Understanding intellectual property is an important part of valuing the intellectual capital you have in your business. Research by the Federation of Small Businesses has shown that small businesses have difficulty protecting their intellectual property, with more than 25% of survey responders stating that they had suffered from a violation related to intellectual property within the past five years.

Many small business owners see intellectual property rights protection as something that's only done by larger firms or large corporations. It is important for small businesses to realize that intellectual property is a valuable asset to be protected and is not as expensive to protect as they may think.

When defining intellectual property, it is best to think of it as creations of the human mind that will have the legal rights that are associated with tangible property. There are varying statues and laws both at the state and federal level that govern the various aspects of each type of intellectual property. The actual expression "intellectual property" is now used as a broad term that covers five areas of law including:

What is a Patent?

Patent law is most often associated with inventions and involves the ownership of property rights of an inventor. While a patent will cover a concept or idea, it does not mean that the inventor will have a complete monopoly on an idea, invention, or process. 

The U.S. Patent and Trademark Office is the one to grant an inventor a patent and until one is granted the patent will not exist. It is important to realize that even though an invention may start with an idea, an idea is not able to be patented. Once your idea has grown into an actual invention, you can file for one of the three different patents available:

  • Design patent - which will cover the look and appearance of a useful object
  • Utility patent -  which will cover the functional aspect of the product or process that was invented
  • Plant patent - which will cover the propagation of plants and their hybrids

Along with the patent will come the right to exclude anyone from making, selling, or using the invention in the United States, as well as prevent the importing of the invention from other countries. The most common type of patent is a utility patent, and when someone uses the term generically, that is often what they are referring to.

When you need to obtain a utility patent for your invention, you will first need to file a non-provisional patent. Once you have filed the paperwork, you will need to go through an examination process where your application will be reviewed, and any other claims will be determined.

Some inventors will also file for a provisional patent which will give the inventor a patent-pending status as well as a priority with their application. While a provisional patent may be granted, it is still important to apply for a non-provisional patent, as a provisional patent can never mature into a patent.

Once a patent is approved, you will have exclusive rights that are granted to you by the government as a patent holder. Your rights will only extend to the rights that are granted in the patent. It is vital not to make the patent language so detailed that it cannot be commercially useful.

While each patent can be different, most utility patents are valid for 20 years from the date that the application is filed. In some situations, you may be able to apply for five-year extensions to your grant. This most commonly occurs with pharmaceutical patents.

When acquiring a design patent, you will most likely have the patent in effect for 14 years from the date that it is issued. Previously, design patents were considered weak, but legislation in 2008 strengthened the ability to enforce one.

What is a Copyright? 

Copyright protection is used to protect original works of art both published and unpublished from being reproduced or copied without permission. Current copyright law is broad and covers such things as:

  • Graphic elements of a brand
  • Website copy
  • Software code
  • Certain databases

If you need help with understanding intellectual property, 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.