Intellectual property is intangible property that protects inventions, designs, and artistic work. In the U.S.A. there is a wide body of federal and state law that protects intellectual property, mainly patents, copyrights, trademarks, and trade secrets.
Intellectual Property Background
The Constitution of the United States permits federal IP law for copyrights and patents. (Article I Section 8, Clause 8 – Patent and Copyright Clause of the Constitution). However, trademarks are not mentioned. The federal government had created trademark law under the Commerce Clause in the Constitution (Article I, Section 8, Clause 3). This means that trademarks and other forms of intellectual property can be federally regulated via the authority to regulate commerce.
The federal government has been very active in creating IP law under the Constitution, but state laws are also important for the complete understanding of IP rights. Also, judicial decisions are central to the American system, and are important in the interpretation of provisions of law.
Under Article I, section 8 of the U.S. Constitution Congress has the power to make laws to grant patents. The Patent Act is the main law regarding patents and the U.S. Patent and Trademark Office (USPTO).
For patent protection, patents should be registered. Patent priority is based on the date of application. The USPTO publishes the Manual of Patent Examining Procedure (MPEP) that describes the laws and regulations for patent applications and also includes some case law.
There are three types of patents in the U.S.:
- Utility patents – cover the creation of any new or improved, useful, and nonobvious product, process, machine, or composition of matter. This is the most common type of patent. It protects the way an article is used and works.
- Design patents – for nay new, original, and ornamental design for a manufactured item. It protects the way a tangible product looks.
- Plant patents – for distinct and new variety of asexually reproduced plant, other than a tuber propagated plant or a plant found in an uncultivated state.
To obtain a patent in the U.S., applications should be submitted to the USPTO. This is usually done with a “patent agent” or an attorney. Utility patents generally grant protection for twenty years.
The Federal Food, Drug, and Cosmetic Act (FDCA) also has quasi-patent rights in unique areas of expertise.
Industrial designs are not expressly protected, but they may be protected as U.S. design patents, copyrights, or trade dress.
Under Article I, section 8 of the U.S. Constitution, Congress has the power to make laws to grant copyrights. The Copyright Act is the main law regarding copyright holders.
Copyright is created at the moment of creation of an original work of authorship fixed in any tangible medium of expression. Ideas, concepts, procedures, principles, discoveries, and systems cannot be protected by copyright.
Registration with the Copyright Office is not mandatory, but is beneficial in cases of litigation, and is also required for getting statutory damages in cases of infringement.
The protections granted to copyright holders are balanced against broad interests. As a result, the fair use doctrine permits the use of copyrighted material in certain cases, such as for teaching purposes, without acquiring permission from the copyright holder.
Under the Visual Artists Rights Act (VARA), covering the fine arts, authors of works of certain visual arts also have moral rights to their works, such as the right to claim ownership.
Ordinarily, work that was created and fixed on or after January 1, 1978 is protected for a term of the author’s life plus 70 years. If it was published before 1978, the term of protection changes. After the right expires, the works become public domain.
Trademarks are usually words, phrases, symbols, designs, or a combination of these. Sometimes, unique shape or color can be trademarked as “trade dress”. Trademarks are protected under the Lanham Act and administered by the USPTO, and are also protected under state law, both statutory and common law.
Federal registration of trademarks provides protections. For example, in case of lawsuit it shifts the burden of proof regarding the existence of a protectable mark in favor of the registrant.
The USPTO publishes the Trademark Manual of Examining Procedure (TMEP) that describes the laws and regulations for trademark applications and also includes some case law. An attorney can help with trademark application.
Trademarks receive different degrees of protection depending on many factors, including consumer awareness and the geographic area in which the trademark is used.
Undisclosed information, or trade secrets, have been protected under state common law, and later the Uniform Trade Secrets Act (UTSA). Forty-eight states and the District of Columbia have trade secret laws adopted from the Uniform Trade Secrets Act (UTSA).
The Defend Trade Secrets Act (DTSA), signed in 2016, provides a procedure for trade secret owners to file civil lawsuits in federal court, whereas before they could only bring civil lawsuits in state courts.
Trade secrets are not registered with a government agency. However, this does not lessen their importance as they may represent a company’s most valuable intellectual property assets.
Under its authority, Congress has granted regulatory authority to federal agencies in different areas of IP.
Following are the main agencies and their functions:
- U.S. Copyright Office registers claims of copyright and records copyright transfers under the Copyright Code.
- U.S. Patent and Trademark Office (USPTO) grants U.S. patents under the Patent Code and registers trademarks under the Lanham Act. It also hears certain disputes through the Patent Trial and Appeal Board (PTAB) and the Trademark Trial and Appeal Board (TTAB).
- U.S. Food and Drug Administration (FDA) is responsible for the Federal Food, Drug and Cosmetic Act (FDCA), including patents, exclusivity and other IP under the Act.
- Plant Variety Protection Office works under the Plant Variety Protection Act and issues Certificates of Protection to plant breeders.
- The International Trade Commission (ITC) is an agency that settles disputes involving the importation of potentially infringing goods.
Wiser IP Protection
Understanding federal intellectual property laws and regulations is critical to protecting your IP rights in the U.S.A. as well as in other countries. Protection under law is vital, but protecting your IP rights in the court system can prove to be time-consuming and expensive.
When it comes to online brand abuse, in the U.S. and around the world, Wiser Market offers quick, efficient, and cost-effective brand protection through our advanced system and team of experts who know how to protect your intellectual property online.
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