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  • Writer's pictureLaw Office of Gerald R Prettyman

Protecting Ideas with a Patent, Trademark or Copyright

Protecting Ideas with a Patent, Trademark or Copyright.

If you wouldn’t know a Patent from a Trademark or a Copyright, you are not alone. Many people, including lawyers who don’t work with them, don’t know the difference. Here, though, you are lucky enough to have this article in front of you. This is, though, just an overview.

1. A patent applies to a process, machine, manufacture, or composition of matter throughout the United States. In other words, if the idea isn’t a process, machine, manufacture, or composition of matter that can be made, used, offered for sale or sold, a patent won’t cover it.

2. A trademark is a symbol such as a word, phrase, logo or sound that aids the public in distinguishing the goods or services of one company from the goods or services of another company. If the idea is used as a brand of a company’s goods or services, it is a trademark.

3. Copyright applies to literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, and motion pictures and other audiovisual works, sound recordings; and architectural works in any tangible medium of expression. Copyright applies only if (1) the idea is within one of these 8 areas and (2) the idea is recorded in a tangible medium of expression, such a paper, film or electronic recording.

So, what is the ‘takeaway’ from these definitions?

A. Ideas alone are not protectable. To apply for a patent, trademark registration, or copyright registration, the idea must be recorded onto paper or into an electronic file and filed.

B. Describing an act by a person is not protectable. This rule prevents one person from forcing another person to personally perform (or to not perform) thoughts, arm, hand, or leg movements. Thus, a process patent MUST express the process as performed by a machine, but if someone sees you perform your choreography or yoga, and then based on memory does your choreography or yoga, or even teaches someone else the moves, they are not infringing your copyright.

C. No protection applies to laws of nature, nor equations, or to illegal items. This rule applies to prevent one person from preventing public use of a discovery of nature, or of something banned by the government.

D. Trademarks protect the public - not the company. While a brand identifies a company, trademarks give the public certainty of the source supplying the purchased goods and services. For this reason, the trademark process includes a review of whether there is a likelihood of confusion by the relevant public as to the source of the goods.

E. Copyright protects creativity, not effort. Thus, instructions, tables, lists, syntax, fonts, and algorithms lack copyright protection. Copyright does, though, protect the creative material within them, such as comments and even made-up text.

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