Apple's pre-2015 double Irish IP BEPS tax scheme, is the largest corporate tax fine in history.[135]

Many people ask: can ideas be patented? The short answer is no. Unfortunately, despite what you may have heard from late night television commercials, there is no effective way to protect an idea with any form of intellectual property protection. Copyrights protect expression and creativity, not innovation.  Patents protect inventions. Neither copyrights or patents protect ideas. This is not to suggest that ideas are not valuable, but they are not valuable in the same way or sense that pop culture has led many to believe.

It is, of course, axiomatic that an idea is an essential first step toward any invention. Nothing can or will happen without an idea, so in one sense ideas are a critical, and valuable, piece to the overall innovation equation. In and of themselves, however, ideas are not monetarily valuable. Without some identifiable manifestation of the idea there can be no intellectual property protection obtained and no exclusive rights will flow.

Without any protection, whether actual (i.e., in the form of an issued patent) or perceived (i.e., in the form of a pending patent application that defines the invention and could if pursued mature into an issued patent), ideas are free. Absent patent protection or a confidentiality agreement that accepts an obligation not use or disclose an idea – which are extremely difficult if not impossible to obtain with only an idea – the idea can be taken and used without payment.

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While confidentiality agreements, or non-disclosure agreements as they are sometimes called, are absolutely essential for inventors in the early stages to protect their idea, the problem is they are only going to provide protection with respect to those who have accepted the confidentiality obligation. And if and when the confidentiality obligation is broken you only have a claim for breach of contract (i.e., breach of the confidentiality agreement), but the trade secret that was your invention will no longer be a secret. So, before you would be tempted to believe there is a broad based way to protect an idea without it maturing into an invention that can be patented, or even an invention without a patent, you need to consider spend time to understand the purposes and limitations of confidentiality agreements (see here and here) and trade secrets (see here, here and here).

This does not mean that inventors, or those who aspire to become inventors, should give up at the idea stage when the realization is made that there is only an idea present without some identifiable manifestation, but it does mean that more work is necessary in order to flesh out the idea and bring it across the idea innovation boundary. The goal is to get to the point where the idea it is concrete enough to be more than what the law would call a mere idea.

The moral of the story is that mere ideas cannot be protected, so inventors need to think in terms of an invention.  Inventions can be patented. Ideas cannot be patented. So, you do not have an idea, you have an invention, or you will have an invention if you continue on your journey and don’t give up. You just need to get from the idea that inevitably begins the process to an invention, which is the culmination of the innovation part of the journey. And once the culmination of the innovation journey is realized then it becomes time to file a patent application.

As one contemplates moving from idea to invention to patent and ultimately, hopefully riches, a dose of reality is in order. First, stop thinking you will get rich by selling your ideato industry and sitting back and collecting royalty checks for doing nothing. That may be what late-night TV commercials want you to believe, but it is not reality. If inventing were as easy as thinking up an idea and riches would follow practically everyone would be a rich inventor! Ideas are a dime a dozen. They are valuable because they are a necessary part of the innovation journey, but it is not the idea in and of itself that creates monetary value, rather the valuable proposition inventors provide those interested in buying or licensing invention rights is found in the solution.

Inventors make money by identifying a problem, formulating an idea about how that problem can be solved, and then creating a solution. For example, the observation that using a snow shovel to clear snow is a back-breaking endeavor is obvious to anyone who has ever shoveled snow. The desire or belief that there has to be a better way to remove snow from a residential driveway is likewise not revolutionary, or particularly valuable. The idea that a mechanized solution would make the process faster, easier and cause fewer muscle injuries is a good one, but without the offer of any kind of solution the mere idea that a mechanized solution would be fantastic doesn’t create any value. But if you were the first person actually able to build a mechanized solution that would throw (or blow) the snow off a driveway you would have an invention that could be patented, and one that could be quiet valuable in the hands of the right licensee. Perhaps royalty checks would roll in, but would it be for doing nothing? That mailbox income that might show up every quarter for years is attributed to the work done to create a valuable solution to the problem. The idea matured into an identifiable manifestation that was valuable in the hands of another. An inventor’s dream, but hardly money for doing nothing, although the inventor’s work is frontloaded in this monetization scenario.


Figure 1 from U.S. Patent No. 3,921,315

Essentially, what inventors need to do is identify a problem, formulate the idea and then work toward finding a solution. The above example of a snow blower is an illustration of a common inventive idea becoming a reality by identifying a task that can be made easier with a new device. The snow blower pictured here was patented on November 25, 1975 and is titled Snow Blower Safety Chute.The improvement here is with respect to element 22, the safety chute. The patent explains that despite manufacturer warnings people injure themselves every year because when they attempt to clean out the compacted snow from the discharge chute, they do not stop the engine. Thus, the inventor’s desire was to prevent injuries because a certain number of people – perhaps many – won’t follow safety directions despite being warned.

The idea was to create a chute that could be safely cleared while the engine was still running. The solution was the use of prongs extending downward into a portion of the chute, which could be manipulated by the user to loosen the packed snow safely while the engine was still running. The valuable proposition is the solution to the problem, not the identification of the problem, which the manufacturers knew about because warnings not to clear the discharge chute with the engine running were included.

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Many people will come up with ideas, you’ve no doubt heard many friends and family talk about their invention ideas. I need a tool that does X, why hasn’t someone thought of Y, this would be better if only it did Z. For most people that is as far as they get, but inventors will go farther, but sometimes will still find themselves getting stuck in the idea phase. If that happens don’t just throw in the towel. Many good many inventors will become stuck in the idea phase from time to time, so if that is where you are you are not alone.

First, it may surprise you to learn that you just think you are stuck in the idea phase and you might actually have an invention without even knowing it yet. United States patent laws do not require you to have a prototype in order to apply for a patent, all that is required is that you be able to describe the invention so that others could make and use it. So, while you do need to have some kind of identifiable manifestation, you can start by proving your concept on paper.

With some guidance to coax out your idea you might actually have more than you think. For example, with the help of someone familiar with CAD and can help you create detailed 2D drawings and 3D renderings of what you are thinking about, you might soon realize you have an invention and not a mere idea. For example, Enhance Product Developmentworks with inventors to help them turn their inventions into reality, but they also work with those who are on the path toward becoming inventors and who need help at the ideation or concept stage.

Many people will have great ideas, but what separates those who can turn their ideas into money from those who cannot is a strategy to define the idea with enough specificity so that it can become an asset that can ultimately be protected. To profit from your idea you must package it so that it is something the law will recognize as protectable.

If you are having difficulty moving out of the idea phase and into the invention phase take a look at Moving From Idea to Patent and About the Invention Process. These articles will provide some insights and help you formulate a plan for reaching the invention stage, which is where you want to be in order to commercialize and monetize your ideas. The Invent + Patent System™ can also help. The Invent + Patent System™is an innovative approach to the patent process that assists inventors in drafting their own provisional patent application. The Invent + Patent System™ has also been effectively used to coax inventors into formulating their ideas in a more tangible way so that the concepts move from a pure idea into something descriptive enough to be legally viewed as an invention.

I also encourage all inventors and would-be inventors to read One Simple Idea: Turn Your Dreams into a Licensing Goldmine, which is an excellent book written by Stephen Key of Invent Right. Although the title may sound like it contradicts some I’ve written above, Key is also the author of Sell Your Ideas With or Without a Patent, which is another a must read. Key preaches filing provisional patent applications to create perceived ownership (a term I’ve adopted from him). I’ve long been a fan of provisional patent applications, which have only become more important now that the U.S. has become a first inventor to file system.

First to file has to be interpreted as file first, which makes filing provisional patent applications quickly after an idea has matured into an invention is absolutely critical.  Of course, a poorly prepared and hastily filed provisional patent application will provide little or no benefit. For more information on provisional patent applications please see:

Provisional Applications: The Good, the Bad and the Ugly
Provisional Patents: What are they and why do you need them?
The Benefits of a Provisional Patent Application



The protection of intellectual property and the proper allocation of intellectual property ownership is the pivotal bedrock upon which our rules-based society and market economy rest. A thorough understanding of how to allocate intellectual property ownership is critical for entrepreneurs and business owners to grow their businesses upon developing new ideas and new creations.

Why Protect Intellectual Property?

Property rights are enshrined in the US constitution. This hallowed legal document was created with an eye towards guaranteeing the property rights of all Americans.

However, what about intellectual property rights?

Intellectual property is a type of intangible asset. However, these so-called intangible assets are no less valuable than traditional assets such as land and physical property. In the modern economy, intellectual property is often much more valuable than conventional assets. Many great startups and businesses are built entirely upon intangibles and intellectual property. Intellectual property protection allows these companies and businesses to benefit from their work or their investments in their ideas and creations.

While notions of protecting tangible property have existed in some form since the beginning of recorded human history, protection of intellectual property, however, is a relatively recent invention. The legitimacy of intellectual property wasn’t recognized until the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). Nonetheless, today intellectual property has become critically important and worth protecting.

Default (Background) Intellectual Property Ownership

Even without an agreement or a contract in place, ownership of certain intellectual propertyrights can be determined by common law precedent.

Ownership of intellectual property can be owned by one entity, typically the creator, in the form of Sole Ownership.

One or more creators can also own ownership of intellectual property through Joint Ownership.

Ownership vs. Licensing

Licensing is not a formal allocation of ownership. Instead, it is a transfer from one party to another of limited rights to use or exploit intellectual property. When intellectual property is licensed, the original owner (licensor) still retains ownership rights.

WHAT IS INTELLECTUAL PROPERTY?

According to the World Intellectual Property Organization (WIPO), intellectual property:

“…refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce."

It is a blanket term for a variety of assets created by the mind otherwise classified as intangible property. The rights to the intellectual property can be claimed exclusively by the creator or recipient of ownership transfer and covers the expression of an idea rather than the idea itself.

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IP law includes ways to protect the creative expressions of the intellect that carry commercial and moral value. There are several types of intellectual property including:

• Trademarks
• Patents
• Industrial designs
• Copyright

Intellectual property rights are believed to encourage the creative process as well as promote investment by ensuring the investors receive a return on their investment.

WHAT IS A COPYRIGHT?

Copyright, then, is the protection extended to the creator of an original work. It provides the sole rights to the use and distribution of the work and normally ends after a specific period of time. After the time is up, the copyright can be renewed, or the work will pass into the public domain where it legally may be used without giving notice of the original creator and without the need for recompense to the former owner.

A copyright can also be sold and the ownership transferred to a different entity which is then the recipient of any recompense from its use and retains sole rights for use and distribution.

Copyrights protect a wide variety of expressions of an idea including:

• Books and literary works
• Written and recorded music
• Works of art
• Photographs and images
• Plays

Copyright grants the right to display a work via video or radio, present the work publicly, and create or sell copies of the work as well as derivations of the work.

Thanks to Sonny Bono, a rare entertainer who entered Congress, current US law provides for a copyright to extend 50 to 100 years following the death of the creator. More specifically, works that were first created on or after January 1, 1978, secured Federal Statutory Protection from the moment of creation for the life of the creator plus an additional 70 years. (By the way, this information is from a document created and copyrighted by the United States Copyright Office.)

Copyrights get tricky, though. The Copyright Act of 1976 was amended in 1998 to establish a single copyright term but different methods for computing the duration of the copyright. Copyrighted works fall into two categories; the first type is mentioned above: those works first created on or after January 1, 1978.

Works already in existence but not published or copyrighted on January 1, 1978, receive copyright protection but the calculation for the number of years after the creator’s death differs depending on the nature of authorship. It could be life plus 70, 95, or 120 years. All works are guaranteed at least 25 years of copyright protection.

There are several other variations and calculations depending on when the original copyright was obtained, when it expired, and whether an automatic renewal or extension occurs.

COPYRIGHT AS INTELLECTUAL PROPERTY PROTECTION

Intellectual property is protected by laws specific to the expression of an idea. Copyright is the law specific to the expression of ideas in visual or audio form. Unlike a trademark that indicates a specific item or design is protected, copyright covers a different expression of thought.

The term copyright contains within it the meaning of the term: the right to the copy. Copy is anything written, photographed, drawn, painted, or otherwise produced as an audible, written, or visual piece of intellectual property.

You cannot compare copyright with intellectual property; copyright is a form of intellectual property. Defending a copyright requires different expertise from defending a trademark. If you require legal advice on a copyright issue, make sure the attorney you select understands your particular needs.

Just because someone is a patent lawyer does not mean he or she can knowledgeably defend your copyright.

Intellectual Property Protection

Patent Law ResourcesStartup Law ResourcesIntellectual PropertyHow to Patent an IdeaProvisional PatentPatent PendingDesign PatentPlant PatentUtility Patent

Intellectual Property Protection. What entrepreneurs and business owners need to know about the basics of intellectual property law to protect your business IP.7 min read

Intellectual Property Protection

Intellectual Property Protection is protection for inventions, literary and artistic works, symbols, names, and images created by the mind. Learn how you can protect your intellectual property by using: Patents, Trademarks, Trade Secrets, and Copyrights.

Intellectual Property Protection Explained

Entrepreneurs and business owners need to understand the basics of intellectual property (IP) law to best protect their hard-earned creations and ideas from unfair competition. Intellectual property includes distinctive items that you have created and ones that give you an economic benefit.

Seek professional experience from an intellectual property attorney to help your company plan for success and avoid theft of ideas, designs, and other concepts. Since filing and refiling IP applications can get expensive and waste time if done incorrectly, determine what you need to protect when it comes to IP:

• Decide which of your ideas fall under which specific protection option
• File as quickly as possible to reduce your chance of losing out on protection
• Investigate international patents as well as those registered in the United States

Make sure to plan and execute your planned strategy as soon as you start your company or invent something new.

Four Types of IP Protection for Businesses

You'll find four main types of IP protection for your business:

1. Patents

A patent grants property rights on an invention, allowing the patent holder to exclude others from making, selling, or using the invention. Inventions allow many businesses to be successful because they develop new or better processes or products that offer competitive advantage on the marketplace. You get a patent by filing a patent application with the U.S. Patent and Trademark Office (USPTO).

You'll discover three types of patents:

• Utility
• Design
• Plant

A utility patent is the most common type, covering any process, machine, article of manufacture, or composition of matter, or any new and useful improvements thereof.

To qualify for a utility patent, the invention must be novel, nonobvious, and have some usefulness. Novel means new and not known by anyone else, while nonobvious means that it can't be immediately obvious to someone having ordinary skills in the industry. A design patent covers any new, original, and ornamental design for an article of manufacture, while a plant patent covers any new variety of asexually produced plant. A design patent lasts for 14 years, and a utility or plant patent lasts for 20 years.

With patent protection, the payent holder can take legal action against anyone who copies the patented invention, design, or discovery. Without this legal protection, anyone can use similar designs, products, and processes without risk. In fact, if you don't file for patent protection on your invention within 12 months of releasing it in a public setting, the opportunity to patent it will be gone.

Other companies or individuals can also file for a patent on your idea, taking away your chance to do so first. When reviewing patent applications and violations, the USPTO will usually default to the individual who submitted the application first, since proving who used something first is nearly impossible.

Before filing for a patent, you should determine who will own the idea. Some companies file for patents on their protected inventions, but if an employee came up with the idea, the individual may be granted holder of the patent. If your business owns the patent, you must protect the patent with the company by having employees involved in the invention process sign an agreement stating that the idea belongs to the company.

The patent application process is complicated, one that could take up to six years and cost thousands of dollars, so the USPTO recommends that you hire a qualified patent attorney or agent to file your patent. To maintain the force of the patent, you must pay fees due at 3 1/2, 7 1/2, and 11 1/2 years after the patent grant. The total amount of maintenance fees for a small entity, such as an independent inventor, is $4,430, while for others the total is $8,860. Visit the USPTO website for more information about patent applications.

Certain industries rely on patents more heavily than others. For example, pharmaceuticals go through extensive and costly testing procedures to make sure that products are safe for human use. When spending considerable money on a product, applying for a patent is one of the only ways that pharmaceutical companies can protect their investments. Without a patent, any other company could manufacture an exact replica of the drug.

In March 2011, the U.S. Senate passed The America Invents Act, one of the most significant changes to patent law in the last century. The final details of the laws are still under review, but its purpose is to change what makes an idea patentable. This act also increases the protections for the first person or company to file for a patent. Critics of the act believe that the regulation may be biased toward larger companies with more funds available to patent ideas quickly.

Those on the opposite side believe that patents and other forms of protection restrict free trade and economic growth. But IP protection laws are still in place and designed to protect inventors, business owners, and creators.

2. Trademarks

A trademark is a word, phrase, symbol, or design that distinguishes the source of products (trademarks) or services (service marks) of one business from its competitors. In order to qualify for patent protection, the mark must be distinctive. For example, the Nike "swoosh" design identifies athletic footware made by Nike.

Although rights in trademarks are acquired by use, registration with the USPTO allows you to more easily enforce those rights. Before registering your trademark, conduct a search of federal and state databases to make sure a similar trademark doesn't already exist. This trademark search can help you reduce the amount of time and money you could spend on using a mark that is already registered and trademarked.

To apply, you must have a clear representation of the mark, as well as an identification of the class of goods or services to which the mark will apply. You can submit an online application, and filing fees vary according to several factors, including the form type and the number of classes of goods or services. Trademarks expire after 10 years, and renewal terms are 10 years.

Before receiving approval from the USPTO, companies and people can use the TM symbol to indicate ownership of the mark. Upon approval, you can legally add the registered trademark symbol (®) to your mark. The TM symbol doesn't hold any legal weight, but it can indicate to other businesses or people in your industry that you intend to claim the mark.

To register a trademark, you can:

1. File a "use" application after using the mark.
2. File an "intent to use" application before using the mark .

If a foreign application exists, a trademark holder might be able to rely on that application for use in the United States. Filing an application is complex, so most applicants hire an attorney who specializes in trademarks.

3. Trade Secrets

A trade secret is a formula, process, device, or other business information that companies keep private to give them a business advantage over their competitors. Examples of trade secrets include:

• Soda formulas
• Customer lists
• Survey results
• Computer algorithms

Unlike the other types of intellectual property, you can't obtain protection by registering your trade secret. Instead, protection lasts only as long as you take the necessary steps to control disclosure and use of the information.

Businesses use nondisclosure agreements, restricted access to confidential information, post-employment restrictive covenants, and other security practices to maintain trade secrets.

When protecting intellectual property, look at competitors and others in the industry as if they are in competition for your ideas. Protecting yourself and your company is the best way to make sure that no one else can use your distinctive inventions, works, marks, or other ideas. Meet often with employees to keep them aware of what must stay out of public discussion and away from competitors. Physical and digital protection of ideas is also necessary, so track who has access and limit who can get into important databases.

Looking at the risk and cost-benefit analysis can also help you decide what's worth protecting. Protection of intellectual property often comes at a high cost and takes much time, so make sure your time and money is worth the investment.

4. Copyrights

Copyrights protect original works of authorship, such as literary works, music, dramatic works, pantomimes and choreographic works, sculptural, pictorial, and graphic works, sound recordings, artistic works, architectural works, and computer software. With copyright protection, the holder has the exclusive rights to modify, distribute, perform, create, display, and copy the work.

In order to qualify under copyright laws, the work must be fixed in a tangible medium of expression, such as words on a piece of paper or music notes written on a sheet. A copyright exists from the moment the work gets created, so registration is voluntary.

However, registered works may be eligible for statutory damages and attorneys fees in a copyright infringement suit, so you may want to consider registering your work through the U.S. Copyright Office. You can register your copyright online by completing an application, submitting a nonrefundable fee of $35, and sending in a nonreturnable copy of your work.

The average processing time for e-filed copyright applications is 2 1/2 months and a little more than 5 1/2 months for paper filing. Copyright duration depends on several factors, but generally for works created after Jan. 1, 1978, the copyright lasts for the life of the author plus an additional 70 years and is nonrenewable. You can visit the U.S. Copyright Office website for more information.

10 Effective Ways To Protect Your Intellectual Property

As your new invention comes to light, your initial thought may be to let the world know. While shouting your success from the rooftops is appealing, before you do, you need to consider how best to protect what you have worked so hard to develop.

Patents and copyrights can offer you some security, but don’t always mean that your design is completely protected, as copies can certainly emerge. There are, however, a number of other options available to you, each with their own strengths.

Below, 10 members of Forbes Technology Councilweigh in on some less-common, yet still effective, ways to protect your intellectual property. Here’s what they recommend:

1. Don't File Patents

The most uncommon way to protect intellectual property is not to file patents. Filing patents provides the recipe of how a product or service can be created. Once a recipe is published, one can create a similar product with workarounds to not violate the intellectual property rights. The second method is to standardize the idea with a standards association, so that others are blocked from creating such an idea. -Naresh Soni, Tsunami ARVR

2. Run Lean And Fast

Innovation in the tech sector will always be prone to plagiarism. To some extent, that's what drives innovation's evolutionary jumps in such quick succession. Having relentless innovation cycles keeps your competitors constantly catching up. That does require your company to run like an Olympic runner — lean and fast. - Daniel Hindi, BuildFire

3. Separate Teams

Our engineering teams are separated geographically, and we make a point that none of these teams have access to the complete product. In order to undermine the security and sanctity of our product, several of these teams would need to work together to steal the total product. Separation of duties is a basic tenet of information security, and we have to practice what we preach. - Tim Maliyil, AlertBoot

Forbes Technology Council is an invitation-only community for world-class CIOs, CTOs and technology executives. Do I qualify?

4. Open-Source It

It may seem counterintuitive, but one of the best ways to build a competitive advantage is to open-source your technology and tap into a broad community of developers. This way, your company can focus on the added value on top of the technology stack that remains proprietary, and can execute with speed and agility. - Winnie Cheng, Io-Tahoe LLC

5. Avoid Joint Ownership

Make sure to avoid joint ownership of intellectual property at all costs. Joint ownership creates problems later on that could make it difficult to protect, hurting all parties involved. - Chalmers Brown, Due

6. Get Exact-Match Domains

If you can, one of the best intellectual property securement methods for trademarks (that you actually own) is an exact-match domain name. While a costlier objective in the short run, the windfall of benefits in the long run is unrivaled. - Michael Gargiulo, VPN.com

7. Safeguard With Strong Access Control

Store manuscripts, creations and all ideas in a safe place that’s protected by an identity and access-management solution. With 81% of breaches being due to compromised credentials, it’s essential to store intellectual property on a system that uses adaptive authentication with risk analysis, or at least two-factor authentication. Passwords alone are obsolete. - Keith Graham, secureauth.com

8. Get Strong Non-Disclosure Agreements

Get assistance with creating well-written non-disclosure agreements. Also, look at any other agreements you use in your business to make sure they cover your intellectual property. These could include employment agreements, licenses, and sales contracts. - Muhammed Othman, Calendar

9. Keep It Quiet And Out Of Sight

Classic ways of protecting IP often involve patenting or copyrighting works and techniques, and vigorously defending them in court. Modern techniques involve using Digital Rights Management systems. A now somewhat uncommon way that is still effective is to simply keep things secret and limit exposure to the trade secrets that make up the IP, and design the system to keep them hidden. - Chris Kirby,Voices.com

10. Publish It Widely With Attribution

While patents require being the "first to file" in the U.S. these days — and that's still the best way to protect your non-trade secret IP — another common way to ensure that your IP is seen as yours is to publish and reference it widely, always ensuring that your company's name is attributed to where it is mentioned. The more you are seen online with your IP, the more support your patents have. - David Murray, Doctor.com