What is Intellectual Property?
by Thomas V. Bennett

What, you may ask, is intellectual property? Assets owned by intellectuals? In fact, intellectual property, although not a new concept, has been broadly expanded as technology has developed.
 

To understand intellectual property, it helps to examine more familiar types of property. Real property includes your house or condominium. Personal property includes tangible assets like your personal belongings and automobile, and intangible holdings such as your bank account or your interest in a business.
 

Intellectual property is a type of intangible personal property. Like other property, you can own, use, buy, sell or lease intellectual property. Leasing intellectual property is commonly called licensing.
 

One difference between intellectual property and other property is the difficulty of establishing and protecting ownership. You protect your house or condominium by recording your interest at the Registry of Deeds. Likewise, your car is registered and your personal belongings are in your physical possession. Intellectual property law concerns legal rights to the fruits of mental labor and presents special problems.
 

Methods of protecting intellectual property fall into several categories. A patent establishes rights in an invention and can be obtained by filing with the United States Patent and Trademark Office. A patented invention of local fame is the Polaroid camera. Like copyrights, patents are intended to encourage creativity and invention by increasing the potential for monetary gain. The holder of a patent has the right to exclude others from manufacturing, using or selling the invention for a period of 20 years.
 

A copyright protects "original works of authorship," whether written or in another form such as computer software, and regardless of whether the work has been published. It protects not ideas themselves, but only the particular form in which they are expressed. A copyright holder has the exclusive right to copy, distribute and prepare works based upon the original for the author's life plus 50 years. While the common law affords all original works some copyright protection, substantial benefits can be obtained by registering a copyright with the United States Copyright office.
 

Service marks, trademarks, and tradenames are intended to protect the goodwill of a business by preventing competitors from using the business well known name or logo. For instance, the name NIKE and the distinctive check mark associated with that name are the tradename and trademark of the NIKE company. Although limited protections can be acquired at common law through usage, federal registration offers additional benefits.
 

Trade secrets consist of specialized, confidential knowledge developed by and used in a business, such as chemical formulas, which is valuable because not generally known to the company s competitors. A company can enforce its rights to a trade secret only if it takes reasonable steps to protect the secret, such as by ensuring that its employees are aware that the information is, in fact, "secret." Often, employment contracts contain provisions dealing with trade secrets. The federal Industrial Espionage Act imposes stiff penalties for the theft of trade secrets.
 

The Internet presents special challenges for the protection of intellectual property. The laws which presently protect intellectual property are limited and do not adequately address the fundamental issues which have and will arise in Cyberspace. Available technology has far outpaced society s ability to document and protect intellectual property. Future articles will focus on how existing laws protect each type of intellectual property and on potential changes in the law.

If you have questions regarding this or any legal matter, please contact Thomas V. Bennett at tvb@barronstad.com or (617) 531-6574.