1. What Is an Intellectual Property Patent?
2. Types of Intellectual Property
3. Can Ideas Be Protected or Patented?

What Is an Intellectual Property Patent?

An intellectual property patent is a patent protecting something an individual has created, including works of art and literature, inventions, symbols, designs, names, and images. Intellectual property, or IP, that is protected by a patent, copyright, or trademark cannot be used by another person or company. This gives the individual or entity who created the IP ownership interest under the law, allowing them to benefit from their labor financially or through recognition. This, in turn, encourages others to create, thus promoting economic growth, improving processes, creating jobs, developing technologies, and fostering a more beautiful and interesting world. IP laws strive to balance the interests of IP creators with public interest to encourage creativity and innovation.

Types of Intellectual Property

Strict laws exist to protect intellectual property rights. Various types of intellectual property are recognized by patent law. The word copyright refers to the legal rights that IP creators have over their creation. A copyright allows the IP owner to benefit from his or her work and prohibits others from doing so without permission. Note that the ideas themselves are not protected by copyright; rather, these laws protect the specific ways that ideas are expressed. Formats that can be copyrighted include paintings, films, sculpture, music, books, computer programs, maps, advertisements, databases, and technical drawings.

A patent is a type of copyright given to an invention that protects the invention from being used, made, or sold by others for a specified time period. The patent gives the patent owner the right to decide how his or her invention is used by others, if at all. The patent owner must make information about his or her invention available in a published patent document. The United States recognizes three types of patents:

  • Utility patents protect things with a specific function, such as technology, machines, or chemicals.
  • Design patents protect the unique appearance of a manufactured item. These ornamental aspects of an item include both three-dimension features such as the shape or size and two-dimensional features such as colors, lines, and patterns.
  • Plant patents are specifically for asexually reproduced plant varieties and hybrids.

Inventors who wish to patent their IP must apply and be approved for a patent through the U.S. Patent and Trademark Office. An intellectual property attorney can help inventors file their paperwork correctly and thus make the invention profitable.

A trademark is a symbol designed to distinguish a certain company's goods or services from those offered by other companies. A business can begin using the TM symbol without applying or registering through the government. Trademarks first came into use during ancient times when craftsmen put unique marks on their products.

A geographical indication is a sign that an item comes from a specific place of origin and thus has characteristics attributable to this location. This indication is usually simply the name of the place of origin.

Can Ideas Be Protected or Patented?

Ideas are not considered IP and cannot be protected by either a patent, which protects inventions, or a copyright, which protects expressions. Although ideas are the first step of both these creations, without the invention or expression, there is nothing to protect. Those who wish to protect an idea must develop it to the extent that it could be considered an invention or expression by law.

If you wish to apply for a patent, U.S. law does not require you to develop a prototype. You can do so with 3D renderings or professional illustrations. An idea with a unique appearance constitutes a design patent, but most experts recommend applying for both a utility and design patent.

If you have an idea for a story or other work of art, you must actually begin creating the work itself to become eligible for protection under copyright laws. Once the draft is complete, it is automatically copyrighted. You can designate your IP as copyright by using the C symbol in a circle. However, to sue for copyright infringement, you must register your copyright with the federal government. The fee to register a copyright is $45.

According to the United States Court of Appeals for the Federal Circuit, an idea combined with a plan for putting the idea into motion constitutes conception. This is the formation of a definite, permanent idea for an invention. The person who can prove first conception is the one who will receive exclusive patent rights. While invention was once synonymous with conception, the passage of the America Invents Act on March 16, 2013, states that the first to file for a patent is the IP owner. While there are exceptions, these are narrow and difficult to prove.

One common myth, the "poor man's copyright," indicates that if you mail your work to yourself, it protects the idea. This does not create exclusive rights to an invention. If you want to patent an invention, you must file the patent application before anyone else. For this reason, you should never demonstrate or disclose your invention before applying for a patent. The exception is your attorney since you are protected by attorney-client confidentiality.

You can also ask a person to sign a confidentiality agreement and sue them for breach of contract if they break that agreement. However, if you are approaching a business to sell them your invention, they won't necessarily agree to sign such an agreement. Some companies say that doing so opens them to liability. Others only accept outside inventions that are already patented. Applying for a provisional patent application can be used to potentially sell the invention and gives you legal rights.

If you need help with an intellectual property patent, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.