How Patents Differ From Copyrights and Trademarks

The term "intellectual property" refers to ideas and concepts that are unique and potentially valuable. These ideas range from a small business invention to an entrepreneur's work of fiction. Intellectual property protection belongs to the person or small business that owns these ideas or concepts.

If you own intellectual property, it means you have intellectual property rights to:

1. Manufacture or license an invention
2. Use certain distinguishing marks on your packaging or commercials
3. Publish copies of creative works (such as sound recordings or books). Businesses and individuals also may license intellectual property from the owner without owning it. Think of this as a college licensing its logo to a clothing company

There are three types of intellectual property a small business owner needs to know. They are:

1. Patents
2. Trademarks (service marks too)
3. Copyrights

These intellectual property classifications are often confused with one another. This article provides information for small business owners focusing on patent law. It shows how patents differ from trademark rights and copyrights.

Definition of a Patent

A patent is a property right granted by the U.S. Patent and Trademark Office (USPTO). These are typically granted for new inventions, new products, and new processes. A patent holder may exclude others from using, making, or selling an invention for a limited time. As long as the applicant pays the applicable maintenance fees, the exclusive right for utility and plant patents lasts for a term of 20 years from the application date. The exclusive rights granted for a design patent lasts for 15 years from the grant date. You can view FindLaw's Patents section for more detailed information on patents.

Different Types of Patents

There are three types of patents: design, utility, and plant.

• Design patent: Granted for a manufactured product's new and original ornamental designs. The appearance of the object receives protection instead of its functionality. One of the most well-known examples is the classic, curvy design of the original Coca-Cola glass bottle.

• Utility patent: Granted for new, non-obvious, and useful inventions for processes, machines, manufactures, and compositions of matter. A utility patent is available if the invention improves on a previous invention.

• Plant patent: Granted for the invention or discovery of an asexually reproducible, distinct, and new plant. A typical example of a plant patent is the Irish potato.

How a Small Business Gets Patent Protection

In order to receive patent protection, a business or individual needs to file a patent application. The application must be for the correct category. The United States Patent and Trademark Office processes patent applications. The USPTO requires filing fees with the application. There are no common law protections for patents. Intellectual property rights only attach if the patent is federally registered with the USPTO.

The Difference Between a Patent and a Copyright

A patent protects inventions and new processes. Copyright protects original works of authorship and artistic works in a tangible form. Published and unpublished original works qualify for copyright protection.

Some of the most common copyrights are works in:

• Literature
• Music
• Art
• Architecture
• Software, including software code
• Choreography

Like a patent holder, the copyright owner has exclusive rights. These rights include the right to reproduce, make derivatives, distribute copies, display the work in public, or perform the work in public. A copyrighted work that is infringed upon can award the holder damages in a lawsuit for misuse.

Copyright law has a common law basis. The creation of the original work in a form the eye sees or ear hears grants the owner certain protections. However, there are limitations to these common law protections. A copyright infringement lawsuit cannot go to federal court unless there is a copyright registration of the work. The U.S. Copyright Office reviews copyright applications and accepts filing fees.

In some cases, an applicant obtains both a copyright and a patent. Overlap can occur between a design patent and copyright in circumstances where the ornamental design qualifies both for a patent and as a work of art subject to copyright protection.

What Is the Difference Between a Patent and a Trademark?

Patents prevent others from making or selling an invention. Trademarks protect the words, symbols, sounds, or logos used to identify the source of goods or services. This stops its usage by other competitors. Trademarks give the owner exclusive use of certain images and phrases. You commonly see brand names trademarked with a ™ or ® if federally trademarked next to the name.

A trademark also gives the holder the ability to stop someone from using a similar mark that would confuse consumers about who was producing the goods or services the consumer was buying. Courts and the USPTO look at the likelihood of confusion test to determine that.

Trademarks, like copyrights, do have some common law protections. However, federal trademark registration is the highest form of protection. The USPTO registers federal trademarks. Should a small business want to expand internationally and file for an international trademark, then a registered trademark must be on file.

Typically, overlap does not occur between patents and trademarks. But it could happen if a design patent protects the ornamental design of the product, and the design is also used as an identifying symbol.

Get Professional Legal Help With Your Patent-Related Issues

Intellectual property law is highly complex. Patent law typically requires a background in both law and engineering. If your inventions are at the heart of what your business does, you should contact a patent attorney for legal guidance. Start today by finding an experienced intellectual property law attorney near you.